FEDERAL COURT OF AUSTRALIA
Kelk v Australian Postal Corporation [2014] FCA 147
IN THE FEDERAL COURT OF AUSTRALIA | |
| Applicant | |
AND: | Respondent |
DATE OF ORDER: | |
WHERE MADE: |
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicant pay the respondent’s costs of and incidental to the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
QUEENSLAND DISTRICT REGISTRY | |
GENERAL DIVISION | QUD 140 of 2013 |
BETWEEN: | ANDREA KELK Applicant
|
AND: | AUSTRALIAN POSTAL CORPORATION Respondent
|
JUDGE: | GREENWOOD J |
DATE: | 28 FEBRUARY 2014 |
PLACE: | BRISBANE |
REASONS FOR JUDGMENT
1 These proceedings concern an application by way of an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the “AAT Act”) from a decision of the Administrative Appeals Tribunal (the “Tribunal”) constituted by Deputy President Hack SC. The Tribunal’s decision was delivered on 15 February 2003: Kelk and Australian Postal Corporation [2013] AATA 75.
2 By that decision, the Tribunal affirmed four reviewable decisions made by the Australian Postal Corporation (“Australia Post”) in respect of claims made by Mrs Kelk under particular provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the “SRC Act”).
3 Mrs Kelk sought review before the Tribunal of the following four reviewable decisions made by the respondent.
4 First, in matter 2011/0259, the respondent on 11 November 2010, affirmed a determination dated 9 September 2010 which denied liability under s 14 of the SRC Act in respect of Mrs Kelk’s claim of “work related stress, overuse injury left and right upper arms”.
5 Second, in matter 2011/1494, the respondent on 12 April 2011, affirmed a determination made on 24 March 2011 which denied liability to pay Mrs Kelk compensation under s 19 of the SRC Act for total incapacity for periods of leave taken between 24 July 2010 and 5 October 2010, on the footing that Mrs Kelk’s contention of incapacity during the period was not related to her condition of “hoarse voice associated with supraglottic muscle dystonia [dysphonia]” (the “voice condition”) which had been accepted by the respondent as a condition suffered by Mrs Kelk with a date of injury of 29 November 2010.
6 Third, in matter 2011/1499, the respondent on 12 April 2011, affirmed a determination made on 28 March 2011 which denied liability to pay incapacity payments to Mrs Kelk for the period of 11 March 2011 to 11 April 2011 in relation to Mrs Kelk’s accepted “voice condition”.
7 Fourth, in matter 2011/5444, the respondent on 5 December 2011, affirmed a determination made on 11 November 2011 which denied liability to pay permanent impairment compensation under ss 24 and 27 of the SRC Act to Mrs Kelk in relation to Mrs Kelk’s accepted voice condition, on the footing that the condition did not result in at least 10% “Whole Person Impairment” under the Guide to the Assessment of the Degree of Permanent Impairment, 2nd Edition (“Comcare Guide”).
8 In the proceedings before the Tribunal, Mrs Kelk was represented by Mr Grey of Counsel on instructions from Emanuel Solicitors.
9 In the proceedings before this Court, Mrs Kelk is self-represented.
10 In her application, Mrs Kelk puts the questions of law raised by the application for the purposes of s 44 of the AAT Act in these terms:
1. … The decision maker when making [the decision] failed to take into account crucial oral and written evidence provided by Wendy McCormick in support of the applicants [sic] credibility and in support of the applicants [sic] version of events at work regarding work processes and changes … that would have affected the [Tribunal’s] decision. The decision maker failed to take a number of crucial written supporting evidence into account for consideration when deciding on the applicants’ [sic] credibility which would have affected the decision.
2. The applicant was not provided with procedural fairness.
[emphasis added]
11 By her application, Mrs Kelk requests this Court to make a finding of fact that she “is a person of credibility”.
12 In terms of the orders sought, Mrs Kelk frames the orders sought in these terms:
1. The applicant asks that all evidence submitted to the Tribunal that supports the applicants [sic] version of events and credibility is re-examined, and that the medical evidence submitted by the applicant is reconsidered and accepted as reliable, based on the fact that the applicant is a person of credibility, and that the decisions in each matter are set aside and are substituted, and find that the respondent is liable for the applicant sustaining the claimed injuries.
13 The grounds relied upon by Mrs Kelk are framed by her in this way in the application:
1. Written and oral evidence provided in support of the applicants [sic] version of events at work and regarding the applicants’ [sic] credibility by Wendy McCormick given at the Tribunal hearing [was] not taken into consideration by the decision maker when making [his] decision. A number of crucial documents admitted to the [Tribunal] prior to the hearing, including Comcares’ [sic] OH&S report into work practices at the Australia Post Call Centre in Brisbane (NCCC – Northern Customer Call Centre) [Category 1], completed staff surveys [Category 2], statutory declarations admitted to the [Tribunal] [Category 3] provided by the applicants [sic] work colleagues from the call centre in support of the applicants’ [sic] version of events at work, all of them supporting the applicants’ [sic] credibility and version of events were not taken into account by the decision maker.
2. The applicant was denied natural justice as the specific inconsistencies and concerns referred to in the decision by the decision maker regarding my credibility were not put to me during the hearing, therefore I was denied the opportunity to respond, and provide further written and oral evidence to prove my credibility regarding the issues raised.
[emphasis added]
14 It can be seen that Mrs Kelk’s fundamental proposition is that the Tribunal fell into error by failing to take into account the evidence of Ms McCormick and the three categories of documents described at [13] of these reasons in making a finding of fact that Mrs Kelk was, before the Tribunal, an unreliable witness who had, in particular respects, concocted her evidence. Mrs Kelk contends that in failing to have regard to the identified material, the Tribunal failed to have regard to considerations relevant to that factual question which was fundamental to an adverse determination of the four applications before the Tribunal. The respondent has filed a notice of objection to the competency of the appeal on the footing that the notice of appeal does not frame a precise question or questions of law to be determined on the appeal.
Some further background matters
15 On the morning of the hearing, Mrs Kelk sought to hand up a Part C volume of documents she proposed to rely upon in support of the application. Mr Harding of Counsel on behalf of the respondent told the Court that he had been given the documents only at 10.00am that morning and had not had a chance to determine whether Mrs Kelk’s volume contained any material not properly before the Tribunal (T, p 2, lns 29-40). Although Mrs Kelk initially contended that her Part C volume of documents contained only material before the Tribunal, it emerged in the course of exchanges with Mrs Kelk that a significant number of documents contained within her Part C volume were not documents falling within the “T documents” before the Tribunal nor documents otherwise admitted into evidence as exhibits in the course of the hearing before the Tribunal. It therefore became necessary to identify the documents within Mrs Kelk’s Part C folder which were copies of material not in evidence before the Tribunal.
16 In addition, Mrs Kelk sought to agitate on the morning of the hearing before this Court, an interlocutory application (in effect, under r 33.29 of the Federal Court Rules 2011) for leave to rely upon additional evidence which supported, she contended, the veracity of the evidence she had given before the Tribunal in her statements and in her oral evidence. Mrs Kelk’s interlocutory application filed on 17 September 2013 was supported by an affidavit filed on the same date. In her affidavit, Mrs Kelk said that the documents were “relevant in proving [her] credibility” and represented evidence demonstrating a denial of “procedural fairness” and a “denial of natural justice”. Paragraph 2(c) of her affidavit lists 23 documents she sought leave to rely upon in seeking to demonstrate error of law on the part of the Tribunal, having regard to the grounds Mrs Kelk agitates. At para 2(d) of her affidavit, Mrs Kelk deposes that the evidence was not adduced before the Tribunal because “during the Tribunal process, the appellant was not accused of concocting allegations and exaggerating her evidence, and her credibility regarding specific events was not challenged”.
17 In oral submissions, Mrs Kelk said that the documents the subject of the interlocutory application had been provided to her instructing solicitors and Counsel for the purposes of the Tribunal proceedings. However, Mrs Kelk contended that the documents had not been relied upon by her lawyers in the conduct of the proceeding. Mrs Kelk contended that in the conduct of the proceedings before the Tribunal, she had not anticipated that the question of her credit would be alive and thus she, and her advisers, had not put on before the Tribunal material which independently verified the various factual matters about which Mrs Kelk gave evidence such as the respondent’s work practices within the Northern Call Centre; her version of relevant events; and her evidence concerning the scope, nature and content of the symptoms of any condition or injury she said she had suffered, said to have been significantly contributed to by her employment.
18 However, it is clear from the material before the Tribunal (as Mrs Kelk ultimately conceded: see T, p 31, lns 28-46; T, p 32, lns 1-47; T, p 33, lns 1-47; T, p 34, lns 1-41) that the respondent vigorously contested Mrs Kelk’s claims in relation to work practices within the Call Centre; issues in relation to key performance indicators; issues in relation to management interaction with Mrs Kelk and the question of whether Mrs Kelk had suffered a condition or injury of the kind contended. Additionally, it is plain from the Tribunal transcript (an example of which is T, p 170, lns 3-16, among other references) that Mr Grey, on behalf of Mrs Kelk, accepted that the truth of the version of the facts put forward by Mrs Kelk was fundamentally in issue throughout the course of the Tribunal proceedings. Ultimately, the respondent before the Tribunal put on written submissions in which it contended that the evidence of Mrs Kelk was unreliable and ought not to be accepted unless corroborated.
19 The extensive written submissions on behalf of Mrs Kelk put on before the Tribunal on her behalf assert that Mrs Kelk’s evidence ought to be accepted and that there is no proper basis for regarding her evidence as unreliable, and to the extent that there are differences between her version of events and the version given by witnesses on behalf of the respondent (and particularly Mrs Solomon and Mr Muir), those differences were matters simply going to a different perception of events.
20 Ultimately, the Tribunal took the view (and found) that it ought not to rely upon the evidence of Mrs Kelk unless her evidence was independently supported (para 29 of the Tribunal’s reasons).
21 Since the question of Mrs Kelk’s credit or the truth or otherwise of her factual contentions was in issue before the Tribunal, and the relevant material had been provided by Mrs Kelk to her solicitors and Counsel, leave was refused to rely upon the additional material Mrs Kelk sought to put in evidence in these proceedings, either through the vehicle of her inclusion of documents within the Part C material, or by reason of leave, as a basis for demonstrating legal error on the part of the decision-maker. The decision-maker could not have failed to have regard to documents which were not put to the decision-maker and which could have been put in evidence at the Tribunal hearing.
22 In the affidavit supporting Mrs Kelk’s application for leave to rely upon additional material, the documents are described without any identifying dates attributed to them. In the course of the preliminary interlocutory application, the Court identified each document with Mrs Kelk (and with the respondent), its proper description, reference number and the date. Apart from one document described as an email from Mr Joel Muir addressed to the North Consumer Inbound 3 Team dated 14 July 2010 (and sent at 8.54am) which was in evidence before the Tribunal in any event as an exhibit (and also within the T documents), Mrs Kelk was refused leave to rely upon the remaining documents the subject of her interlocutory application. The documents not before the Tribunal were removed from the Part C volume where they were initially included, which Mrs Kelk handed up at the outset of the hearing.
23 One further procedural matter in relation to the interlocutory application ought to be mentioned. The hearing of this matter took place on 15 October 2013. Mrs Kelk’s interlocutory application was filed on 17 September 2013. However, the application and supporting affidavit was not served on the respondent until approximately 5.00pm on the day before the hearing (T, p 11, lns 5-6). Mrs Kelk’s explanation for not serving the respondent with the application and supporting affidavit was (T, p 11, lns 39-42) that she had been told by a member of the staff of the Federal Court Registry that it was not necessary to serve the interlocutory application and supporting affidavit on the respondent.
24 I have read in close detail all of the T documents before the Tribunal in the four matters identified at [4] to [7] of these reasons and all of the exhibits in evidence before the Tribunal. I have also read a very large part of the Transcript of the Tribunal proceeding including all of the oral evidence of Mrs Kelk, Mrs Solomon, Mr Muir, Ms McCormick and the medical evidence, having regard to the emphatic findings of the Tribunal concerning the issue of Mrs Kelk’s credit and the challenge she makes to those findings on the footing that in reaching such findings of fact (central to the decision itself), the Tribunal failed to have regard to relevant material, that is, relevant considerations.
25 It will be necessary to consider in some detail the findings of fact made by the Tribunal and the basis for those findings. However, before doing so, I will set out for the sake of completeness the documents the subject of Mrs Kelk’s interlocutory application for leave which was refused. The documents are these:
1. A statutory declaration sworn by Ms Sally Ann Hyam on 30 September 2011 (marked A8 in Mrs Kelk’s folder).
2. An email from Mrs Kelk to Ms Rebecca Solomon and Ms Suzi Wharton dated 9 November 2010 at 9.59am (marked A7 in Mrs Kelk’s folder).
3. An email from Mrs Solomon to Mrs Kelk dated 2 December 2010 at 5.30pm (marked A9 in Mrs Kelk’s folder).
4. A statutory declaration sworn by Ms Sally Anne Brown sworn 20 September 2011 (marked A32 in Mrs Kelk’s folder).
5. An email from Ms Brown to Mr Craig Palmer, copied to Chandre van der Merwe and Mrs Kelk dated 3 May 2011 (marked A31 in Mrs Kelk’s folder).
6. An email from Mrs Kelk to Ms Lin Stiles dated 17 December 2010 at 6.44am (marked A10 in Mrs Kelk’s folder).
7. A document described as “Plan of Action Andrea Kelk” signed by Mrs Kelk and Mrs Solomon dated 3 March 2010 (but actually on 3 March 2011) concerning an expectation that Mrs Kelk would meet a current adherence requirement of 95% (marked A13 in Mrs Kelk’s folder).
8. An email from Mr Joel Muir to “DL HQ CCC Nth Con Inb 3” re “Important Morning Notices” dated 14 July 2010 at 8.54am (which became Exhibit 9 in the Tribunal proceedings (marked A1 in Mrs Kelk’s folder).
9. An email chain concerning an occupational health and safety complaint by an employee of the respondent commencing with an email from Mr Phil Hibble to Mr Rodney Drake dated 4 August 2011 at 8.18am and an email from Mr Hibble to Mrs Kelk dated 4 August 2011 at 10.43am (marked A29 in Mrs Kelk’s folder).
10. A statutory declaration sworn by Ms Suzi Wharton on 21 March 2013 (marked A11 in Mrs Kelk’s folder).
11. A copy of an Occupational Health and Safety Survey form completed by Ms Sally Hyam on 28 February 2011 (marked A23 in Mrs Kelk’s folder).
12. A copy of an Occupational Health and Safety Survey form completed by Ms Debra Newman on 2 March 2011 (marked A24 in Mrs Kelk’s folder).
13. A copy of an Occupational Health and Safety Survey form completed by Ms Tabatha May on 8 March 2011 (marked A25 in Mrs Kelk’s folder).
14. A copy of an Occupational Health and Safety Survey form completed by Ms Wendy McCormick on 6 March 2011 (marked A26 in Mrs Kelk’s folder).
15. A copy of an Occupational Health and Safety Survey form completed by Ms Kathy McDonald on 9 March 2011 (marked A20 in Mrs Kelk’s folder).
16. A copy of an Occupational Health and Safety Survey form completed by Martez Holmes-Brown on 24 February 2011 (marked A21 in Mrs Kelk’s folder).
17. A copy of an Occupational Health and Safety Survey form completed by Mrs Kelk (undated) (marked A27 in Mrs Kelk’s folder).
18. An email from Ms Rebecca Wright to Mrs Kelk dated 10 March 2011 at 2.39pm (marked A 28 in Mrs Kelk’s folder).
19. An email from Mrs Kelk to Mr Ahmed Fahour dated 30 March 2011 and an email from Mr Fahour to Mrs Kelk copied to Ms Catherine Walsh and Mr Brady Jacobsen dated 30 March 2011 (marked A17 in Mrs Kelk’s folder).
20. An email by Mrs Kelk to Comcare dated 28 March 2011 at 10.42am (marked A16 in Mrs Kelk’s folder).
21. An email from Mr Muir to “DL HQ CCC Nth Con Inb 3” re “CCC Current Service Level” dated 22 July 2010 at 4.06pm (marked A2 in Mrs Kelk’s folder).
22. A document described as a report of Dr Ventzi Bonev, Neurologist, dated 1 June 2009 arising out of what is described as a sensory nerve-conduction study (a copy of which was handed to the Court by Mrs Kelk).
23. A document described as a report of ultrasound results of Mrs Kelk’s right wrist dated 9 November 2011 by Dr Timothy Demetriades, Radiologist (a copy of which was handed to the Court by Mrs Kelk).
26 These documents at [25] are the documents recited in more general terms in Mrs Kelk’s affidavit.
27 Apart from these documents there were other documents within the Part C folder Mrs Kelk handed up which were not in evidence before the Tribunal either as part of the T documents or tendered as an exhibit. Document A4 is a letter dated 28 September 2010 from Ms Suzi Wharton to Mr Vernon Lawrence under the reference “Task Break Period for Call Centres – SBE Operators”. This document did not form part of the T documents in any of the four matters before the Tribunal and was not an exhibit in the Tribunal proceedings.
28 Document A5 is a letter from Mr Phil Hughes, State Secretary CW Union of Queensland to Mr Ted Butler, National Manager, Australia Post Customer Contact Centres dated 26 November 2010. This document did not form part of the T documents nor was it an exhibit.
29 Document A12 is described as Document T22 in Matter 2011/1494 as “Undated Manager’s Statement” which is an undated statement of Mrs Solomon. This document was in evidence before the Tribunal.
30 Document A14 appears to be Document T24 in Matter 2011/1494 being Mrs Kelk’s claim for rehabilitation and compensation dated 6 December 2010.
31 Document A15 is an email from Mrs Solomon to Mrs Kelk dated 29 April 2011. This document did not form part of the T documents and nor was it tendered in evidence.
32 Document A18 did not form part of the T documents and nor was it tendered in evidence.
33 Document A19 is a two page document dated 23 May 2011. It is marked as Document T8 in Matter 2011/3361 which was not one of the four matters before the Tribunal for review.
34 Document A22 consists of emails dated 7 February 2011 from Martez Holmes-Brown to Mrs Kelk. These documents were not part of the T documents nor exhibits in the proceeding.
35 The documents included within Mrs Kelk’s Part C volume of documents which were not before the Tribunal either as part of the T documents or tendered as an exhibit were removed from Mrs Kelk’s folder for the purposes of determining the questions in issue in the proceedings before the Federal Court and leave was refused to rely upon the documents described at [25] (apart from Document 8) (T, p 34, lns 16-39).
36 It is now necessary to consider the findings of fact made by the Tribunal and the basis upon which those findings were made.
The Tribunal’s findings
37 Mrs Kelk commenced employment with Australia Post in 1995 at the age of 28 initially working as a Postal Services Officer. In 2000, Mrs Kelk became a Senior Customer Service Consultant in Australia Post’s Milton Customer Relation Centre (para 3). From 2007, Mrs Kelk began dealing with customer enquiries received by Australia Post by email and in that role she was required to use a computer keyboard and mouse during her working day (para 3). Mrs Kelk gave evidence before the Tribunal that during this period of her employment from 2007 she began to suffer pain in her left hand and arm, although subsequently she was able to move to a position that involved significantly less keyboard work which she said reduced the pain in her hand and arm (para 3).
38 In February 2010, Mrs Kelk’s role within Australia Post changed. At that time she joined a group of employees dealing with complaints and enquiries about mail redirections. Mrs Kelk gave evidence before the Tribunal that in this role the amount of typing she was required to do significantly increased and she was dealing with more complex complaints from customers that required more time to resolve. Mrs Kelk gave evidence that all of the customers she dealt with were irate (para 4).
39 Mrs Kelk gave evidence that in approximately April or May 2010 she first noticed that her voice was becoming weaker. She found it difficult to swallow and developed pain and tension in her throat. She said that she consulted her General Practitioner, Dr Peter Hew, when these problems began (para 5). At para 5, the Tribunal notes that Dr Hew’s first clinical note of an attendance upon Mrs Kelk concerning complaints in relation to “her throat” is dated 17 July 2010 and the note Dr Hew made of a subsequent consultation with Mrs Kelk on 24 July 2010 refers to the symptoms concerning her throat having been present since the beginning of the month, namely, the beginning of July 2010.
40 In July 2010, Mrs Kelk’s supervisor was Mr Joel Muir (para 6).
41 On 22 July 2010, Mrs Kelk had a number of conversations with Mr Muir which he documented contemporaneously in a document described as an “Issue Register” (para 6, Ex 30). The Tribunal notes at para 6 that Mr Muir’s Issue Note records Mr Muir saying to Mrs Kelk in the afternoon of 22 July 2012 that Mrs Kelk looked noticeably upset and that Mrs Kelk told him that she would “not take anymore [sic] calls today as she thought the new expectations were stupid and not reasonable”. The following day Mrs Kelk called in to say that she was sick and Mr Muir’s note of that conversation is recorded at para 6 of the Tribunal’s reasons in these terms:
Andrea advised that she believes the work load [sic] is unreasonable and she is very emotional. This has led to her being unwell and stressed. I advised due to her stating this as a work related [sic] we will have to follow the specified process … She is also lodging a compliant [sic] with com care [sic].
42 Mrs Kelk did not return to work thereafter until early October 2010 (para 6).
43 At para 7, the Tribunal notes that Mrs Kelk attended Dr Hew on 24 July 2010. The Tribunal extracts aspects of Dr Hew’s subsequent report of Mrs Kelk’s complaints made to him, in these terms (Point 3, History, at T 48, Ex 2(1), Dr Hew’s response to questions, dated 29 October 2010 at p 186):
Mrs Kelk stated she had become even more stressed at work since the unrealistic demands placed by management at the Australia Post Call Centre at the beginning of this year. She stated that she was having to be constantly typing on her keyboard with customer on hold online. She stated that staff numbers had been reduced and as a consequence of her workload and the workload of remaining staff had trebled. This was causing her to;
1. develop tension headaches in her temporal area, shoulder and neck.
2. pains in both her arms, forearms, wrist, dorsum of hands and fingers from continual typing without appropriate breaks
3. making her ill tempered, teary and tense.
She also states that her symptoms are worse at the end of her working shift and improves with rest over the weekends. She also states that she leaves work in a highly stressed state at the end of a shift.
Mrs Kelk also complained of foods and liquids getting caught in her throat when she swallows. However a subsequent barium swallow was reported normal. This she attributes to being caused from stress from her work.
44 At para 8, the Tribunal notes that Mrs Kelk submitted the first of a number of claims for compensation (dated 2 August 2010) to Australia Post for a condition described as “work related stress & overuse injury left & right upper arm” and that Mrs Kelk was referred by Australia Post to a clinical psychologist, Dr Allison Bocquee, for examination. Also at para 8 the Tribunal notes that Dr Bocquee concluded that Mrs Kelk appeared to meet the diagnostic criteria for “adjustment disorder with mixed anxiety and depressed mood”. Australia Post rejected Mrs Kelk’s claim on 9 September 2010 (para 8). That decision was affirmed on 11 November 2010.
45 At para 10, the Tribunal notes Mrs Kelk’s contention that when she returned to work in early October 2010 her voice and the pain in her arms had improved with a break from work but that the symptoms returned once she resumed work.
46 Mrs Rebecca Solomon became Mrs Kelk’s supervisor within a short period after Mrs Kelk’s return to work in October 2010 (para 11). A significant discussion took place between Mrs Kelk and Mrs Solomon on 25 October 2010 (para 11). Accounts of the conversation differ although it was common ground between the parties before the Tribunal that Mrs Kelk asked to be moved by Mrs Solomon to an “outbound role”, being one that would not involve Mrs Kelk in receiving customer calls (para 11).
47 At para 12, the Tribunal notes that on 29 November 2010, Mrs Kelk completed and lodged an Incident Report in which she complained of “difficulty with swallowing, losing voice” and “vocal overuse – caused by excessive talking without breaks” (Document T21, Ex 2(2)). The Tribunal also notes at para 12 that the Incident Report records the injury as having occurred on 29 November 2010 as an aggravation of a previous injury which occurred or began on 3 May 2010. The Tribunal notes Mrs Kelk’s explanation of the recorded date of the incident on the basis that the computer on which she completed the Incident Report (being an Australia Post Incident Report document) would not allow her to enter a date on the form earlier than the date of the report. The Tribunal notes Mrs Kelk’s evidence that she selected 3 May 2010 as the date of the previous injury because, first, a particular date was required to be entered in order to properly complete the form, and second, it was around April/May that Mrs Kelk first noticed the problem she had described in the Incident Report.
48 At para 13, the Tribunal notes that Mrs Kelk consulted Dr Hew on 4 December 2010 complaining of hoarseness of voice, a dry throat and difficulty swallowing which she attributed to constantly talking on the phone to customers without adequate rest breaks. At para 13, the Tribunal notes that Dr Hew provided Mrs Kelk with a Medical Certificate requiring that from 4 December 2010 to 4 March 2011 she be given adequate vocal rest by Australia Post of five to 10 minutes per hour at work (Document T23, Ex 2(2)).
49 On 6 December 2010, Mrs Kelk lodged a claim for compensation (Document T24, Ex 2(2)) for “vocal overuse injury” said to have been first noticed by her in April 2010 (para 14).
50 Australia Post referred Mrs Kelk to a Consultant Ear, Nose and Throat Surgeon, Dr Donald Jobbins, for examination. Dr Jobbins diagnosed Mrs Kelk as having a hoarse voice associated with “supraglottic muscle dystonia” and suggested a barium swallow and a period of voice therapy (para 14).
51 On 9 March 2011, Australia Post accepted liability to pay Mrs Kelk compensation for her condition of hoarse voice associated with supraglottic muscle dystonia. The condition is properly described, however, as “dysphonia”, rather than “dystonia”. This latter term was used in error by Dr Jobbins and adopted by Australia Post when accepting liability to pay compensation for the condition, on the footing that the date of injury was 29 November 2010. On 11 March 2011, Mrs Kelk obtained a Medical Certificate (Document T35, Ex 2(2)) from Dr Hew which recited that she was unfit for work from 11 March 2011 to 11 April 2011 with the Certificate reciting that Mrs Kelk had been referred to a Speech Pathologist (para 15).
52 At para 16, the Tribunal observes that Australia Post’s acceptance of liability for the condition just described prompted Mrs Kelk to send an email to Australia Post on either 23 or 24 March 2011 requesting that her personal leave utilised from July 2010 be re-credited to her. Australia Post treated that request as a claim for compensation for total incapacity on the part of Mrs Kelk for a variety of periods of leave taken by her between June 2010 and October 2010 (para 16). Australia Post refused Mrs Kelk’s claim for compensation in the form of restoration of her leave, on 24 March 2011. On 28 March 2011, Mrs Kelk sought reconsideration of that decision confined to the period 24 July 2010 to 5 October 2010 when she had taken long service leave (para 16). The decision rejecting the claim was affirmed on reconsideration on 12 April 2011 resulting in Application 2011/1494 (para 16).
53 In relation to the claim for compensation by way of incapacity payments in the period 11 March 2011 to 11 April 2011, Australia Post rejected that claim on 28 March 2011, and that decision was affirmed on reconsideration on 12 April 2011 resulting in Application 2011/1499.
54 Mrs Kelk returned to work with Australia Post in mid-April 2011 taking up restricted duties. She gave evidence before the Tribunal that she continued to experience difficulties with her voice and saw Dr Matthew Broadhurst, an Ear, Nose and Throat Surgeon, in July 2011. Dr Broadhurst concluded that Mrs Kelk was suffering from muscle tension dysphonia and recommended ongoing speech therapy (para 18).
55 Mrs Kelk gave evidence before the Tribunal that she continued to experience pain in her hands, shoulders and tailbone and found it difficult to stay at work even with restricted duties. Mrs Kelk gave evidence that she spoke to her Rehabilitation Case Manager about further restrictions in the use of her hands but was told that that was not possible. Mrs Kelk gave evidence that she then realised that she could not stay in her employment any longer. Mrs Kelk did not return to Australia Post after 12 October 2011 (para 20). On 14 October 2011, Mrs Kelk made a claim for compensation for “permanent impairment” brought about by her voice injury. That claim was rejected on 11 November 2011 on the footing that the level of her impairment did not reach the statutory minimum of 10% (para 21). That decision was affirmed on reconsideration on 5 December 2011 resulting in Application 2011/5444.
56 At para 29, the Tribunal notes that the case advanced by Australia Post “puts very much in issue the accuracy and reliability of Mrs Kelk’s evidence and the account of events that she has given to the medical practitioners who have reported on her complaints”. The Tribunal says this at para 29:
It was submitted that [Mrs Kelk] had exaggerated, and even fabricated, her evidence, that it was inconsistent, and that it should not be accepted where it was uncorroborated. I have reached the conclusion that there is considerable force to those criticisms. It may well be that Mrs Kelk has persuaded herself of the correctness of her view of events however for the reasons that follow I do not accept that she is at all reliable. And I would prefer not to use the concept of corroboration, a term that rather suggests a legal requirement for independent verification; it is enough to say that my concerns regarding the reliability of Mrs Kelk’s evidence are such that I do not accept her evidence on critical matters except where it is supported by other independent evidence.
[emphasis added]
57 These findings of the Tribunal are also later expressed in emphatic terms.
58 At para 29, the Tribunal also said this about the question of whether there was room for different perceptions of the evidence:
In reaching this conclusion I am conscious of, and make allowance for, the fact that Mrs Kelk suffers from major depressive disorder which may have affected the way in which she gave her evidence. Moreover, and contrary to Mrs Kelk’s written submissions, I do not regard the variance between her evidence of events and what is capable of being objectively demonstrated by contemporaneous documents as explicable on the basis of her “perception” of those events.
59 At para 30, the Tribunal adopts the examples of unreliability in Mrs Kelk’s evidence set out in Australia Post’s written submissions at para 12(a) to (j) of Exhibit 43. The Tribunal then gives “some examples” of unreliability but the reasons make it plain that the Tribunal accepts the force of all of the examples set out in the written submissions.
60 The first example which led the Tribunal to its findings about Mrs Kelk’s evidence begins at para 31 of the Tribunal’s reasons. In that paragraph the Tribunal notes that it was a recurring theme in Mrs Kelk’s evidence that her workplace performance was measured by Australia Post’s reliance upon key performance indicators (“KPIs”). The Tribunal also notes at para 31 that Mrs Kelk had contended that Australia Post’s measurement of her performance by reference to these KPIs oppressed her. One of the KPIs was concerned with the employee’s “schedule adherence”. At para 31, the Tribunal notes Mrs Kelk’s evidence of significant changes which took place within Australia Post in early 2010. The Tribunal notes that Mrs Kelk, in her statement dated 24 October 2011 (Exhibit 7, para 14), gave evidence that these changes had resulted in the intensifying of her already high and stressful workload which put, she said, even more pressure and stress upon her. The Tribunal notes at para 31 that a particular example of that intensity and stress was put by Mrs Kelk on the footing that employees in the Call Centre:
… now only got 21 minutes out of schedule time per day (previously, it was around 75 minutes), which meant that if we got caught on a long call just before we were scheduled to go on a break (which can happen every day, at every break time), then we could not go to the toilet for the rest of the day during our work time, as our toilet breaks were now included into (this 21 minutes) our schedule adherence KPI.
61 Mrs Kelk gave evidence that she had to drink a lot of water due to talking non-stop for long periods of time without a break and with only one to four seconds between calls. Mrs Kelk gave evidence that she had real difficulties in meeting the schedule adherence KPI and was performance managed about it and then formally counselled for not meeting it. She also gave evidence that when she expressed concern (about her need to go to the toilet more often) to Mrs Solomon, her Team Manager, Mrs Solomon said “well stop drinking so much water” and “only go to the toilet during your scheduled break times”. At para 31, the Tribunal notes aspects of the cross-examination of Mrs Kelk about the question of the breaks Mrs Kelk was able to take in the course of a day should Mrs Kelk be “caught on a long call”. Mrs Kelk gave evidence that if caught on a long call she would start her break later which had an effect upon her schedule adherence. The Tribunal notes that Mrs Kelk said this:
There is a new KPI now that we could – we had [to] have 95 per [cent] schedule adherence, meaning that we could only be out of schedule by 21 minutes per day.
62 Mrs Kelk explained that if she had a long call shortly before her scheduled morning tea break, she could nevertheless take the break at the conclusion of the (lengthy) call but in doing so she would then not be able to meet her “schedule adherence for that day”.
63 Having explained the consequence that Mrs Kelk could only be out of the scheduled work time for a certain number of minutes in each working day, Mrs Kelk was asked when the schedule adherence KPI was introduced. At para 32, the Tribunal notes that Mrs Kelk gave evidence that her recollection was that the schedule adherence KPI was introduced in “early 2010” and that she and other staff were pressured to achieve an adherence KPI of 95%. The Tribunal notes at para 32 Mrs Kelk’s evidence that “every day” she and other staff were “pressured to meet 95 per cent”. Mrs Kelk gave evidence that “every day we were pressured”.
64 At para 33, the Tribunal refers to an email dated 8 July 2010 from Mr Muir who was, at that time, Mrs Kelk’s Supervisor. The email sets out the results in schedule adherence for the preceding week. The Tribunal at para 32 quotes an extract from the email addressed to the “Team” under the topic of “Our Team Schedule Adherence Strategy”. The Tribunal notes at para 33 that Mr Muir said this:
I start today with the emphasis clarifying a few important strategies for improving schedule adherence within the Team. The graph below indicates our current Team Schedule adherence which is slightly below the 88% expectation, and slightly further away from my goal of 92%. However we can see that we hit 91% on day one so these are very achievable goals in the short term.
[original emphasis]
65 At para 33, the Tribunal refers to another email from Mr Muir dated 14 July 2010 (Exhibit 9) in which Mr Muir refers to “our initial target of 87%”.
66 At para 34, the Tribunal then says this:
As it happens, Mr Muir disputes Mrs Kelk’s account of the use of the schedule adherence KPI and, for reasons I will return to, I accept his evidence. But it is unnecessary to resort to that evidence to see that Mrs Kelk’s evidence is demonstrated by the contemporaneous documents to be grossly exaggerated. The documents demonstrate that certainly, up to July 2010, 95% schedule adherence was not the requirement; the “expectation” was 88% and the “goal” 92%. Moreover, I find it impossible to see how even frequent emails of this nature could be regarded as “pressure” of the type described by Mrs Kelk. In each of these instances her evidence is plainly exaggerated.
[emphasis added]
67 At para 35, the Tribunal notes that it was a part of Mrs Kelk’s case that being counselled for not meeting KPIs contributed to her psychological state. That assertion is seen in Mrs Kelk’s statements. Mrs Kelk gave evidence that the consequence of a failure to meet schedule adherence was formal counselling. Mrs Kelk gave evidence before the Tribunal that in the month or two before 11 March 2011 she would go to the toilet about seven times during the course of her working day. She said that this behaviour was observed by Mrs Solomon and resulted in her not being able to meet her KPI. Mrs Kelk said that she was counselled about the conduct by Mrs Solomon and told to drink less water and only go to the toilet in scheduled break times. At para 35, the Tribunal notes that the Tribunal member asked Mrs Kelk about the consequences of a failure to meet the schedule adherence KPI. The Tribunal notes Mrs Kelk’s evidence in these terms:
We were formally counselled and we had to sign a document that we agree to improve on it and if it happened again a couple of days later that you didn’t meet your KPI or for the previous two or three days or the next two or three days after … you’ve had your verbal talk with your team manager then you were formally counselled.
68 This exchange then occurred:
Tribunal Member: | So that’s a different – something different from the first counselling? |
Mrs Kelk: | The first – then you sit down with him and he said, “Right, yesterday and the day before you didn’t meet your … KPI. What is the reason for that?” And with … I got stuck on the phone before I went on my break and they said, “Well, then you didn’t control the call properly so what can you do to make sure this doesn’t happen again?” |
Tribunal Member: | But – sorry. Was there counselling and formal counselling? |
Mrs Kelk: | There was verbal counselling. |
Tribunal Member: | Right? |
Mrs Kelk: | Then they gave you two or three days to improve. That means you have to meet your … schedule. If you didn’t then it was formal counselling. |
69 The Tribunal notes at para 36 that Mrs Kelk said in cross-examination that she had been counselled by Mrs Solomon once informally and once formally. The Tribunal then recites exchanges between Mr Harding (Counsel for Australia Post) and Mrs Kelk in relation to that evidence. Mr Harding put the proposition to Mrs Kelk that Mrs Solomon’s approach was one of “coaching” rather than criticism, and an attempt to identify a “behaviour” Mrs Kelk might address in order to meet schedule adherence, rather than formal counselling. The Tribunal observes that the exchange, quoted at para 36 of the reasons:
… demonstrates a frequent occurrence in the course of Mrs Kelk’s evidence, the habit of avoiding answering simple question[s] and of providing or adding non-responsive answers, I infer because she preferred to give an answer she thought supportive of her case rather than one that might damage it.
[emphasis added]
70 At para 37, the Tribunal notes that Mrs Kelk made much in her evidence of being “threatened” if she failed to meet Australia Post’s standards and that her evidence was that she was “constantly threatened” with formal counselling if she failed to meet the prescribed KPIs. At para 37, the Tribunal notes Mrs Kelk’s evidence that Mrs Solomon was the person who was threatening Mrs Kelk in this way and that the threats were made in October, November and December 2010 (although the year is not expressly mentioned). At para 37, the Tribunal notes Mrs Kelk’s evidence that the content of the threat was delivered in this way:
After I got my stats in the mornings, there was always – she [Mrs Solomon] came around the team and said, “Well done,” to those that did certain things right and the ones that didn’t, “You need to improve, all those guys, otherwise it’s formal counselling, performance management.” And that happened every day.
71 Also at para 37, the Tribunal notes Mrs Kelk’s evidence that there were more than three occasions when Mrs Solomon, acting as Mrs Kelk’s Supervisor, told her that if she did not improve her performance, she would be “performance managed out”.
72 At para 38, the Tribunal notes that Mrs Kelk made a written complaint in response to these threats from Mrs Solomon at a time when Mrs Kelk was a delegate for the Trade Union. The Tribunal at para 38 observes that Mrs Kelk was plainly not afraid to voice strong opinions about steps taken by Australia Post with which she did not agree. The Tribunal, at para 38, also observes that although Mrs Kelk asserted that a written complaint had been made about the threats, no record of any contemporaneous complaint by her was produced in evidence. Further, the Tribunal observes at para 38:
No mention was made of these threats in Mrs Kelk’s statement to Dr Bocquee in August 2010 or her email to Dr Hew of 26 July 2010. No mention is made of these threats in the detailed histories taken by Dr Bruce Westmore [in Dr Westmore’s report dated 24 January 2012, Exhibit 20] or Dr Frank Varghese [in Dr Varghese’s report dated 23 February 2012, Exhibit 31].
73 At para 39, the Tribunal reaches this conclusion:
It is inconceivable that Mrs Kelk would not have documented these threats at the time had they been made as she now alleges. It is not necessary to resort to the evidence of Mrs Solomon (who completely denies making any threats) to conclude that this evidence of Mrs Kelk is simply not true. It is, I conclude, a complete concoction.
[emphasis added]
74 At para 40, the Tribunal finds that there are other instances where contemporaneous documents do not bear out Mrs Kelk’s account of events.
75 At para 40, the Tribunal notes Mrs Kelk’s contention that her voice had become weaker by late April or early May 2010 and that she was finding it difficult to swallow and her voice had become hoarse causing pain. The Tribunal notes that despite Mrs Kelk giving evidence of a recollection of seeing Dr Hew to complain about these symptoms at the time, Dr Hew’s clinical notes in evidence (Confidential Exhibit 8) make no reference to Mrs Kelk’s voice problems until 17 July 2010.
76 The Tribunal notes Dr Hew’s entry on 17 July 2010 in these terms:
Feels mucous caught halfway down throat when swallowing. Has been getting bad reflux lately. 2 weeks ago ate smoked salmon and developed epigastric retrosternal chest pains lasting a day with bad reflux.
77 The Tribunal notes that Dr Hew’s entry in his notes for the consultation on 24 July 2010 refers to Mrs Kelk’s complaint of difficulty in swallowing having been present “since beginning of month”.
78 At para 41, the Tribunal reaches this conclusion:
These matters exemplify the reasons I conclude that I am unable to accept Mrs Kelk’s evidence as reliable and accurate. But that conclusion is, in any event, reinforced by my favourable views of the evidence of Mr Muir and Mrs Solomon.
[emphasis added]
79 At para 42, the Tribunal reached this conclusion:
Mr Muir has not worked for Australia Post for almost 2 years prior to giving evidence in the proceedings. His evidence was logical and it accords with the contemporaneous documents. Mention has already been made of the e-mails of July 2010 and the Issue Register in which he recorded his interactions with Mrs Kelk and the other staff he supervised. I see no reason not to accept that document as a reliable record of the substance, even if not the entirety of the detail, of those interactions. The document presents a starkly different picture to that presented in Mrs Kelk’s evidence.
[emphasis added]
80 At para 43, the Tribunal illustrates the differences between Mr Muir’s contemporaneous notes found in the Issue Register (Ex 30) and Mrs Kelk’s evidence and reaches further conclusions, in these terms:
First, it is noticeably absent any reference to the complaints that Mrs Kelk says that she made to Mr Muir about the effect of work on her health, in particular her voice and her hands and arms. These complaints, Mr Muir said, were not made to him at all. But beyond that the Issue Register, and the evidence of Mr Muir, demonstrates that, contrary to Mrs Kelk’s case, Mr Muir was at pains to support and encourage her.
81 The Tribunal then quotes from Mr Muir’s entry in the Issue Register for 15 July 2010. In that entry, Mr Muir records a conversation with Mrs Kelk which he had with her as a consequence of overhearing her talking with another employee about schedule adherence. Mrs Kelk was discussing, with that employee, how she thought schedule adherence was “difficult”. Mr Muir said to Mrs Kelk that the Team’s results were steadily improving and that Mrs Kelk achieved 93% with her schedule adherence for the previous day. Mr Muir said that this was much better than the KPI of 88% and had exceeded 92% which Mr Muir said was his ideal. Mr Muir gave evidence that Mrs Kelk seemed happy with this position.
82 At para 43, the Tribunal observes that Mr Muir’s evidence generally, and the entry quoted at para 43 in particular, “again illustrates the extent of Mrs Kelk’s exaggeration about the pressure to meet schedule adherence KPIs”.
83 At para 44, the Tribunal reaches this conclusion:
Mr Muir’s notes of his final personal dealings with Mrs Kelk demonstrate to me that Mrs Kelk’s complaints of illness are not genuine. The issue concerned Australia Post’s “Hold and Mute Expectation”, that is, the requirement that determined when a customer could be put on hold or the call muted.
[emphasis added]
84 At para 44, the Tribunal recites Mr Muir’s notes on 22 July 2010 of exchanges with Mrs Kelk and a further exchange by telephone on 23 July 2010. These exchanges were concerned with Mrs Kelk telling Mr Muir (and sending an email) that she would “not be adhering to the requirement of not placing a customer on hold only when leaving her desk”. Mr Muir records that Mrs Kelk thought such a requirement was “stupid” and “Managers need to prove that it can be done first”. Mr Muir said that Managers would not be doing so as the requests made of the employees as to the protocol were reasonable. Mr Muir’s note records that Mrs Kelk seemed noticeably upset. Mr Muir’s note records that at 5.12pm he suggested that Mrs Kelk go into the breakout room for five minutes to calm down. Mr Muir’s note also records the conversation he had with Mrs Kelk in the breakout room at 5.23pm that Mrs Kelk would not take any more calls as “she thought the new expectations were stupid and not reasonable”. Mr Muir’s note records that he said the requirements were reasonable and that keeping customers “off hold” would be something that the team would have to work towards. Mr Muir’s note records Mrs Kelk as saying that she would not be doing this and would not be taking another call. Mr Muir’s note records, for 23 July 2010, that Mrs Kelk telephoned to say that “she believes the work load is unreasonable”. Mr Muir’s note also says that Mrs Kelk is “very emotional”. His note then says: “This has led to her being unwell and stressed”. Mr Muir’s note also records that he told Mrs Kelk that since she contended this was a work related matter, she would have to follow the relevant process. Mr Muir’s note records that Mrs Kelk said that she would log a complaint with Comcare about it. At para 44 of the Tribunal’s reasons, the Tribunal member quotes the detail of the notes made by Mr Muir for 22 July 2010 and the content of Mr Muir’s note of his telephone call with Mrs Kelk on 23 July 2010.
85 Having assessed the evidence of Mrs Kelk and Mr Muir and having accepted the content of Mr Muir’s notes in the Issue Register, the Tribunal reached this conclusion at para 44:
The following day Mrs Kelk saw Dr Hew and complained that she had become “even more stressed at work since the unrealistic demands placed by management at the Australia Post Call Centre at the beginning of this year”. Although it is unnecessary to determine what has motivated Mrs Kelk I have the distinct impression that Mrs Kelk was simply unwilling to change the way she undertook her work when Australia Post management implemented change. She was antagonistic and quite resistant to change.
[emphasis added]
86 Apart from these assessments of the evidence of Mrs Kelk and Mr Muir, the Tribunal at para 45 reached conclusions in relation to the “sharp contrast” between Mrs Kelk’s evidence and that of Mrs Solomon regarding their dealings. At para 45, the Tribunal said this:
There is, as well, a sharp contrast between Mrs Kelk’s evidence and that of Mrs Solomon regarding their dealings. Again I accept that of Mrs Solomon which was logical, rational and supported by contemporaneous records. I would add only that in reaching my views on the reliability of Mrs Solomon’s evidence I have not had any regard to whether her evidence was, as Australia Post submitted, “unchallenged”. It was plain enough what Mrs Kelk’s case was; it is not necessary for Mr Grey to slavishly put each component of her evidence to Mrs Solomon.
[emphasis added]
87 At para 46, the Tribunal reaches this conclusion:
It follows that I reject Mrs Kelk’s allegation that she was the object of, “… daily harassment, intimidating bullying and discriminatory behaviour … by Australia Post call centre management and team managers on a daily bases [sic]”.
88 At para 47, the Tribunal reached this conclusion:
Mrs Kelk’s written submissions stress that the issue is one of Mrs Kelk’s “subjective perception”. So much may be accepted. But I am not satisfied that Mrs Kelk’s account is an honest account of her subjective perception of events. For the reasons I have sought to explain I am driven to the conclusion that Mrs Kelk’s account is grossly, and consciously, exaggerated to the point, in some cases, of concoction.
[emphasis added]
89 At para 47, the Tribunal emphasises the gravity of the conclusion by making this further observation:
This is not a conclusion I draw lightly however it seems to me to be inescapable. This is, in my view, a clear case where that conclusion can be reached.
[emphasis added]
90 Having reached that assessment of the evidence of Mrs Kelk, the Tribunal then proceeded to address the content of each of the particular claims and it is now necessary to identify the conclusions the Tribunal reached about each of the four claims.
The Tribunal’s assessment of each of the four claims
Mrs Kelk’s claim relating to a contended psychological condition
91 At para 49, the Tribunal accepted that it is “undoubtedly” the case that Mrs Kelk has some history of “what might loosely be called ‘stress’ at work”. The Tribunal referred to Mrs Kelk’s history of attendances on Dr Hew complaining of stress at work and notes that Dr Hew’s clinical notes (Ex 8) show that in May 2001 Mrs Kelk told him that she was “stressed and tense from work handling complaints etc and also chronic urticaria making her extremely anxious and nervy”. Also at para 49, the Tribunal notes that in March 2002, Dr Hew’s notes refer to Mrs Kelk having “a stressful job and that she ‘bottles stress in at work’” with a further reference in the March 2004 notes to Mrs Kelk’s report of “stress at work – working at call centre taking complaints” and “feeling depressed, angry and anxious”. The Tribunal also notes that in August 2005, Dr Hew’s notes record Mrs Kelk’s further complaint of:
stress from work with supervisor who had been hounding her for petty things. Had meeting with more senior manager. Feeling anxiety, breaking out in hives since then.
92 The Tribunal notes at para 50 that in January 2010, Mrs Kelk complained of depression to Dr Hew which he described as endogenous. At para 50, the Tribunal notes that on 24 July 2010, Mrs Kelk consulted Dr Hew and reported to him the matters described at para 7 of the Tribunal’s reasons (and set out at [43] of these reasons). Dr Hew’s report notes Mrs Kelk’s observation that she had become “even more stressed at work” for the reasons she reported to him and which he recited in his later report.
93 In addition to Dr Hew’s notes and the chronology of consultations with him and reported complaints made to him by Mrs Kelk, the Tribunal evaluated the evidence of Dr Westmore and Dr Varghese.
94 At para 52, the Tribunal notes that as a result of a consultation with Mrs Kelk in January 2012, Dr Westmore considered (at p 8 of his report of 24 January 2012, Exhibit 20), that Mrs Kelk suffered from a major depressive disorder. Dr Westmore further observed at point 3 of his report that “based on her history” Mrs Kelk’s “exposure to a series of chronic stressors in the workplace was directly responsible for her becoming psychiatrically unwell” and that Mrs Kelk’s “employment was therefore a substantial contributing factor in the onset of her Major Depressive Disorder”.
95 At para 52, the Tribunal also notes that in Dr Westmore’s report dated 12 July 2012 (Exhibit 21), he said this at p 2 in responding to the opinion of Dr Varghese reflected in Dr Varghese’s report to be mentioned shortly:
As I wrote in my report, if her account is accepted, that there were quite significant stressors in the workplace, then it would be reasonable, in my view, to conclude that the onset of her Major Depressive Disorder (a diagnosis made independently both by myself and Dr Varghese) arose as a direct result of the workplace stress, rather than from any underlying predisposition to develop such a condition or any earlier depressive illness which may have, in and of itself, affected her capacity to perform in the workplace.
[emphasis added]
96 The Tribunal’s reference to the two extracts from Dr Westmore’s reports of 24 January 2012 and 12 July 2012 emphasise the Tribunal’s view that Dr Westmore’s expression of opinion is based upon, first, Mrs Kelk’s narration of her exposure to a series of stress factors in the workplace and, second, an acceptance, on the facts, of her account about those stress factors.
97 The passage in Dr Westmore’s report of 12 July 2012 quoted by the Tribunal at para 52 of its reasons is, in effect, introduced by these paragraphs also at p 2:
Dr Varghese, like myself, indicated that Mrs Kelk requires psychiatric treatment. In terms of aetiology he emphasised a possible constitutional component to her illness, although he fairly notes that Major Depressive Disorders can also be precipitated by external events. On page 20, in the last paragraph, Dr Varghese wrote “however it is known that psychosocial adversity can precipitate individual episodes …”.
Regarding the specific aetiology, Dr Varghese notes the history given by Mrs Kelk in relation to workplace stress and her allegations of harassment and bullying. He correctly indicated that it will be a matter for the AAT to determine the facts. He does raise an alternative view that she may have become depressed initially and quite independently of workplace stress and that, in turn, lead [sic] to her not being able to cope with workplace stressors.
The principal argument against that view is that she provides, correctly or otherwise, a series of “facts” in relation to the workplace which she said lead [sic] to her becoming depressed. This would be in contrast to the argument offered by Dr Varghese. She said she had loved her job and she found it challenging. Around 2001 however, she started to develop some symptoms of anxiety after call monitoring was introduced. She describes the onset of a range of psychological and physical symptoms, but in early 2010 new management took over and there were significant stressors which seem to have precipitated a further deterioration in her mental state and her capacity to function.
[emphasis added]
98 In the final paragraph on p 2, in the passage quoted at [95] of these reasons and quoted at para 52 of the Tribunal’s reasons, Dr Westmore makes the point that there were, in his view, quite significant stressors in the workplace, if her account of those stressors is accepted by the AAT in determining the facts. What follows from that proposition for Dr Westmore is that if her account is accepted, it would be “reasonable … to conclude” that the “onset” of her “Major Depressive Disorder” arose as a direct result of those workplace stressors.
99 The finding of fact reached by the Tribunal on this question is reflected at para 53 of the Tribunal’s reasons in these terms:
I do not accept Mrs Kelk’s evidence that she was subjected to the stressors in the workplace that Dr Westmore has recorded. Accordingly I am unable to accept Dr Westmore’s opinion, predicated as it is on an acceptance of the history given by Mrs Kelk.
[emphasis added]
100 At para 54, the Tribunal notes that Dr Varghese who saw Mrs Kelk in December 2011 also diagnosed her as exhibiting a state of “major depression”. At para 54, the Tribunal addresses aspects of that part of Dr Varghese’s report (dated 23 February 2012, Ex 31) falling under the section headed “Conclusions”. In particular, the Tribunal notes paras (i), (ii) and (iii) of that section of Dr Varghese’s report. However, it is contextually useful to note what Dr Varghese said in that section which is set out below:
CONCLUSIONS
The documentation clarifies issues with respect to Ms Kelk’s neurological symptoms in her arms and her voice and swallowing problems. There is also information with respect to previous presentations with somatic symptoms and psychiatric presentations preceding 2007.
Overall the new information does not cause me to change the basic thrust of the opinion expressed provisionally other than to note that Ms Kelk’s emotional symptoms first manifested in 2001 as against 2007.
I trust the following is useful to the Tribunal.
(i) The principle clinical issue is that Ms Kelk suffers from Recurrent Major Depression meaning that she has had several episodes of depression since 2001. It is also probable that there has been a Dysthymic Disorder of varying intensity with perhaps periods of remission between the episodes of Major Depression.
(ii) A consistent feature of Ms Kelk’s depressive illness is that the depression has manifested with a variety of somatic symptoms as outlined in the General Practitioner notes and the General Practitioner’s reports.
(iii) Ms Kelk’s neurological-like symptoms in her arms and her voice and swallowing problems do not represent organic disease. Rather they are symptomatic of depressive illness, in other words they represent depressive equivalents. The implication is that as the depression lifts the symptoms should remit.
(iv) If the physical symptoms persist even after Major Depression is in remission, then the symptoms can be considered to represent a somatoform disorder of a conversion type. Please note however that any such putative somatoform disorder does not represent an illness or disease. Rather it is a description of behaviour which could appropriately be called abnormal illness behaviour. The symptoms are something she “does” and “reports” as against something she “has”.
(v) It is generally regarded as unsafe to diagnose a primary somatoform disorder in the presence of significant depression. Hence at the present time I consider that the symptoms are symptomatic of depression.
(vi) The cause of Ms Kelk’s Recurrent Major Depression is multifactorial as described in the provisional formulation. Constitutional factors are of particular importance. I note the family history of alcohol dependence. I also note developmental adversity that would predispose to depression. As discussed in the provisional formulation, episodes of Major Depression can occur for no apparent reason and be a reflection of the natural history of Recurrent Major Depression. However it is known that psychosocial adversity can precipitate individual episodes or prolong episodes and this would be more relevant if there was chronic Dysthymia in addition to episodes of Major Depression.
In Ms Kelk’s case it would seem that the marital situation is a significant issue in her depression even though she did not report this to me. Other issues that may have been of importance at various times include her daughter’s problems at birth and the miscarriage. The extent to which there are any ongoing problems with Ms Kelk’s daughter is not clear.
(vii) As to the influence of the work situation in the genesis or prolongation of Ms Kelk’s depression, this is ultimately an issue of fact that needs to be determined by the AAT. If one accepts Ms Kelk’s account of the issues at work including her allegations of harassment and bullying, being required to work whether typing or in a call centre in conditions that were inappropriate and demanding, then these issues could play a part in the genesis of depression or prolongation of depression within a multifactorial model.
An alternative construct is that as a result of Ms Kelk developing depression she found it more difficult to cope with the normal demands of work and her depressive cognitions lead her to experience the workplace as demanding, and unsupportive and her supervisors as critical and bullying. Under this construct Ms Kelk’s experience of “work stress” is a result of depression as against the cause of her depression. Thus deciding on the direction of causality requires a judgement of fact.
(viii) Allowing that the judgement of the facts of the case by the AAT may cause me to change my opinion, I am inclined to the view that Ms Kelk’s episodes of Major Depression were unrelated to work but that she began to experience work as adverse and stressful as a result of a recurrent depressive illness and intermittent Dysthymia.
[original bold emphasis]
101 Having considered the evidence and reports of Dr Varghese, the Tribunal said this at para 55:
I regard the opinions of Dr Varghese as sound and I accept them. His opinions were informed by a detailed consideration of other source material and his conclusions coincide with the view I have about the incidence of claims stress in Mrs Kelk’s workplace. Moreover, his conclusions that the arm and voice symptoms are symptomatic of depressive illness rather than organic disease accords with the view I take of the medical evidence concerning these conditions.
102 The Tribunal then recognises the criticism implicit in the propositions put by Mr Grey on behalf of Mrs Kelk to Dr Varghese and said this at para 55:
I note the apparent force of the criticisms of Dr Varghese implicit in Mr Grey’s cross-examination [at pp 338 to 342 of the Transcript] however, having re-read the report and the transcript of Dr Varghese’s evidence, I am satisfied that there is no substance in that criticism.
103 At para 55, the Tribunal identifies and accepts the evidence of Dr Varghese in answering the sequence of propositions put to him by Mr Grey (at T, p 342, lns 12-30) in these terms:
Mr Grey: | Yes but make the assumption Dr Varghese that the applicant said that by 2009 and indeed the medical reports, the medical notes of Dr Hew suggest that she had reported problems with her arms in 2008 which began around December 2007 and they became chronic over a period of time bilaterally and in 2009 she was still trying to get to the bottom of that with Dr Hew. Make the assumption that her evidence has been that those problems with her arms meant that she was no longer able to do the housework and other domestic duties and that created problems with her husband because he was not understanding or sympathetic to the needs – to her needs that arose out of the fact that she had these problems. Now, if you accept that history and you put together with all of her other work-related complaints, bearing in mind, that she attributes the hand problems to the work, if you accepted all of that, it makes it far more likely than not, doesn’t it, that whatever problems she was having with her husband were related to the problems that had arisen out of her workplace? |
Dr Varghese: | I don’t – the way I see it, I don’t accept that the problem in her hands are anything but a manifestation of depression. |
Mr Grey: | Well I know that but ---? |
Dr Varghese: | So she’s depressed from about, you know, 2007. Yes, if you’re depressed and you have – and that manifests with physical symptoms that restricts your activity in the household, yes, that’s likely to cause marital problems. |
104 At para 56, the Tribunal reached the following conclusion having assessed the evidence of Dr Westmore and Dr Varghese:
In the result I am not satisfied that Mrs Kelk’s psychological condition was contributed to, to a significant degree, by her employment by Australia Post. Instead I accept, as Dr Varghese opined, that the development of major depression brought about a situation, at least until early 2010, where she began to experience her work as stressful and the work environment as unsupportive. As to the position thereafter, it is enough to say that I would not regard her complaints to Dr Hew in July 2010 as being an accurate portrayal of her condition, or even her perception of her condition, at that time.
[emphasis added]
Mrs Kelk’s claim concerning her hand, arm and shoulder
105 The Tribunal then considered the evidence in relation to Mrs Kelk’s claims concerning her hand, arm and shoulder condition. At para 57, the Tribunal notes Mrs Kelk’s claim that the work she undertook over a number of years, for many hours each working day, involved considerable repetitive keyboard work which was said to be inherently capable of causing “overuse injuries”. The Tribunal notes the criticism, drawn from Mr Grey’s written submissions, that Australia Post was, in substance, seeking to contest the “basic” notion that hours of considerable repetitive keyboard work could give rise to overuse injuries of the kind complained about by Mrs Kelk, notwithstanding that the Tribunal has “routinely accepted” overuse injuries, in the context of claims for compensation under the SRC Act in such circumstances “depending of course on the particular facts applicable to each case” (Mr Grey’s submissions). At para 58, the Tribunal regarded the quoted observation as the relevant “key” to the case being made by Mrs Kelk for compensation in relation to these contended injuries. The Tribunal said this at para 58:
Reference to other cases in broad sweeping criticisms of Australia Post will not assist me to make findings of fact, based on the evidence in this case, about any conditions affecting Mrs Kelk’s hands, arms and shoulders, nor any relationship between her employment and any such condition.
[emphasis added]
106 In January 2012, Mrs Kelk was examined by a specialist physician, Dr David Champion. Dr Champion provided a report dated 7 March 2012 (Ex 19). At para 59, the Tribunal notes that Dr Champion, in that report, observed (at Point 8, p 12 of the report) that Mrs Kelk was suffering from “a chronic neck, head and upper extremity regional pain syndrome (‘overuse injury’) with associated anxiety and depression”. The Tribunal then quotes extensively from Dr Champion’s report and particularly notes paras 2 and 3 on p 9 of the report and the first complete paragraph on p 10 of the report. There is no doubt that the Tribunal has taken Dr Champion’s report into consideration in some considerable detail. It is useful to set out Dr Champion’s diagnosis and assessment of Mrs Kelk’s condition, taking account of some additional aspects of the report. Dr Champion’s views are set out at pp 9 and 10 of his report. In setting out Dr Champion’s views, I propose to break up sections of his quite lengthy paragraphs so as to make the expression of those views more readily readable. Dr Champion’s views are these:
Diagnosis and assessment
Mrs Kelk presented a plausible history and her responses to my examination appeared to be appropriate so far as one could determine. There was no clear evidence for genetic, pathophysiological or psychological vulnerability to the disorders which she now claims have been substantially causally influenced by the nature and conditions of employment with Australia Post.
Perhaps one might comment that her diligence, exemplified by her model performance in the call centre, put her at increased risk of a neck and arm pain disorder. This has been a common observation that I have made over many years examining and researching patients with work-related neck and arm symptoms.
The nature and conditions of employment as a call centre operator, from Mrs Kelk’s perspective and as recorded in my history, represent a potential text book model on how to induce a chronic regional pain syndrome with associated adjustment disorder including anxiety and depression. There were frequent changes of workstation, sustained computer applications without adequate breaks, continual stresses from anxious, concerned, frustrated and at times angry members of the public, closely monitored key performance indicators, unsympathetic employers, apparent failure of management to adhere to guidelines, and added stresses related to her union role, dealing with fellow travellers in an unfavourable work context.
Thus it was no surprise that she felt stressed, and over time the stress took its toll in the form of symptoms of anxiety and depression. These emotional responses added to the risk factors for a biomechanically provoked chronic neck and arm pain disorder (with headache and back pain).
I shall provide neuroimaging evidence in support of the importance in chronic pain disorder of central nervous system integration of neurobiological and of psychological factors. The neurobiological factors include augmented pain processing, as illustrated by the somatosensory testing which I have recorded in my examination. An important feature of that is central sensitisation of nociception, which is the essential neurobiological mechanism underlying the severity, spread and chronicity of the chronic pain. The abnormal sensory and deep hyperalgesic responses extend typically beyond the regions of complaints of pain.
It has been well shown that repetitive muscle use, as in frequent movements and sustained postures, induces central sensitisation of nociception, particularly in vulnerable individuals, through long sustained, initially asymptomatic, slow conducting C-fibre nerve inputs into the dorsal horn of the spinal cord.
In addition, it is common that peripheral nerve hyperexcitability contributes importantly to the generation of chronically sustained and partially irreversible central sensitisation of nociception.
In Mrs Kelk’s case she has median nerve and brachial plexus hyperexcitability, also observed in the course of the examination. It is likely that the unsupported shoulders and arms are the source of stretch and other biomechanical factors in induced hyperexcitability of brachial plexus.
It is difficult to prove this brachial plexus interpretation, just as it is difficult to refute the concept. It is, however, the best explanation for the observed features.
I have seen many hundreds of patients with work-related neck and arm pain disorders and been a co-author of ten publications, and have given a great deal of thought to these interpretations over the years. Unfortunately the emotive and biased (from various viewpoints) views about the RSI problems which peaked in the 1980s impaired rational thought and discouraged research.
On the evidence available to me, Mrs Kelk acquired, because of the nature and conditions of employment with Australia Post, an adjustment disorder with anxiety and depression and a chronic regional pain syndrome experienced particularly in her neck and upper extremities, associated with headache. The combination of hyperexcitable peripheral nerves with the deep hyperalgesic state has led to impairment of motor function and power, which has meant that it has not been feasible for her to sustain computer based work and has caused considerable disability for activities of daily living. There is also the third condition, specifically the voice injury (dysphonia) and I understand she has been assessed as being permanently impaired.
The management of this condition necessarily requires to be multidisciplinary. It is best carried out at a chronic pain service involving pharmacotherapy, physiotherapy counselling, physiotherapy, guided by a specialist in pain medicine, also with rehabilitation input. Involvement of a psychiatrist at least initially is important. Effective implementation and adherence to the principles of chronic pain management, together with the passing of time, will lead to some improvement.
However it is well known that many of the mechanisms that underlie chronic pain disorder with such somatosensory disturbances are irreversible, and it is unlikely that her condition will ever completely resolve. Whether she reaches a point of reasonable comfort, function and psychological wellbeing remains to be seen. She is probably somewhat more resilient than are many people and there is some hope for reasonable improvement. She will remain unfit for her former employment permanently. It is possible that in years to come she will get back effectively to selected light duties part time, but one cannot be absolutely assured of that point. Her best chance will probably come from a settlement of her claim so that she is not continually having to establish that she remains unwell.
[emphasis added]
107 In the section of Dr Champion’s report quoted above, the Tribunal gave emphasis to the paragraphs which are represented by paras 3 to 11 as set out in [106] of these reasons.
108 Having considered Dr Champion’s report, the Tribunal then turned to consider the report of Dr Ronald Hazelton, a consultant rheumatologist. Dr Hazelton examined Mrs Kelk in June 2011 and provided a report dated 6 June 2011, Ex 35. Dr Hazelton’s report is based upon information provided by Mrs Kelk and a folder of information provided by the referring solicitors acting on behalf of Australia Post. That folder was entitled “Documents For Consideration In Preparation Of Report”. Dr Hazelton recites 17 documents (apart from the Guidelines for Expert Witnesses). The documents consisted of such material as Mrs Kelk’s claim form for compensation, medical certificates, reports of Dr Hew, Dr Jobbins, Dr Leon Le Leu and an email, letter and statement by Mrs Kelk (among other material). At p 10 of his report, Dr Hazelton said this (at Point 1):
Mrs Kelk did not report any specific workplace accidents or injuries. Her symptoms came on gradually over a period of time. She is intrinsically unsuited to the very nature of her job. She is coping poorly with having to deal with irate customers and finding the type of work stressful. She has chosen to attribute her symptoms to workplace conditions and practices, such as poor ergonomics, insufficient breaks from her computer, poor management decisions and lack of concern.
[emphasis added]
109 At Point 3 of his report at p 10, Dr Hazelton said this:
Mrs Kelk has no objective upper limb clinical findings and has no recognizable defined rheumatological disorder.
Mrs Kelk has ambiguous pain. Her symptoms fall into an ambiguous category. Her upper limb condition cannot be defined by any clinical, scientific, pathological, laboratory or radiological abnormality.
[emphasis added]
110 Dr Hazelton regarded Mrs Kelk’s claims of pain symptoms as falling into an “ambiguous category” for the reasons he identified. He did not accept that Mrs Kelk was suffering from a recognised rheumatological disorder and thus at Point 4 he did not accept that Mrs Kelk’s employment or her work generally had either contributed, or contributed to a significant degree, to her ambiguous category of pain symptoms. As to the prognosis for Mrs Kelk, Dr Hazelton said this at Point 11, p 12 of his report:
Mrs Kelk is convinced that all her symptoms are attributable to the workplace. She has the mistaken perceptions that she suffers from serious, worsening, disabling “workplace injuries”. Prognosis for successful return to usual duties is guarded.
111 At p 12 of his report, Dr Hazelton said this:
In Summary:
Mrs Kelk is very determined in the pursuit of multiple claims for many miscellaneous subjective symptoms affecting her upper limbs. Her perception of “injury” cannot be validated. There is no definitive rheumatological condition present. There is no pathological basis for her complaints. They represent somatisation and are likely to persist until the litigative process is completed and her perception of the workplace improves, or she finds a different workplace.
I have read the file pertaining to this matter and can think of no other readily ascertainable additional facts which would assist me in reaching a more reliable conclusion.
[emphasis added]
112 At para 60, the Tribunal gives emphasis to the passage noted at [109] of these reasons and para 1 quoted at [111] of these reasons. At para 61, the Tribunal observes that:
… what is apparent from [Dr Hazelton’s] evidence is that there is a complete absence of clinical signs of the complaints made by Mrs Kelk. That does not, of course, mean that her case must fail but it does mean that an accurate history is critical. But it matters not whether I accept Dr Hazelton or not; Mrs Kelk’s case relies upon an acceptance of Dr Champion’s opinion. The difficulty I have in accepting Dr Champion’s opinion is that it is informed by the history provided by Mrs Kelk and, for the reasons I have already explained, I do not accept her as a reliable historian. On the contrary I consider that much of her evidence, and the history provided to medical practitioners, is exaggerated, even concocted.
[emphasis added]
113 At para 62, the Tribunal came to this conclusion:
I am then unable to accept Dr Champion’s opinion as to the nature of Mrs Kelk’s claimed ailments or its cause. It follows that I am not satisfied that Mrs Kelk is suffering from an injury, as defined, to her hands, arms and shoulders and that her August 2010 claim for “work related stress & overuse injury left & right upper arm” was correctly rejected.
Mrs Kelk’s claim of contended incapacity for work in the period 24 July 2010 to 5 October 2010
114 As to Mrs Kelk’s claim for compensation under s 19 of the SRC Act determined in accordance with Div 3 of Pt II of that Act for contended incapacity for work in the period 24 July 2010 to 5 October 2010, due to “hoarse throat associated with supraglottic muscle dysphonia”, the Tribunal accepted that there was no doubt that Mrs Kelk was absent from work during the relevant period. However (at para 64 of the Tribunal’s reasons), the Tribunal was not satisfied that Mrs Kelk was incapacitated in this period as a result of the voice injury (or as a result of “any other compensable injury”), accepted by Australia Post on 9 March 2011 based upon the report of Dr Jobbins. The Tribunal reached that conclusion (at para 64) “by reference to the absence of evidence of a connection between [Mrs Kelk’s] absence from work [in the claim period] and any compensable injury [emphasis added].
115 The Tribunal explains its assessment of the evidence leading to that conclusion in the following way.
116 At para 65, the Tribunal notes Mrs Kelk’s evidence that by late April or early May 2010 her voice had become weaker and hoarse and that she was finding it difficult to swallow. The Tribunal notes that Mrs Kelk gave evidence that she consulted Dr Hew around the time of the onset of the claimed symptoms but observed that “there is no reference in [Dr Hew’s] clinical notes to such a consultation” (para 65). The Tribunal notes that the first reference in Dr Hew’s clinical notes (Ex 8) to “any voice issue” is a reference on 17 July 2010 to Mrs Kelk having “a problem when swallowing” [emphasis added] which was described by Dr Hew on the subsequent consultation with Mrs Kelk to have been present from the beginning of July 2010. Mrs Kelk consulted Dr Hew on 24 July 2010 and Dr Hew issued a medical certificate which the Tribunal notes “makes no reference to any problems with [Mrs Kelk’s] voice” (para 65). On 29 October 2010, Dr Hew responded by a lengthy email (Document T48, Ex 2(1)) to a number of questions asked of him by Australia Post and at Point 3 of that response Dr Hew sets out the history recounted to him by Mrs Kelk of her reasons for consulting Dr Hew on 24 July 2010.
117 In that response, Dr Hew notes Mrs Kelk’s remarks that she had become more stressed at work due to unrealistic demands placed upon her by management at the Call Centre from the beginning of 2010. Mrs Kelk told Dr Hew that she was required to constantly type on her keyboard whilst holding the customer online. Mrs Kelk also said that staff numbers had been reduced and her workload (along with others) had trebled. Apart from these factual matters recounted to him, Dr Hew notes that Mrs Kelk said these factors were causing her to:
1. develop tension headaches in her temporal area, shoulder and neck.
2. pains in both her arms, forearms, wrist, dorsum of hands and fingers from continual typing without appropriate breaks.
3. making her ill tempered, teary and tense.
118 Apart from these matters, Dr Hew also said this at Point 3 of his response (which is cited by the Tribunal at para 65 of the reasons):
Ms Kelk also complained of foods and liquids getting caught in her throat when she swallows. However, a subsequent barium swallow was reported normal. This she attributes to being caused from stress from her work.
[emphasis added]
119 At para 66 the Tribunal notes that consequent upon the consultation on 24 July 2010, Mrs Kelk sent a lengthy email to Dr Hew dated 26 July 2010 setting out detailed information concerning her employment with Australia Post. The Tribunal notes that in Mrs Kelk’s lengthy email (at pp 71 and 72 of Document T33, Ex 2(1) which also includes a short email of 26 July 2010 in response from Dr Hew and an email from Mrs Kelk dated 12 August 2010) “no mention is made in that document to any complaint regarding her voice”. Further, the Tribunal notes that reference is made by Mrs Kelk only to “difficulty swallowing” when listing six particular symptoms. Also at para 66, the Tribunal notes that in connection with Mrs Kelk’s attendance upon Dr Alison Bocquee, a clinical psychologist, Mrs Kelk signed a two page statement (Document T32, Ex 2(1) dated 12 August 2010) setting out workplace events and the symptoms Mrs Kelk said she was then experiencing. At para 2.1 of that statement, Mrs Kelk makes reference to her email to Dr Hew dated 26 July 2010 (although Mrs Kelk’s statement mistakenly dates that email as 12 August 2010). At para 66, the Tribunal notes that in her statement for the purposes of the consultation with Dr Bocquee, “no reference was made to any difficulties with her voice”.
120 On 4 December 2010, Dr Hew provided Mrs Kelk with a medical certificate (Document T23, Ex 2(2)) in which he certified that he had diagnosed her as “suffering from dysphonia, hoarseness of voice, difficulty swallowing and dryness of throat”. Dr Hew also records the “worker’s stated cause of injury [as] constant use of voice working at call centre with inadequate vocal rest breaks”. At para 67, the Tribunal notes that Dr Hew’s certificate of 4 December 2010 contains no opinion as to the time of the onset of the diagnosed condition. At para 68, the Tribunal notes Mrs Kelk’s evidence (at T, p 41, lns 16-18) that she made complaints to Mr Muir about a condition in relation to her voice “a number of times” before she went on leave in July 2010. At para 68, the Tribunal also notes that Mr Muir denied “any such conversations” and thus there was a clear conflict in the two versions. The Tribunal also notes, at para 68, Mr Muir’s evidence that he did not notice that Mrs Kelk’s voice was, as she contended, raspy and hoarse in June and July 2010 despite Mr Muir being in a position to hear Mrs Kelk speaking on a regular basis when engaging in conversations monitored by him and when speaking with Mrs Kelk directly himself (see T, p 300, lns 37-38; lns 40-46; T, p 301, lns 1-42).
121 At para 68, the Tribunal also notes Mr Muir’s evidence that had there been conversations with Mrs Kelk in which she had made complaints to him about her voice condition, Mr Muir would have made a note of such a complaint in the Issue Register.
122 On this issue of fact, the Tribunal said this at para 68:
As I have said, I accept [Mr Muir’s] evidence and do not accept that of Mrs Kelk.
123 And at para 69:
In the result, there is no evidence, which I accept, that demonstrates that Mrs Kelk was suffering from any difficulties with her voice in the period between July and October 2010. It follows that, in my view, the decision to reject her claim was correct and ought be affirmed.
[emphasis added]
Mrs Kelk’s claim of contended incapacity for work in the period 11 March 2011 to 11 April 2011
124 As to Mrs Kelk’s incapacity claim for the period March 2011 to April 2011, the Tribunal made these findings.
125 At para 71, the Tribunal notes Mrs Kelk’s evidence that in the period from her return to work in October 2010 she experienced vocal difficulties with the result that she was placed on restricted duties by Australia Post on the basis of the certificate issued by Dr Hew on 4 December 2010 (Document T23, Ex 2(2)) for the period from 4 December 2010 to 4 March 2011 on the footing that in Dr Hew’s view Mrs Kelk was “fit for suitable duties (restricted return to work)” for the nominated period. In his certificate of 4 December 2010, Dr Hew specified “other considerations” applicable to Mrs Kelk’s “return to work plan” and those conditions were “5-10 minute vocal rest breaks every hour at work”.
126 At para 72, the Tribunal notes aspects of Mrs Kelk’s evidence drawn from her statement of 26 May 2011 (Ex 4) in relation to the period leading up to and after February 2011. At para 11 of her statement, Mrs Kelk said that the number of public holidays in December 2010 and the three weeks of recreation leave she took in January 2011 helped her to continue working with the work restrictions in place. However, by mid-February 2011, Mrs Kelk said that she was becoming increasingly tired and sleepy as her vocal injury symptoms kept her awake at night.
127 Mrs Kelk gave evidence by para 11 of her statement that the swallowing problem, the constant sore throat and the lack of sleep during the night were causing her to become excessively tired during her working hours with the result that she began to fall asleep at work, at her desk, in the kitchen and when attending the toilet. Mrs Kelk also said, at para 12 of her statement, that the tiredness caused by her vocal injury symptoms “got so bad, that I had difficulty meeting Australia Post’s very strict new adherence KPI”. Mrs Kelk said, at para 12 of her statement, that she kept “logging on” late. She said that she was late in returning from completing outbound duties and was returning late from lunch breaks as she was “falling asleep at any opportunity, even if it was for just 1 minute” (para 12). At para 15 of her statement, Mrs Kelk said that as she was not able to improve her adherence statistics, and was “repeatedly late back due to excessive tiredness caused by her work related vocal injury symptoms” (and she contended that she was not allowed to make up the missed times at the end of her shift), she was formally counselled by her supervisor, Ms Solomon, on 10 March 2011. Mrs Kelk also said that she repeated to Ms Solomon her health reasons for being late occasionally. Mrs Kelk gave evidence that Ms Solomon told her that despite Mrs Kelk’s voice and sleep problems, she was nevertheless required to work to the expected adherence KPI “otherwise further steps [would] be taken such as warning counselling” (para 15).
128 Mrs Kelk gave evidence that on 9 March 2011 she received notification of Australia Post’s acceptance of liability for compensation for her voice condition (on the footing of the injury having occurred on 29 November 2010). On 11 March 2011, Mrs Kelk again saw Dr Hew. On 11 March 2011, Dr Hew provided Mrs Kelk with a workers’ compensation medical certificate certifying that she was not able to work at all from 11 March 2011 to 11 April 2011 as she was suffering from “supraglottic muscle dystonia [dysphonia] and throat pain” (Document T35, Ex 2(2)).
129 At para 72, the Tribunal notes that aspects of Mrs Kelk’s statement of 26 May 2011 address interactions she says she had with Ms Solomon about her various difficulties.
130 As to the contest between the version of events given by Mrs Kelk, and the account given by Mrs Solomon of interactions with each other, the Tribunal made this finding at para 73:
Much of Mrs Kelk’s account is disputed by Ms Solomon and, as I have already observed, I prefer her account of events. In particular I accept Ms Solomon’s evidence that in February 2011, when Mrs Kelk was on restricted duties, Ms Solomon often observed her chatting to other staff. That observation, and Ms Solomon’s interactions with Mrs Kelk in general, is quite inconsistent with the notion that on 11 March 2011 Mrs Kelk was incapacitated for work as a consequence, directly or indirectly, of her vocal injury. Ms Solomon did observe Mrs Kelk appearing to be asleep at work on one occasion during the course of a break but otherwise did not observe the tiredness of which Mrs Kelk now complains.
131 As to the assessment of the medical evidence, the Tribunal notes that Dr Donald Jobbins made an assessment of Mrs Kelk’s condition on 9 February 2011 and concluded in his report dated 17 February 2011 (at p 6 of the report, at p 72 of Document T32, Ex 2(2)) that Mrs Kelk was not then capable of undertaking her pre-injury duties on a full time basis and that her “return-to-work schedule will be determined by the speech therapist she will see, who should have a special interest in voice disorders”.
132 On 29 March 2011, Mrs Kelk saw Mrs Lesley Henderson, a speech therapist. In her report dated 29 March 2011, Mrs Henderson said this (at p 94 of Document T45, Ex 2(2)):
I saw this lady today for assessment of her voice and swallowing problems. She gave a history of working in a call centre for 11 years where she has heavy demands on her voice. There has been a gradual deterioration in her voice over that time, but more recently, she has experienced increased difficulty maintaining her voice over the working day and she now has difficulty swallowing. She has a sensation of food sticking in her throat. She finds that the difficulty swallowing disturbs her sleep and she is so tired that she cannot work. She informs me that she had a modified barium swallow test which did not show any abnormalities. She has been reviewed by an ENT – Dr Don Jobbins who has diagnosed muscle tension dysphonia.
On assessment, she was using a weak, breathy, pressed voice with poor breathing patterns and poor posture with marked neck and jaw tension. She had reduced phonation time and because of the back focus of her voice limited projection.
Therapy was commenced concentrating on better vocal hygiene, postural correction, improving breath control and releasing the laryngeal constriction to produce a more forward placement of her voice. She is going to practise her exercises and I will see her for on-going therapy to continue with the rehabilitation program.
[emphasis added]
133 Mrs Henderson’s report was copied by her to Ms H van Mourik, Rehabilitation Consultant People and Community – Postal Services.
134 At para 74 of the reasons, the Tribunal observes that Mrs Henderson’s report “does not suggest that Mrs Kelk was then incapacitated for work”. Document T46, Ex 2(2) is a document called “Initial Provider Management Plan” (the “Plan Document”) for the provision of Speech Pathology Services. The Plan Document is signed by Mrs Henderson and dated 30 March 2011, the day after the consultation with Mrs Kelk. The document is also signed with the “Insurer’s Approval” and stamped “Claims Manager Compensation and Rehabilitation Branch Australia Post”. The Plan Document notes the initial consultation with Mrs Kelk on 29 March 2011 and notes that the plan will require eight consultations with Mrs Henderson ending in June 2011. Part D of the Plan Document notes “poor vocal ability” under the heading in the document “Functional restrictions limiting RTW [Return to Work]”. The Plan Document notes that at the date of the initial assessment Mrs Kelk was “not working” and the “anticipated outcome (at end of current plan)” was a resumption by Mrs Kelk of “normal duties”.
135 On 25 February 2011, Mrs Kelk was seen by Dr Leon Le Leu, an Occupational Physician. Dr Le Leu provided a report arising out of his assessment of Mrs Kelk’s condition, dated 2 March 2011 (Ex 22). At pp 4-6 of his report, Dr Le Leu records the “current status” of the claims or complaints of symptoms reported to him by Mrs Kelk at the examination. These complaints of symptoms are described by Dr Le Leu by reference to Mrs Kelk’s neck and shoulders, right arm, left arm, left hand and by reference to aspects of her depression and anxiety, and her voice.
136 At para 75, the Tribunal observes that the following complaints made by Mrs Kelk and noted by Dr Le Leu that “might be thought to bear on the issue of Mrs Kelk’s claimed incapacity” were these:
Depression:
• …
• Sleep disorder: either insomnia or excessive sleepiness: she is not sleeping well because she wakes up with right hand pain.
• Fatigue: tiredness out of proportion to the amount of energy expended: she does get tired at about 2pm but she cannot sleep then.
• …
Anxiety:
• She gets panic attacks which occur at night. At such times she feels that she is upset about her little girl who has asthma but also about work. She says, at work, they listen to your every call; they criticise the way you breathe; they criticise the look on your face.
• …
Voice:
• Usually by Friday afternoon she is squeaking. Dr Hew has written to Australia Post asking for “ten minutes of non-work time per hour”. In that period she has some paperwork which she transcribes into the computer. She enters one lot of data and then gets a 7 break for her right hand.
She believes if she continued to complain about her right hand the employer would send her on permanent leave without pay and she cannot afford that.
137 At para 76, the Tribunal notes that on 4 December 2010, Dr Hew had certified Mrs Kelk to be fit for suitable duties subject to the specification by him of five to 10 minute vocal rest breaks every hour at work for the period from 4 December 2010 to 4 March 2011. However, on 11 March 2011, Dr Hew formed the opinion that Mrs Kelk was not able to work at all from 11 March 2011 until 11 April 2011 (Workers’ Compensation Medical Certificate dated 11 March 2011, Document T35, Ex 2(2)). At para 76, the Tribunal notes that on 24 March 2011, Dr Hew prepared a report or an explanatory letter addressing a number of matters in which he explained aspects of Mrs Kelk’s complaints in the course of the consultation on 11 March 2011 and the factors influencing his opinion that Mrs Kelk was unable to work at all until 11 April 2011. The Tribunal, at para 76, gave emphasis to these aspects of Dr Hew’s report (Document T43, Ex 2(2) at p 90):
Ms Kelk attended on the 11th of March 2011 complaining of disrupted sleep at night from her dry sore throat causing her to be excessively tired the following day making it difficult to function normally. Her sleep problem from her sore throat had been present for several months leading up to Dr Jobbins’s assessment and Australia Post’s eventual acceptance of her condition being work related.
Ms Kelk returned to work without restriction temporarily in October 2010 and later on restricted duties between the 04/12/10 to 04/03/11 despite still suffering from above described symptoms of supraglottic muscle dystonia [dysphonia] and throat pain because she was not in a financial position to completely stop working. She requested that she be allowed to return to work after [Australia Post’s Claims Manager, Ms Anne Smith had] rejected her claim for work related injuries regarding her overuse injury to left and right upper limbs, work related stress and stress related headaches. Conditions which she still suffers from and which I am led to believe is currently under appeal.
As a consequence of Ms Kelk’s continuing sore throat resulting in disturbed sleep and day time tiredness with difficulty functioning, her certificate has been changed to incapacitated for work.
[emphasis added]
138 Having reviewed these various reports, the Tribunal reached these conclusions about the medical evidence reflected at paras 77 and 78:
77. Even if Mrs Kelk was experiencing sleep difficulties at the time, I am not satisfied that her account to Dr Hew of the cause of those difficulties is able to be relied upon. Beyond my general reservations about Mrs Kelk’s reliability, the account she gave to Dr Hew is quite inconsistent with the account recorded by Dr Le Leu some two weeks earlier. On that account, the sleep difficulties are at best attributable to either or both the psychological condition or the problem with her right hand. Neither is a condition for which Australia Post is liable to pay compensation. But in any event it seems an extraordinary proposition that sleep difficulties, even accepting Mrs Kelk’s evidence at face value, could render her incapacitated for work. In that regard I note the opinion of Dr Broadhurst that a dry throat may cause difficulty in sleep but that he,
[did] not feel that muscle tension dysphonia alone … would create a dry enough throat to cause a severe sleep disturbance as simple hydration and throat lozengers should be adequate to help.
Ultimately I need not decide whether that is right because there is simply no reliable evidence that Mrs Kelk was incapacitated for work in the March to April 2011 period as a result of her voice condition.
78. I would then affirm the decision to reject Mrs Kelk’s claim for compensation for incapacity over this period.
[emphasis added]
139 The Tribunal’s reference to the quoted opinion of Dr Broadhurst comes from Dr Broadhurst’s letter or report dated 16 April 2012 (Ex 10). In that document, Dr Broadhurst expressed views about audibility, intelligibility and functional efficiency. As to those matters, Dr Broadhurst said this:
Audibility
Mrs Kelk is unable to speak with an appropriately audible voice in her work environment. This makes communication extremely difficult and at times not possible. In addition she uses significantly more effort in speech because of the muscle tension dysphonia which leads to rapid vocal fatigue and worsening of her dysphonia. At times, she has no audible voice.
Intelligibility
Due to the very poor volume in her speech, she does not produce adequate vocal fold vibration and entrainment of the mucosal waves. [This] results in a very breathy and poorly projected voice quality which is extremely difficult to understand. Particularly in settings of moderate ambient noise, her words would not be clearly understood.
Functional Efficiency
Due to her limited mucosal wave and limited subglottal pressure she does not possess adequate laryngeal biomechanics to produce efficient speech.
… I would expect that she would experience a dry sore throat.
A dry sore throat, if severe enough may cause difficult[y] in sleep. I do not feel that muscle tension dysphonia alone however, would create a dry enough throat to cause a severe sleep disturbance as simple hydration and throat lozengers should be adequate to help.
Mrs Kelk’s claim for compensation for permanent impairment
140 As to Mrs Kelk’s claim for permanent impairment, the Tribunal undertook the following analysis and reached the following conclusions.
141 It will be recalled, as earlier mentioned, that on 14 October 2011, Mrs Kelk made a claim for compensation for permanent impairment occasioned by her voice condition of supraglottic muscle tension dysphonia. That document was supported by a declaration signed by Mrs Kelk on 17 October 2011 as to the accuracy of the information contained in the claim form. At p 25 of Document T13, Ex 2(5) (and p 36 of Document T14, Ex 2(5)), Mrs Kelk said that she was:
Unable to talk much to family without experiencing pain, constant sore throat, broken sleep most nights due to sore throat and difficulty swallowing. Experiencing panic attacks when having to talk to strangers, as afraid of not being able to talk properly”.
142 Sections of the form completed by the treating practitioner, Dr Matthew Broadhurst, contain these observations:
Treating practitioner’s assessment
Significant dysphonia does not allow for normal prolonged conversation creating significant isolation.
…
Additional comments
Despite adequate speech therapy and modification of voice duties, this patient remains unable to perform her phone duties. There are some voices that simply cannot tolerate that work load for prolonged periods.
143 Mrs Kelk’s claim was rejected by letter on 11 November 2011 on the basis that the decision-maker did not consider that “on the evidence currently available … [Mrs Kelk] would meet the criteria of the 10% level required for any of audibility, intelligibility and functional efficiency. That decision was affirmed on reconsideration on 5 December 2011 and was the subject of Application 2011/5444 before the Tribunal.
144 At para 79, the Tribunal notes Mrs Kelk’s contention that she has permanent impairment as a consequence of her voice injury and in support of that proposition she relies upon the opinion of Dr Broadhurst who takes the view that Mrs Kelk suffers a permanent impairment of 15%. Australia Post contended before the Tribunal that Mrs Kelk did not continue to suffer from any organic condition attributable to her employment although, should she suffer from an identifiable organic condition so attributable, the degree of her permanent impairment ought be assessed at 0% and in taking that position, Australia Post relied upon the evidence of Dr Jobbins and also the observations and opinion of Dr Varghese.
145 As to Dr Broadhurst on this question, the Tribunal notes at para 80 that Dr Broadhurst first saw Mrs Kelk on 17 May 2011 at which time he took a “careful patient history”. That examination resulted in Dr Broadhurst’s report dated 11 July 2011 (Document T8, Ex 2(5), pp 14 and 15). In his report, Dr Broadhurst notes that Mrs Kelk had been diagnosed with muscle tension dysphonia and that she had been having sessions with Mrs Henderson “but there was very little progress”. Dr Broadhurst observed:
The patient appeared to have limited motivation to improve, did not seem to grasp the education and instruction and would not comply with some tasks such as adequate hydration.
On a site visit, Mrs Henderson felt there was not a high degree of vocal load and it seemed disproportionate to the level of dysphonia.
146 In his report of 11 July 2011, Dr Broadhurst also said this:
Exam showed limited breath support but clear, [albeit very] quiet voice. Stroboscopy showed a normal vocal cord closure pattern but some supraglottic constriction consistent with muscle tension dysphonia. Her vocal cord edges were normal and her glottal closure complete with good mucosal waves. There were moderate reflux findings.
At that point I felt that she needed ongoing speech therapy to manage her vocal dysfunction but also heavy reflux treatment. I commenced the reflux treatment today and will review her in two months.
I anticipate a very good recovery should she follow with due diligence the treatment recommended by Mrs Henderson.
[emphasis added]
147 At para 80, the Tribunal also notes the observation of Dr Broadhurst in his subsequent report dated 12 July 2011 (Document T10, Ex 2(5)) in which he said this:
I reviewed this patient today. She continues to feel she has [not] reached her pre-claim level of voice function despite speech therapy and reflux treatment. The main concerns at work still seem to be loud ambient noise around the call centre employee, vocal fatigue and hoarseness with prolonged periods of voice use.
Exam showed a quiet spoken female with no hoarseness. Stroboscopy showed no vocal cord lesions and minimal reflux changes. The vocal cords closed adequately and there was appropriate mucosal wave activity. There was some supraglottic constriction.
[emphasis added]
148 In his report of 12 July 2011, Dr Broadhurst said that Mrs Kelk would benefit from a further speech therapy review by Ms Belinda Harvey and that Mrs Henderson agreed with this proposal.
149 At para 81, the Tribunal observes that Dr Broadhurst’s report of 16 April 2012 (Ex 10) raised for the first time an issue which, in the Tribunal’s observation, assumed considerable importance at the hearing. The issue was whether the amplitude of Mrs Kelk’s mucosal wave was normal or not. As earlier noted, Dr Broadhurst in his report dated 11 July 2011 arising out of an examination and assessment conducted on 17 May 2011 had observed that Mrs Kelk exhibited complete glottal closure with “good mucosal waves” and in his report of 12 July 2011 arising out of his examination of Mrs Kelk that day, observed that “there was appropriate mucosal wave activity”. The Tribunal also notes at para 81, as confirmed in Dr Broadhurst’s reports, that he had examined Mrs Kelk using stroboscopy “which he said enabled him to discern reduced amplitude in the mucosal wave”. At para 81, the Tribunal went on:
That, he concluded, was the consequence of reduced supraficial lamina propria which had led to Mrs Kelk’s hoarseness. This, in Dr Broadhurst’s opinion, demonstrated an organic voice problem.
150 The Tribunal then notes Dr Broadhurst’s remarks in relation to audibility, intelligibility and functional efficiency quoted at [139] of these reasons. These three topics are the matters to be addressed in applying Table 7.4 of the Comcare Guide. In the letter of instruction to Dr Broadhurst from the solicitors acting for Mrs Kelk, the categories and criteria prescribed by the Guide are set out. In Dr Broadhurst’s report of 16 April 2012, he explains that his assessment of the “whole person impairment” is derived from following the guidelines in the Comcare publication and his assessment of 15% impairment derives from his assessment of Mrs Kelk’s functional capacity with respect to the three designated columns. He observed:
I feel her voice function and speech at work are such that there is rapid vocal fatigue leading to very low speaking volume, therefore reduced intelligibility and [reduced] functional efficiency.
[emphasis added]
151 Dr Broadhurst said this of Mrs Kelk’s whole person impairment (Ex 10):
My explanation of the whole person impairment is derived from following the guidelines in the Comcare Guide publication. My assessment of 15% impairment comes from estimating her function with respect to the three designated columns and selecting the highest rated column, as per the guidelines on pages 69-70 and using table 7.4.
152 At para 82 of the reasons, having earlier noted Dr Broadhurst’s comments on the three topics and his percentage impairment assessment, the Tribunal turned to an examination of a further report provided by Dr Jobbins dated 3 August 2011 (Ex 32). In that report, Dr Jobbins assessed Mrs Kelk as suffering from “hoarse voice, dysphonia”. At para 4.2(b) of the report, Dr Jobbins says this:
On initial examination Mrs Kelk showed normal laryngeal function in the middle and low frequencies, with some degree of supraglottic muscle [dysphonia] in high frequencies. The diagnosis of hoarse voice, dysphonia was made at that time.
She has subsequently had a Barium Swallow which showed presumed gastro-oesophageal reflux. She has also undertaken speech therapy by a highly trained and reputable speech therapist, Mrs Lesley Henderson.
Mrs Henderson has been unable to alter this client’s speech patterns. Ms Kelk would appear to be either unable or unwilling to make this alteration.
This does not occur normally in organic disease. On further examination by Dr Matthew Broadhurst, he stated that there was still some mild degree of supraglottic muscle [dysphonia] (this was after she had had six sessions of speech therapy), but her vocal folds were essentially normal.
The speech therapy treatment should have resulted in a return of her voice to normal. On the balance of probabilities one must accept that there is a significant psychological element to her husky voice as she now has had adequate speech pathology treatment and yet there has been no significant improvement.
[emphasis added]
153 Dr Jobbins also made these observations at p 4 of his report:
Ms Kelk appears to suffer from non-organic dysphonia.
…
In my opinion, development of future reported hoarse voice problems will depend entirely upon the management of her psychological problems.
…
… the character of her voice exhibited by Ms Kelk is out of all proportion to the appearance and function of her normal larynx.
[emphasis added]
154 On 24 April 2012, Dr Jobbins conducted a “clinical and flexible nasopharyngoscopic examination” of Mrs Kelk. On 5 June 2012, Dr Jobbins provided a report arising out of that examination (Ex 33). In that report, Dr Jobbins notes Mrs Kelk’s observation that “her voice is not as hoarse as it had been in the past” although “when she talks she can speak for no longer than three or four minutes and has been like this since July of 2010”. Mrs Kelk told Dr Jobbins that her voice was slightly better than it had been in previous months. Dr Jobbins described Mrs Kelk as suffering from a “minor degree of supraglottic muscle dysphonia” (para 4.2(a)) although there is “a significant element of non-organic overlay to her symptoms” (para 4.2(a)). Dr Jobbins also observed that supraglottic muscle dysphonia occurs in “voice users such as call centre operators, as is common”. Dr Jobbins also said this (at 4.3(b)):
The factors that have contributed to this condition are mostly non-organic. Supraglottic muscle dysphonia is found in employees with high amounts of voice use in their jobs, such as call centre operatives. In Mrs Kelk’s case, the condition is mild and the level of her reported symptomatology is not consistent with the mild nature of her condition.
[emphasis added]
155 At para 4.3(c), Dr Jobbins said this:
I do accept that [Mrs Kelk] does have a minor degree of supraglottic muscle dysphonia which has been resistant to competent speech pathology sessions. She does, I believe, have a significant functional overlay to this.
I would proportion the organic segment of her illness to be 10% and the non-organic at 90%.
[emphasis added]
156 Dr Jobbins considered the complaints of voice fatigue, pain in Mrs Kelk’s throat on talking, and dryness of her throat and difficulty in swallowing as non-organic symptoms. Dr Jobbins observes that these symptoms have persisted despite Mrs Kelk no longer working in a Call Centre environment.
157 At para 83, the Tribunal addresses elements of Dr Jobbins’s report of 5 June 2012 (Ex 33).
158 On this question of the amplitude of Mrs Kelk’s mucosal wave, the Tribunal notes that Dr Jobbins was able to observe a video-recording of Dr Hazelton’s stroboscopy. Dr Jobbins gave this evidence before the Tribunal (T, p 363, lns 33-35), :
Mr Harding: | Okay. Now, what observations did you make about the video of Mrs Kelk’s larynx? |
Dr Jobbins: | She has a very, very minor reduction in her mucosal wave which is not enough to produce pathological symptoms. |
159 In evidence, Dr Jobbins explained that the advantage of using video stroboscopy is that the clinician can look at the larynx of the patient in slow motion with the result that the clinician can actually see the wave on the inner aspect of the patient’s vocal cords. Dr Jobbins explained the matter in this way (T, p 364, lns 2-6):
Now, if the vocal cords are a V and they’re like two rulers sitting together with the apex of the V at the front of your throat, then as you speak, the inner half of the vocal cord, because of the air coming up from underneath, produces a beautiful symmetrical wave-like motion which comes from the anterior aspect of the larynx to the posterior aspect.
160 This wave-like motion is the mucosal wave and the amplitude of the wave is the “size” and the “volume” of the wave (T, p 364, lns 12-13; ln 20). Dr Jobbins said that he did not agree with Dr Broadhurst’s assessment that the amplitude of Mrs Kelk’s mucosal wave was about half that of the normal person. Dr Jobbins gave evidence that he disagreed because he had looked at the videos and although the clinician cannot measure the amplitude of the wave, nevertheless a clinical judgement can be made about it. Dr Jobbins put it this way (T, p 364, lns 37-40):
It’s a subjective assessment, because if you look at hundreds of videos, after a while you can get to assess how – what the reduction is going to be, but you can still – it’s only a clinical judgment assessment.
161 Dr Jobbins further observed that the changes in the video stroboscopy concerning Mrs Kelk were not enough to produce a significant alteration in her voice (T, p 365, lns 1-3).
162 At para 85, the Tribunal addresses a criticism made in submissions on behalf of Mrs Kelk as to the manner in which Dr Jobbins reached the conclusions reflected in his report of 5 June 2012. The criticism made of Dr Jobbins was that during the course of the hearing before the Tribunal it became apparent that his view had been “significantly influenced” by documentation given to him by Australia Post and by conversations he had had with Mrs Henderson. In addition, there was said to be “another undocumented conversation with an unidentified Australia Post manager”. Other criticisms were also made as to the foundation upon which Dr Jobbins had reached his views.
163 As to these criticisms, the Tribunal reached this conclusion (at para 86):
I do not accept that that criticism is warranted. First, the conversation with the unnamed Australia Post manager could not have influenced the opinions expressed in his report of 5 June 2012; that conversation, which took place in the presence of Australia Post’s legal representatives, occurred two weeks [T, p 371, lns 45-46] prior to Dr Jobbins giving evidence [which occurred on 25 October 2012]. And Dr Jobbins explained the significance of the additional documentary material in the addendum [at p 7 of the report of 5 June 2012] to his report in this way,
On 21 May 2012, I was provided with further documentation regarding Mrs Kelk’s case. These documents were produced under summons.
This is the first time I had seen a significant number of the documents, as these were not available in the original file material.
I note correspondence from Mrs Lesley Henderson, Speech Pathologist, regarding Ms Kelk’s review by Dr Matthew Broadhurst. I note in Dr Broadhurst’s letter of 12 July, 2011, paragraph two, he stated that examination showed a quiet-spoken female with no hoarseness. Stroboscopy showed no vocal cord lesions and minimal reflux changes. The vocal cords closed adequately and there was appropriate mucosal wave activity. There was some supraglottic constriction.
I agree entirely with these findings. The repeated findings of a normal larynx with a mild degree of supraglottic muscle constriction have been noted on multiple occasions. This confirms Ms Kelk’s symptoms of recurrent hoarseness and pain are out of all proportion to the medical examination findings i.e. appearance of her larynx.
I note in the email from Lesley Henderson to Dr Matthew Broadhurst, dated 16 May 2011, that she found “Andrea quite difficult to manage”. She stated that she had to go through her GP who believed that Andrea had been hard-done-by by Australia Post and she found Andrea reluctant to work or even to change her voice patterns. She stated that in her opinion Ms Kelk’s workload was not as heavy as many that she had seen in call centres and the conditions were quite good there at Australia Post. It should be noted that Lesley Henderson had visited her work site.
I consider Mrs Henderson’s observations on this client to be consistent with my own and her recommendation re treatment were extremely relevant and valid.
164 Leaving aside Mrs Henderson’s observations about Mrs Kelk’s workload as compared with other Call Centres and Mrs Henderson’s views about the conditions at Australia Post, Dr Jobbins, on the clinical questions and, for that matter, the behavioural disposition of Mrs Kelk, seemed to take the view that Mrs Henderson’s observations concerning Mrs Kelk were consistent with his own views, and Mrs Henderson’s recommendations about treatment for Mrs Kelk were regarded by Dr Jobbins as “extremely relevant and valuable”.
165 The fundamental matter emerging from these views is that reflected in this exchange between Dr Jobbins and Mr Grey at T, p 373, lns 15-47; T, p 374, lns 7-8:
Q: But my question was the significance you place on the fact, whenever you treated it or became convinced that it was a fact, that she had not reported hoarseness of voice to her managers, how significant is that fact, if it be a fact, in your conclusion?
A: Well, it would have been of no significance if I had been able to demonstrate some organic disease, but once I had looked at her larynx and realised that it was essentially normal, then I questioned the accuracy of her history.
Q: … Well, when you say it’s essentially normal, I understand you to say there is a 10 per cent, you thought, contribution made by organic problems; is that right?
A: That’s correct.
…
Q: You are saying that there is a small proportion of organic problem?
A: Exactly.
Q: But mostly non-organic?
A: Exactly.
Q: … Do you follow what I am asking?
A: I don’t actually, but I think I can understand where you’re going. She had some supraglottic muscle dysphonia, muscle tension, and that in some people can produce a mild degree of a husky voice. Now, if you have that condition and you had adequate speech therapy, that will resolve and your voice will return to normal, which is what we had hoped would happen with this lady, and that’s why I said there was a small organic portion. However, she then had adequate treatment by the speech therapist and the speech therapist actually told me that she was resistant to treatment and could not improve her voice. So she then sought another speech therapist called Belinda Harvey, who’s the other speech therapist who specialises in voice, and she was also unable to improve her voice.
Q: … Is it your view that the non-organic component could have then arisen on top of a minor organic problem to make it more serious?
A: No.
[emphasis added]
166 In the context of this analysis of the medical evidence concerning the organic and non-organic components and the clinical state of Mrs Kelk’s larynx, the Tribunal also had regard to the report of Dr Varghese dated 23 February 2012 (Ex 31) at para (iii) of the conclusions (which are set out at [100] of these reasons), in these terms:
Ms Kelk’s neurological-like symptoms in her arms and her voice and swallowing problems do not represent organic disease. Rather they are symptomatic of depressive illness, in other words they represent depressive equivalents.
[emphasis added]
167 Having undertaken an analysis of the competing medical evidence, the Tribunal reached these conclusions at paras 88 and 89:
88. I have come to the conclusion that I ought to prefer the evidence of Dr Jobbins to that of Dr Broadhurst. I do not intend to criticise Dr Broadhurst however I consider that he has too readily accepted uncritically the history given by Mrs Kelk. That is understandable given his role as the treating doctor but I have concluded that Mrs Kelk is not a reliable historian; other evidence that I accept not only does not support what she says, it flatly contradicts it. I refer, in that regard, to the evidence of Mr Muir and Ms Solomon as to their observations about Mrs Kelk’s voice problems.
89. Dr Jobbins’ evidence is confirmed by that of Dr Varghese. Moreover, it is consistent with Dr Broadhurst’s prognosis in July 2011 that Mrs Kelk should make a good recovery. Dr Broadhurst was unable to explain to me why that good recovery did not take place or how Mrs Kelk could still be suffering from vocal overuse injury more than 12 months after ceasing work in a call centre without any objective clinical findings. In that regard I prefer the opinion of Dr Jobbins, informed by his considerable experience, that the video does not demonstrate any organic disorder in the larynx.
[emphasis added]
168 It followed for the Tribunal that it could not be satisfied that Mrs Kelk’s accepted injury had resulted in a permanent impairment. Accordingly, the Tribunal affirmed the decision to refuse Mrs Kelk’s claim for compensation for permanent impairment.
The legal framework
169 I have examined the process of reasoning adopted by the Tribunal both in relation to the finding concerning Mrs Kelk’s credit-worthiness and the Tribunal’s assessment of the medical evidence, in considerable detail, in part, because Mrs Kelk is self-represented and, more particularly, due to the nature of the claims she makes, in relation to the Tribunal’s treatment of the medical evidence. The Tribunal has identified its conclusions in relation to the assessment of the medical evidence under the heading of each particular claim. However, the Tribunal’s assessment of the medical reports and oral evidence (and the ultimate findings) needs to be considered in the context of the discussion throughout all of the Tribunal’s reasons notwithstanding the Tribunal’s sequential analysis of each particular claim. I have examined these matters in detail because fundamentally Mrs Kelk contends that the Tribunal fell into error in the discharge of its statutory review function by failing to have regard to the evidence of Ms McCormick and, more particularly, by failing to have regard either at all to some of the medical evidence, or proper regard, to the medical evidence upon which Mrs Kelk relies (including Ms McCormick’s evidence).
170 The notion that the Tribunal failed to have “proper regard” to the evidence relied upon by Mrs Kelk, itself suggests an evaluative judgment about the merits of that evidence.
171 In this context, it should be kept firmly in mind that s 44(1) of the AAT Act confers upon a party a right of appeal to the Federal Court on a “question of law”. The Federal Court does not undertake a “re-hearing” de novo of questions of fact and law examined by the Tribunal in the discharge of its statutory review function. Nor does the Federal Court undertake general merits review of the Tribunal’s decision.
172 The applicant appellant must identify a question of law to be determined on the appeal. In discharging its statutory review function, the Tribunal might fall into error of law giving rise to a question of law on an appeal. The nature of that error, and the consequential question of law, is understood in terms of the orthodoxy of Craig v South Australia (1995) 184 CLR 163 at 179, per the Court, and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 at [82] per McHugh, Gummow and Hayne JJ, in these terms (Craig at p 179 and approved in Yusuf at [82] and subsequent authorities):
If [an administrative tribunal such as the Administrative Appeals Tribunal] falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power [and discharge of the review function] is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
173 Although Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (“Peko-Wallsend Ltd”) was concerned with questions of the scope of judicial review under the Administrative Decision (Judicial Review) Act 1977 (Cth), Mason J observed at pp 39 to 41, as a matter of general principle, that the factors an administrative decision-maker is bound to consider in making a decision are determined by a construction of the statute conferring the power. The statute might exhaustively state those matters or merely recite them in an inclusive way. If not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act.
174 Some evidential questions, however, may give rise to a question of law. In Minister for Immigration & Multicultural Affairs v Al-Miahi [2001] FCA 744, Sundberg, Emmett and Finkelstein JJ said this at [34]:
The question whether there is any evidence of a particular fact is a question of law. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law. That is because, before the inference is drawn, there is a preliminary question as to whether the evidence reasonably admits a different conclusion. Accordingly, in the context of judicial review, the making of findings and the drawing of inferences in the absence of evidence is an error of law. On the other hand, there is no error of law simply in making a wrong finding of fact. … A party does not establish an error of law by showing that the decision-maker inferred the existence of a particular fact by a faulty process, for example by engaging in an illogical course of reasoning. Thus, at common law, want of logic is not synonymous with error of law. So long as the particular inference is reasonably open, even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place – Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-6.
[emphasis added]
175 In Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230 (“Wednesbury Corporation”), Lord Greene MR developed his well-known and oft-quoted formulation of unreasonableness concerning a decision that is so unreasonable that no reasonable person could have arrived at it. In Minister for Immigration and Citizenship v Li (2013) 87 ALJR 618 at 638 (“Li”), Hayne, Kiefel and Bell JJ at [68] observe that Lord Greene MR’s formulation of unreasonableness should not be regarded as limited to a decision which “is in effect an irrational, if not bizarre, decision”. Lord Greene MR in framing his “doctrine” recognised that the grounds upon which an exercise of power might be challenged could be brought within “a single head of unreasonableness”. In Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1064, Lord Diplock observed that unreasonableness would be made out where “no sensible authority acting with due appreciation of its responsibilities” would have reached the decision in question. Their Honours in Li at [71] recognise that such a formulation “reflects the requirement of the law that a decision-maker understand his or her statutory powers and obligations” and “is evident in the more specific errors, going to jurisdiction, which the law recognises and to which Lord Greene MR referred in [Wednesbury Corporation], such as misdirecting oneself as to the operation of the statute, taking into account irrelevant considerations or failing to take into account relevant considerations”.
176 Their Honours also observe at [72] that these more specific errors in decision-making “may also be seen as encompassed by unreasonableness” and at [76] unreasonableness “is a conclusion which may be applied to a decision which lacks an evident and intelligible justification”. An administrative decision must be supported by evidence and reflect intelligible reasons (grounded in rationality and the “rules of reason”: see Li per French CJ at [26]).
177 A distinction is to be drawn between the exercise of a statutory power in discharge of a statutory jurisdiction on the one hand, and the exercise of a statutory power characterised as a statutory discretion, on the other. The question of whether an administrative statutory discretion has miscarried in its exercise, on the ground of unreasonableness, is to be assessed in a way analogous to the review on appeal of the exercise of a judicial discretion in accordance with the well-understood principles discussed in House v The King (1936) 55 CLR 499 at 504-505.
178 It is also appropriate to recall the following observations of Mason J in Peko-Wallsend Ltd at pp 40-42 concerning a decision-maker failing to take into account a relevant consideration, and taking into account an irrelevant consideration:
Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision. … A similar principle has been enunciated in cases where regard has been had to irrelevant considerations in the making of an administrative decision. …
The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned: Wednesbury Corporation.
It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power. … I say “generally” because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is “manifestly unreasonable”.
[citations omitted and emphasis added]
179 In conducting a review, by application made under s 64 of the SRC Act, of the four reconsideration decisions of the respondent made under s 62(4) of the SRC Act, the Tribunal exercised a review power under s 25(4) of the AAT Act and for that purpose s 43(1) of the AAT Act provides that the Tribunal “… may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision …”.
180 The particular statutory framework is this.
181 Section 14 of the SRC Act renders Australia Post liable to pay compensation in accordance with the SRC Act in respect of an injury suffered by an employee if the injury results in, relevantly, incapacity for work, or impairment. In the case of incapacity for work as a result of an injury, compensation is to be calculated under Div 3 of Pt II. Where an injury to an employee results in permanent impairment, Australia Post is liable to pay compensation in respect of that injury by operation of s 24 of the SRC Act.
182 Section 5A(1) of the SRC Act is in these terms:
5A Definition of injury
(1) In this Act:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
[italic emphasis added]
183 Section 5A(2) of the SRC Act provides, for the purposes of s 5A(1), without limitation, that reasonable administrative action is taken to include six identified things. Section 5B(3) provides that in the SRC Act the term significant degree means a degree that is “substantially more than material”. Section 5B(1) is in these terms:
5B Definition of disease
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(a) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
[italic emphasis added]
184 An ailment means “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”: s 4, SRC Act.
185 Section 5B(2) is in these terms:
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
186 The term aggravation “includes acceleration or recurrence”: s 4. In respect of impairment, that term means “the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function”: s 4. Section 24(2) sets out the circumstances a decision-maker is required to have regard to in determining whether an impairment is “permanent” and those factors are these:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee’s condition;
(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
187 Compensation, where an injury to an employee results in permanent impairment, is assessed having regard to the degree of permanent impairment determined by reference to an approved guide described as the Guide to the Assessment of the Degree of Permanent Impairment, (Second edition), and, in particular, Ch 7.4 of that Guide which deals with impairment to an employee resulting from interference with speech. The table within Ch 7.4 (p 61) contemplates a degree of impairment in the range 0% to 30% having regard to three factors, namely, audibility, intelligibility and functional efficiency. The table is in these terms:
| % WPI | Criteria | ||
Audibility | Intelligibility | Functional Efficiency | |
0 | Audible in most situations, although may require effort. | Generally intelligible, although some sounds are difficult and some repetition may be needed. | Speech can be sustained except for slowness and some hesitancy. |
10 | Audible in quiet situations but problems with audibility in noisy environments. | Intelligible although inaccuracies may be frequent and there are obvious difficulties with articulation. | Speech can be sustained but is often discontinuous, interrupted, hesitant and/or slow. |
15 | Voice tires rapidly, tends to become inaudible after a few seconds. Volume generally low. | Intelligible to family and close friends but strangers find speech generally unintelligible even with repetition. | Difficulty sustaining speech for more than brief periods even when speaks very slowly. |
20 | Volume very low. Can whisper or produce volume that can be heard only with difficulty by close listener or over the telephone. | Mostly unintelligible, except for a few words. | Laboured speech. Rate of sustained speech impractically slow. |
30 | Virtually inaudible. | Unintelligible. | No sustained speech. |
188 Chapter 7.4 suggests that if an employee is suffering from impairment in more than one of these categories, each area of impairment is to be assessed and the highest value of impairment selected as the “WPI” [impairment] rating (p 61). Section 24(5) of the SRC Act requires a determination to be made, under the provisions of the approved Guide, of the degree of permanent impairment of the employee resulting from an injury, which is to be expressed as a percentage (s 24(6)) and, by s 24(7), if the determined degree of permanent impairment is less than 10%, “an amount of compensation is not payable to the employee” under s 24 of the SRC Act.
189 Mrs Kelk claimed compensation under s 14 of the SRC Act in respect of a contended psychological condition on the footing that she had suffered a physical or mental ailment within the definition of a disease falling within the definition of an injury. The Tribunal concluded, on the facts, that it could not be satisfied that Mrs Kelk’s psychological condition was contributed to, to a significant degree, by the employee’s employment by Australia Post having regard to the s 5B(2) factors. The Tribunal did not conclude, and nor did Australia Post contend, that Mrs Kelk’s contended condition was excluded from the definition of an injury because the disease, injury or aggravation fell within the exclusionary limb of the definition in s 5A(1) of the SRC Act, that is, “[injury] does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment”.
190 Footnote 19 to para 22 of the Tribunal’s reasons makes that matter plain. The Tribunal’s finding was a threshold matter on the facts in that it concluded that it could not be satisfied that the claimed psychological condition was contributed to, to a significant degree, by Mrs Kelk’s employment by Australia Post. That conclusion was plainly open to the Tribunal on the facts and is supported by a rational process of reasoning.
191 Mrs Kelk contends that the Tribunal, in reaching that conclusion, failed to properly take into account and consider a substantial body of medical evidence which Mrs Kelk contends establishes a causal link between her employment with Australia Post and the psychological condition reflected in the medical evidence. Nevertheless, the respondent correctly contends that the conclusion reached by the Tribunal in weighing and assessing Mrs Kelk’s evidence and the medical evidence does not constitute an error of law on the part of the Tribunal. A Court exercising original jurisdiction in a controversy of fact of the kind before the Tribunal may have reached a different conclusion (or not). The point is that the Tribunal took into account the medical evidence in the context of the evidence of Mrs Kelk and the matrix of fact generally in reaching a deliberative conclusion on this question on the merits.
192 It cannot properly be said that there was no evidence to support the conclusion reached by the Tribunal. Nor can it properly be said that the decision reflects error of law as earlier described. Nor is the decision so unreasonable that no decision-maker, acting reasonably, could reach it having regard to the discussion of that notion reflected earlier in these reasons.
193 On this issue, it cannot be said that the Tribunal failed to take into account the evidence of the witnesses. Throughout the Tribunal’s reasons it directs analysis to the evidence of Dr Bocquee and, in particular, the evidence and medical notes of Mrs Kelk’s General Practitioner, Dr Hew. As the review of the Tribunal’s reasoning set out in these reasons reveals, the Tribunal considered the reports of Professor Champion and Dr Le Leu. The Tribunal also considered the reports of Dr Westmore and Dr Varghese and then reached a deliberative assessment of the weight to be attributed to the various reports. The Tribunal did not fall into error of law in reaching its conclusions about these matters. The conclusion was plainly open to the Tribunal.
194 In large part, Mrs Kelk’s written submissions and her oral submissions take issue with the Tribunal’s treatment and assessment of the medical reports and the totality of the medical evidence. In particular, Mrs Kelk contends that the Tribunal failed to recognise the gravity of the evidence of Dr Hew who, Mrs Kelk says, gave clear evidence of Mrs Kelk’s condition and its relationship with Mrs Kelk’s employment circumstances and tasks. However, two things need to be noted.
195 First, it is clear that the Tribunal had regard to the evidence of Dr Hew and particularly Dr Hew’s clinical notes. The evidence led by Mrs Kelk before the Tribunal in support of her claim of a psychological condition relevantly contributed to by her employment circumstances, was taken into account and weighed by the Tribunal.
196 Second, the analysis of that evidence reflects a deliberative analysis leading to a conclusion supported by the analysis. As earlier mentioned, it may be, that different conclusions were open or that a Court or other Tribunal charged with a review function might have reached a different conclusion. By making this observation I do not mean to suggest that the contentious factual questions alive before the Tribunal, if alive in another forum, would necessarily (or otherwise) have been decided differently. The short point is that the conclusion reached by the Tribunal was open to it and the process of reasoning does not reflect an error of law in the sense earlier described.
197 A very similar position prevails in relation to the assessment of the evidence in relation to Mrs Kelk’s claims of an injury concerning her left and right upper limbs. A large part of the submissions of Mrs Kelk are directed to demonstrating that the Tribunal failed to properly analyse the medical evidence and, in truth, reached a conclusion unsupported by the medical evidence. If the Tribunal had reached a conclusion which was simply not open on the medical evidence either because the medical evidence did not reflect the position attributed to it by the Tribunal or because the Tribunal chose to draw inferences from the medical evidence not open on findings of primary fact, that would be one thing. However, the Tribunal extensively evaluated, in the context of the particular claims, the body of medical evidence before it and reached conclusions open to it.
198 Again, the totality of the reasons reflect that the Tribunal gave great consideration to the evidence of Dr Hew, Dr Le Leu and Professor Champion. Aspects of the reports and notes of those authors were considered under each claim and each conditional heading. However, it is clear that the Tribunal took all of the evidence into account in reaching its particular conclusions. In particular, the Tribunal examined in detail the professional medical opinion of Professor Champion and evaluated that opinion closely in reaching its conclusion. It cannot be said that the Tribunal failed to take Professor Champion’s evidence into account.
199 Although Mrs Kelk is strongly persuaded to the position that the Tribunal failed to grasp the gravity and significance of the evidence led on her behalf in support of her claims in relation to this condition, the reasoning of the Tribunal makes plain that there was evidence to support the conclusion reached and those conclusions reflect a rational analytical process of reasoning. Other decision-makers confronted with the same controversy might reach a different view (or not) but the conclusions reached were plainly open to the Tribunal. The decision that the Tribunal could not be satisfied that Mrs Kelk is suffering from an injury to her hands, arms and shoulders does not reflect an error of law in the sense earlier described in these reasons.
200 Mrs Kelk contends that the Tribunal’s conclusions in relation to her claims for incapacity payments in respect of her voice condition (Claim 2011/1494 in the period July 2010 to October 2010; and Claim 2011/1499 for the period 11 March 2011 to 11 April 2011) reflect an error of law on the footing that the Tribunal failed to take into account her evidence of when her voice injury commenced (that is, by late April or early May 2010) as reflected in the incident report she completed on 29 November 2010, and secondly, the Tribunal failed to have regard to the medical evidence relied upon by Mrs Kelk.
201 As to the claim for incapacity payments for the period July 2010 to October 2010 (Claim 2011/1494), the Tribunal’s reasoning, as described in these reasons, makes plain that the Tribunal understood and took into account the fact that Mrs Kelk had nominated 3 May 2010 as the date on which her voice injury began or occurred and that this date preceded the commencement of the claimed period of incapacity. The Tribunal did not overlook this factual matter and expressly had regard to Mrs Kelk’s evidence about it at para 65 as earlier noted in these reasons. The Tribunal had regard to Mrs Kelk’s evidence about her lengthy email to Dr Hew. The process of reasoning adopted by the Tribunal is described fully in these reasons. Ultimately, the Tribunal concluded that there was no evidence, which it could accept, that demonstrated that Mrs Kelk was suffering from any difficulties with her voice in the period July 2010 to October 2010 and therefore affirmed the decision under review. The particular criticism of the Tribunal’s decision made by Mrs Kelk is that it failed to appreciate her evidence that she had asserted on 29 November 2010 that the voice injury had occurred in either late April 2010 or early May 2010. However, as mentioned earlier, the Tribunal’s reasons make plain that it was astute to and took that fact into account. The Tribunal gave reasons for rejecting Mrs Kelk’s evidence, as described earlier in these reasons, and that conclusion was both open to the Tribunal on the evidence and supported by a rational process of reasoning. The conclusions of the Tribunal in relation to this claim were plainly open to it and do not reflect error of law.
202 By Claim 2011/1499, Mrs Kelk made a claim for incapacity payments for the period 11 March 2011 to 11 April 2011 in relation to her accepted voice condition. In reviewing the reconsideration decision of Australia Post, the Tribunal undertook the analysis of the evidence reflected at [124] to [139] of these reasons. In undertaking that analysis, the Tribunal had regard to the evidence of Mrs Kelk and the medical evidence of Dr Jobbins. The Tribunal also considered the evidence of Dr Le Leu and the notes and observations of Dr Hew. Mrs Kelk contends that the Tribunal failed to have regard to the report of Dr Broadhurst dated 16 April 2012 in reaching its decision in relation to the voice condition claim. The Tribunal in examining the permanent impairment claim arising out of her vocal injury examines the evidence of Dr Broadhurst. The Tribunal examines the opinion of Dr Broadhurst arising out of his examination of Mrs Kelk as early as May 2011. The Tribunal’s reasoning in that regard is examined extensively earlier in these reasons. It is not correct to say that the Tribunal did not take Dr Broadhurst’s report of 16 April 2012 into account in forming its views. At para 77 of the reasons, the Tribunal expressly refers to aspects of the opinion of Dr Broadhurst. In any event, at para 77 the Tribunal found that there was “simply no reliable evidence” that Mrs Kelk was incapacitated for work in the period March 2011 to April 2011 as a result of her voice condition.
203 That conclusion was open to the Tribunal and is supported by a process of reasoning.
204 Mrs Kelk contends that the Tribunal’s decision in relation to the review of the reconsideration decision concerning her permanent impairment claim reflects error of law on the footing that the evidence of Dr Broadhurst concerning the table in Ch 7.4 of the Guide was not taken into account. However, at paras 80 and 81 of the Tribunal’s reasons, the evidence of Dr Broadhurst is discussed by the Tribunal. There is simply no basis for the contention that the Tribunal failed to have regard to Dr Broadhurst’s evidence.
205 It plainly did so.
206 Mrs Kelk also contends that the Tribunal failed to have regard to the evidence of Ms McDowall, a Psychologist, although no particular detail is given of the evidence of Ms McDowall which the Tribunal was required to consider but failed to do so. More particularly, Mrs Kelk did not call evidence from Ms McDowall and counsel for Mrs Kelk did not rely upon Mrs McDowall’s letter within the T documents. No emphasis was placed upon it at all. In any event, the Tribunal placed weight on the psychiatric evidence.
207 Mrs Kelk both in her oral and written submissions and in the way in which she has framed the grounds relied upon, contends that the Tribunal failed to have regard to the evidence of Ms Wendy McCormick given at the Tribunal hearing, on the question of Mrs Kelk’s creditworthiness. It is correct to say that the Tribunal does not embark upon a consideration of the evidence of Ms McCormick in conducting a reasoned analysis of why it was unable to accept the evidence of Mrs Kelk. However, it is correct to say, as the respondent contends, that the failure of the Tribunal to conduct a deconstructed analysis of all of the evidence touching upon a particular matter in issue does not mean that the Tribunal has not considered the particular evidence.
208 Clearly enough, as Mason J observed in Peko-Wallsend Ltd, if the Tribunal has failed to give adequate weight to a relevant factor of “great importance” or has given excessive weight to a relevant factor of “no great importance”, the Court might find that the Tribunal has fallen into error of law. There are two things to observe about Ms McCormick’s evidence.
209 First, a proper reading of the Tribunal’s reasons does not lead to the conclusion that the Tribunal failed to have regard to Mrs McCormick’s evidence.
210 Second, it is correct to say that Ms McCormick’s evidence was not directly relevant to the factors the Tribunal emphasised in reaching an adverse conclusion about Mrs Kelk’s evidence. Ms McCormick was not able to give evidence, for example, in support of Mrs Kelk’s contentions about the 95% schedule adherence KPI. The Tribunal extensively examined the evidence of Mrs Kelk and reached emphatic findings about the creditworthiness of her evidence. The Tribunal also recognised the seriousness of making such findings and did not reach the findings lightly. I have examined in these reasons the foundation upon which those findings were reached. The Tribunal expressly said that it relied upon all of the examples identified by the respondent in its submissions before the Tribunal but proceeded to exemplify its concern about the reliability of Mrs Kelk’s evidence by reference to particular matters. Ms McCormick’s evidence was not directly relevant to those factors.
211 The Tribunal did not fall into error of law by failing to specifically address Ms McCormick’s evidence in its reasons on the question of Mrs Kelk’s creditworthiness.
212 As mentioned earlier, aspects of Mrs Kelk’s submissions seek to address an absence of evidence from the respondent before the Tribunal about whether the KPIs adopted by Australia Post represented “reasonable administrative action taken in a reasonable manner in respect of the employee’s employment”. However, the respondent did not contend that an answer to Mrs Kelk’s claim was that her contended “injury” fell within the exclusionary limb of the definition. The contention, on the facts, related to the threshold question and the Tribunal did not reach a decision to affirm the reconsideration decisions on the ground that the exclusion was satisfied.
213 The Tribunal reached its finding, as to conclusions on matters of primary fact, on the footing that there was no contribution to Mrs Kelk’s psychological condition, by a significant degree, of Mrs Kelk’s employment by Australia Post.
214 Paragraph 6 of Mrs Kelk’s written submissions in this Court are also directed to the issue of whether administrative action was reasonable. In that paragraph, and in paras 7, 8, 9, 10 and 11, Mrs Kelk is seeking to re-agitate factual questions which were the subject of findings by the Tribunal which were open to it. In seeking to re-agitate these matters, Mrs Kelk is inviting the Court to undertake a review of the deliberative merits of the Tribunal’s fact-finding, which is not the proper role of the Court in examining a contended question of law.
215 At para 12 of her submissions, Mrs Kelk contends that the Tribunal failed to consider that the applicant had, over a 10 year period, undertaken considerable repetitive keyboard work for many hours each working day and that these tasks were capable of causing overuse injuries. Mrs Kelk again refers to the evidence of Dr Hew on this topic and the evidence of Professor Champion. However, it is plain from the Tribunal’s reasons that it took these factual matters of long term repetitive keyboard tasks into account in evaluating Mrs Kelk’s evidence. The Tribunal also took into account the evidence of Dr Hew and Professor Champion.
216 In many respects, the proposition is not simply that the Tribunal failed to have regard to relevant and important evidence (as, in this example, the Tribunal actually had regard to the factual matter in issue) but that Mrs Kelk believes that a different conclusion ought to have been reached by the Tribunal. At para 13, Mrs Kelk says that the discrepancy in the schedule adherence KPI figures of 88% and 95% was an irrelevant consideration. However, the Tribunal had regard to Mrs Kelk’s evidence about this matter (as one example) in determining whether it could accept Mrs Kelk’s evidence. The Tribunal rejected Mrs Kelk’s evidence after carefully evaluating it, and the Tribunal’s conclusions in that regard were plainly open to it.
217 In the course of expressing its findings about Mrs Kelk’s creditworthiness, the Tribunal observed that it took account of and made allowances for the fact that Mrs Kelk suffers from a major depressive disorder. This represented a mitigating or qualifying consideration in the Tribunal’s assessment of whether to accept or reject Mrs Kelk’s version of the facts on many fronts. This was a circumstance the Tribunal was entitled to take into account in reaching its finding.
218 In any event, the Tribunal’s observation about this matter reflects a balancing factor which might have caused the Tribunal to weigh the balance in favour of Mrs Kelk.
219 This observation by the Tribunal was not a prejudicial one.
220 Finally, Mrs Kelk addresses submissions on the question of “reasonableness”.
221 She does so in the context of making observations about the Tribunal’s concern that although Mrs Kelk had said she had made a written complaint in response to threats made to her by Australia Post personnel, no document or record of any written complaint by her was produced in evidence. The Tribunal, as mentioned earlier, went on to observe that it was inconceivable that Mrs Kelk would not have documented these threats at the time (especially as a trade union delegate) had they been made as she contended. The Tribunal ultimately concluded that Mrs Kelk’s evidence of having made a written complaint was “simply not true” and was a “complete concoction”.
222 Mrs Kelk says that at no time was she asked to produce such a document in evidence. Nevertheless, it is clear from the material before the Tribunal that Australia Post’s position was that Mrs Kelk was not threatened in the way alleged and Mrs Solomon gave evidence to that effect. The Tribunal was entitled to attribute weight to Mrs Kelk’s failure to produce the contended written complaint as one aspect of the factors going to the question of whether the Tribunal could accept Mrs Kelk’s evidence.
223 The rejection of Mrs Kelk’s evidence was based on all of the considerations earlier described in these reasons.
224 The conclusions on that matter were open to the Tribunal.
225 Having regard to all of these matters it follows that Mrs Kelk’s application must be dismissed with an order that she pay the costs of the respondent of and incidental to the proceeding.
I certify that the preceding two hundred and twenty-five (225) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. |
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