Tierney and Comcare (Compensation)

Case [2023] AATA 674

Tierney and Comcare (Compensation) [2023] AATA 674 (5 April 2023)

Division:GENERAL DIVISION

File Number(s):      2021/0437

Re:Mr Paul Tierney

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Ms A E Burke AO, Member

Date:5 April 2023

Place:Melbourne

The Tribunal, having considered all the evidence before it, determines that the Applicant is excluded from any form of compensation under the Safety, Rehabilitation and Compensation Act 1988 as the requirement that he undertake the QOL proficiency assessment from 14 May 2020 was a reasonable administrative action taken in a reasonable manner for the purposes of section 5A(2) of that Act.

Under section 43(1)(a) of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review dated 22 December 2020 to reject Mr Tierney’s claim.

.........................[sgd]...............................................

Ms A E Burke AO, Member

Catchwords

COMPENSATION – where quality online checking requirement of employee found to be significant contributing factor to onset of psychiatric injury – whether quality assurance procedure constituted “administrative action...in respect of the employee’s employment” within the meaning of s 5A of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether condition arose from reasonable administrative action undertaken reasonably – decision affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)

Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2006 (Cth)

Cases

Bryant and National Australia Bank Limited (Compensation) [2021] AATA 2769
Comcare v Drinkwater (2018) 260 FCR 150
Comcare v Mooi (1996) 69 FCR 439
Comcare v Martin (2016) 258 CLR 467
Comcare v Stewart [2019] FCA 365
Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463
Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42
Long v Comcare (2016) FCA 737
O'Callaghan and Comcare (Compensation) [2019] AATA 4378
Su and Comcare [2011] AATA 934
Trewin v Comcare (1998) 84 FCR 171
Woodhouse v Comcare (2021) 285 FCR 14

Secondary Materials

Services Australia, Staff Quality Management Application (QMA) Proficiency Policy, (version 1.4, June 2021)

REASONS FOR DECISION

Ms A E Burke AO, Member

5 April 2023

  1. The Applicant, Mr Paul Tierney, applied for review of a decision made by Allianz, on behalf of Comcare, dated 22 December 2020 which confirmed the original determination of 13 November 2020 to deny liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act). This determination accepted that Mr Tierney suffered from a psychological ailment (“major depressive disorder of variable severity along with anxiety disorder not otherwise specified”) which was contributed to, to a significant degree, by his employment with Services Australia. However, the review officer found Mr Tierney was excluded from receiving any entitlements as his ailment was caused by reasonable administrative action.

  2. On 25 January 2021, Mr Tierney sought review of that decision by the General Division of the Administrative Appeals Tribunal, stating that the decision was incorrect in fact and law.

    BACKGROUND

  3. Mr Tierney commenced working at the Department of Human Services (now Services Australia) (the Agency) on 9 October 1996 and retired in…

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AGLC
Tierney and Comcare (Compensation) [2023] AATA 674
Case
[2023] AATA 674
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Mr Paul Tierney against a decision by Comcare to reject his claim for compensation for a psychological injury. Mr Tierney, a long-serving employee of the Department of Human Services (now Services Australia), alleged that his condition arose from the introduction of a compulsory quality online checker role and the associated proficiency assessment process. The Administrative Appeals Tribunal was required to determine whether Mr Tierney's diagnosed condition constituted a "disease" for the purposes of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) and, if so, whether it was caused by reasonable administrative action taken in a reasonable manner, which would exclude him from compensation.

The Tribunal was asked to consider two primary legal issues. Firstly, whether Mr Tierney suffered from a "disease" as defined by sections 5A(1) and 5B of the Act. Secondly, if a disease was established, whether it arose from reasonable administrative action undertaken in a reasonable manner, thereby engaging the exclusionary provision in section 5A(1) of the Act. The parties agreed that Mr Tierney suffered from a condition significantly contributed to by his employment, but disputed whether the specific action causing the injury was administrative or operational.

The Tribunal found that Mr Tierney suffered from a major depressive disorder with anxious distress, a condition accepted as a "disease" under section 5B of the Act, which was significantly contributed to by his employment, particularly the Quality Online (QOL) proficiency assessment process. However, the Tribunal determined that the requirement for Mr Tierney to undertake this assessment from 14 May 2020 constituted reasonable administrative action taken in a reasonable manner. This conclusion was based on evidence that the claim of unfairness was not substantiated, the supervisor acted supportively, and Mr Tierney declined offers of assistance. Consequently, the exclusionary provision of section 5A(1) applied.

The Tribunal affirmed the decision under review, determining that Mr Tierney was excluded from any form of compensation under the *Safety, Rehabilitation and Compensation Act 1988* due to the finding that the action of requiring him to undertake the QOL proficiency assessment was reasonable administrative action taken in a reasonable manner.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

On 25 January 2021, Mr Tierney sought review of that decision by the General Division of the Administrative Appeals Tribunal, stating that the decision was incorrect in fact and law. BACKGROUND Mr Tierney commenced working at the Department of Human Services (now Services Australia) (the Agency) on 9 October 1996 and retired in February 2022 as an APS4 Service Officer. In this role he was primarily responsible for processing Age Pension claims. Mr Tierney submitted a Comcare claim on 3 September 2020 for a “psychological injury”, stating that he first noticed symptoms on 2 July 2020 at 3:00pm. In an incident report of the same date, Mr Tierney advised that he sustained the injury following “Further return in QOL for perceived trivial issue” and he described the circumstances as “QOL Tool is unduly harsh and unreasonable and does not take into account possible psychological consequences”. The following timeline, produced by Services Australia, outlines the agreed events that proceeded Mr Tierney’s Comcare claim: Mr Tierney’s counsel summarised the background to Mr Tierney’s claim at the commencement of the hearing as follows: (a)At the time of his injury, Mr Tierney’s role in processing Age Pension claims required him to maintain a certain level of accuracy. To assess his accuracy, he was monitored constantly throughout the year by checking samples of claims which he had processed, usually at a rate of 2-5% of the total claims. In addition to this ongoing assessment of his accuracy, he was also required to undertake a proficiency assessment in which 100% of the claims he had processed were checked (‘QOL proficiency assessment’), which occurred at a frequency determined by his supervisor but not more frequently than every 12 months. This QOL proficiency assessment process entailed having 20 claims checked over a set period and if an error was detected, no matter how significant, it would be ‘returned’ as a fail. In order to pass the QOL proficiency assessment, one had to meet a 95% accuracy threshold, which meant that if there was more than one ‘return’ out of 20 claims, then one would not meet the required 95% accuracy threshold. (b)Mr Tierney had undergone his yearly QOL proficiency assessment in September 2019 which he passed as he met the 95% accuracy threshold. It is the Agency’s policy that he was only required to undertake the QOL proficiency assessment not more frequently than every 12 months. (c)Mr Tierney learned at a team meeting in about October 2019, a month after he had completed his QOL proficiency assessment for 2019, that there would be a change in the duties of all APS4 Service Officers. He was advised at this team meeting that all APS4 Service Officers would now be required to undertake two additional tasks: one being a peer support officer role and the other a quality online checker role. (d)Though these roles were contained in the APS4 Service Officer job description, prior to this announcement they had been undertaken on a volunteer basis only. These roles would no longer be voluntary but compulsory for all APS4 Service Officers. (e)Prior to this announcement, APS4 Service Officers could elect to undertake the role of quality online checker but they first had to demonstrate that they met the 95% accuracy criteria. Now that it was compulsory for all APS4 officers, Mr Tierney and all other APS4 Service Officers were advised that they would be required to undertake the QOL proficiency assessment and pass at the 95% accuracy level. This applied to Mr Tierney despite him having only undergone the process the month prior. Mr Tierney’s team leader advised that this assessment was not performance related but was upskilling for all APS4 Service Officers to perform these additional tasks. (f)Prior to this meeting, Mr Tierney had volunteered and been selected to act as technical peer support officer, having met the criteria for that role. (g)On learning of the decision to change the duties of APS4 Service Officers to include the quality online checker role, Mr Tierney discussed it with his team leader and told him that he did not want to do the quality online checker role and did not want to undergo the QOL proficiency assessment again, having just completed it a month prior. (h)Relevantly, Mr Tierney told his team leader that he didn’t want to be checking other people’s work because not only did it make others feel ill, but it also made him feel ill. He stated that he did not want to be responsible for making other team members miserable. He also asked his team leader if he could be exempted because he intended to retire in 18 months. (i)Mr Tierney claimed that his team leader responded with words to the effect of, “you’ve done this before, it’s a requirement for everyone”. (j)Mr Tierney began the process of undertaking the QOL proficiency assessment in relation to the quality online checker role in May 2020, and in the course of undertaking this he developed a major depressive disorder and anxiety. (k)He sought treatment from the employee assistance program (EAP) in June 2020. Mr Tierney repeatedly expressed his concerns to his team leader, Mr So, telling him that he was feeling stressed by the QOL proficiency assessment process. (l)The situation culminated when Mr Tierney could no longer continue working and he saw his general practitioner on 3 July 2020. He ceased work for a short time, then returned on modified hours until he was eventually stood down and his employment formally ended in February 2022.

Evidence

Evidence Before The Court

The key issues for the Tribunal’s determination are:(a)Did Mr Tierney suffer from a “disease” for the purposes of ss 5A(1) and 5B of the Act?(b)If so, was the “disease” suffered as a result of reasonable administrative action taken in a reasonable manner in respect of his employment, such that the exclusionary provision in section 5A(1) of the Act applies?EVIDENCE BEFORE THE TRIBUNALMedical Dr Kausar Abbas, Mr Tierney’s general practitioner, opined in a report of 30 December 2021: History of patient symptoms as per medical notes:Mr Paul Tierney reported that he has been going through high degrees of stress at his work place. He reported that he has been working at centrelink department for long time and he has been subject to quality process which is very rigorous and it increased his stress. He has not been able to sleep due to this stress. He has been very anxious and reported early morning tension headaches. Current symptoms and signs:His symptoms of anxiety are very severe and persistent since July 2020. He reported poor sleep, tension headaches, panic feeling and reduced attention and concentration. He seem to be under lot of stress given the situation at work.Diagnosis/severity:Adjustment disorder with anxious mood. His symptoms are at severe and persistent. Given that there has not been much improvement since the injury, the condition is likely to be permanent and long term.…Total/permanent disability:Yes, given no improvement over a long period, his condition is permanent. He qualifies for total permanent disability. He is unlikely to improve with any available interventions such is training or rehabilitation. Associate Professor Abdul Khalid, consultant psychiatrist, opined in a medicolegal report of 14 December 2021:SUMMARY AND ASSESSMENTMr Tierney is a 55-year-old male who worked with Services Australia for 24 years. He said that the problems started when there were changes in the workplace in 2019 and everyone was required to be a quality online checker. He said that earlier the work was done by volunteer workers. He said that his supervisor was picking up his errors and standing at his desk staring at him. He said that there are lots of in-house corrections in the system and other workers have a cartel and they ask each other to correct and pass it. He said that he felt targeted. He said that he was told that if he put a complaint in he would be tortured.Mr Tierney said that he felt anxious and started experiencing twitching in his lips, difficulties sleeping and headaches. He said that his family life was falling apart. He said that when he was looking at the computer screen it was going blank. He said that he was obsessively checking his work and rechecking it slowly and he got close to 17-18/20, although he was required to get 19/20 correct. He said that in 2020 he stopped work for six weeks and his supervisor was phoning him and asking him for more medical information, although he had provided certificates. Mr Tierney said that he returned to work two to three days per week but his attendance declined and eventually he saw his doctor who certified him for a partial invalidity pension for three days per week. He said that he returned to work one day per week which he did for one to two months and then saw his doctor again who told him that he was partially invalidated. He lodged a WorkCover claim in September 2020 which was declined on the basis of reasonable administration action. Mr Tierney had six EAP sessions, following which he has been seeing psychologist, Ms Zoe Gruneska. He has been prescribed anti-anxiety medication, propranolol 2 tablets daily. He had experienced some stress in the past when he was diagnosed with cancer and when he divorced 20 years ago, although he did not receive a formal diagnosis of a psychiatric condition.On mental state examination, Mr Tierney was markedly anxious and shaking of both his legs and both his hands and tremulousness of the body was noted. His voice was at times shaky and dryness of mouth was noted. He expressed thoughts of life not being worth living but he denied any suicidal plan or intent. He expressed ideas of helplessness and hopelessness. Based on the history, mental state examination and the documents provided to me, in my opinion Mr Tierney’s diagnosis is a major depressive disorder with anxious distress according to the DSM-5 diagnostic criteria.

Decision

Reasons for decision

The Tribunal, having considered all the evidence before it, determines that Mr Tierney is excluded from any form of compensation under the SRC Act as it has determined the action of requiring him undertake the QOL proficiency assessment form 14 May 2020 was a reasonable administrative action taken in a reasonable manner for the purposes of section 5A(2) of the Act.DECISION Under section 43(1)(a) of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review dated 22 December 2020 to reject Mr Tierney’s claim.

Ratio Decidendi

Legal Principle Established

Counsel submitted the QOL proficiency assessment was undertaken in a reasonable manner because:(a)the claim that Mr So laughed at Mr Tierney did not emerge in the evidence at hearing;(b)the contention that it was unreasonable for Mr Tierney to be required to undertake the QOL proficiency assessment from 14 May 2020 because it was causing him psychological injury was simply not made out;(c)Mr Tierney’s evidence was coloured because he was invested in his belief that the QOL proficiency assessment was unfair, however, evidence from Mr So was measured and accepted the process was stressful for all employees undertaking it;(d)Mr So did not have the authority to exempt Mr Tierney from the QOL proficiency assessment;(e)whilst Mr Tierney had advised Mr So that he was going to retire soon, Mr So did not seek approval to exempt Mr Tierney from the QOL proficiency assessment because Mr Tierney was not due to retire for another two years; (f)Mr Tierney was offered assistance with the QOL proficiency assessment, but he was dismissive and did not take up any of the offers for assistance;(g)Mr So reduced Mr Tierney’s workload such that he was only required to process one claim a day to assist him to reach the requisite 95% accuracy rate to pass the QOL proficiency assessment, but even this reduced workload still resulted in some errors; and (h)Mr So attending at Mr Tierney’s desk after he received a return was Mr So being a supportive manager. CONSIDERATION Neither party sought to present medical arguments as Comcare has accepted that Mr Tierney was suffering from an ailment as defined by the SRC Act, which was significantly contributed to by his employment with Services Australia as required by section 5B of the SRC Act. However, the Respondent contended that liability for Mr Tierney’s claimed psychological condition should be excluded on the basis that the stated employment contribution constituted reasonable administrative action undertaken in a reasonable manner. Disease The Tribunal relied upon the consistent medical evidence of both Dr Abbas and Associate Professor Khalid who both diagnosed Mr Tierney as suffering from a major depressive disorder with anxious distress. This condition was sustained as a result of his employment with the Agency and, in particular, because of the QOL proficiency assessment process. In considering the medical evidence, the Tribunal concludes that it is probable that, but for the requirement to undertake the QOL proficiency assessment, Mr Tierney’s “major depressive disorder with anxious distress” would not have arisen. The Tribunal is satisfied that Mr Tierney’s mental health condition was significantly contributed to by his employment, such that it is a “disease” within the terms of section 5B(1) of the SRC Act. There seems to be no disagreement that Mr Tierney’s injury arose from his requirement to undertake the QOL proficiency assessment. The parties’ dispute was whether this requirement to undertake the QOL proficiency assessment was administrative or operational action. If it was administrative action then it is subject to the exclusion provisions of the SRC Act. If it was operational then the exclusion does not apply, as decided in Reeve. For the Tribunal to consider whether the matter was operational or administrative, it must determine when the injury arose. As with the case of Drinkwater, the Tribunal must consider if Mr Tierney’s injury arose when he was undertaking the QOL proficiency assessment, that is whether it was action taken by an employer which is specific to a particular employee.