Andrea Kelk and Australian Postal Corporation
[2013] AATA 75
[2013] AATA 75
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/0259;
2011/1494;
2011/1499;2011/5444
Re
Andrea Kelk
APPLICANT
And
Australian Postal Corporation
RESPONDENT
DECISION
Tribunal Deputy President P E Hack SC
Date 15 February 2013 Place Brisbane In each application the decision under review is affirmed.
..........................[Sgd]..............................................
Deputy President P E Hack SC
Catchwords
COMPENSATION – incapacity – not satisfied psychological condition contributed to, to a significant degree, by employment – not satisfied applicant suffered from injury to hands, arms and shoulders – not satisfied applicant suffered from any difficulties with voice in the relevant period – not satisfied applicant’s accepted injury resulted in permanent impairment – each decision under review affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 19, and 24
Cases
Secondary Materials
REASONS FOR DECISION
Deputy President P E Hack SC
Introduction
The applicant, Mrs Andrea Kelk, is a long-term employee of the respondent, Australian Postal Corporation (Australia Post). Mrs Kelk says that she suffers from a variety of ailments which she attributes to her employment with Australia Post. She made claims for compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). Australia Post rejected most of those claims.
Mrs Kelk now seeks a review of Australia Post's decisions to reject the claims.
Background
I will start with some uncontroversial background. Mrs Kelk commenced employment with Australia Post in 1995 when she was about 28 years old. Initially she worked as a postal services officer. In 2000 she commenced work as a Senior Customer Service Consultant at Australia Post’s Milton customer relations centre. From about 2007 Mrs Kelk commenced dealing with customer enquiries received by e-mail. She was required to use a computer keyboard and mouse during her working day and, from time to time, used a telephone. Mrs Kelk says that during this period of her employment she began to suffer pain in her left hand and arm. Subsequently she was able to move to a position that involved significantly less keyboard work which she says reduced the pain in her hand and arm.
Mrs Kelk's role changed again in February 2010 when she joined a group of employees dealing with complaints and enquiries about mail redirections. In this role, she said, the amount of typing required significantly increased[1]. Moreover, she said, she was dealing with more complex complaints that required more time to resolve and “all”[2] the customers she dealt with were irate.
[1] Exhibit 3, paragraph 16.
[2] Transcript page 26, line 7.
In around April or May 2010 Mrs Kelk says that she first noticed her voice becoming weaker, she found it difficult to swallow and developed pain and what she described as tension in her throat. She says that she consulted her general practitioner, Dr Peter Hew, when the problem started. However that doctor’s first clinical note of an attendance concerning her throat is on 17 July 2010 and the note of the subsequent consultation on 24 July 2010 refers to the symptoms having been present “since beginning of month”.
In July 2010 Mrs Kelk’s supervisor was Mr Joel Muir. On 22 July 2010 Mrs Kelk had a number of conversations with Mr Muir which he documented at the time in an “Issue Register”[3]. It will suffice for present purposes to note that in the afternoon of that day Mr Muir is recorded saying to Mrs Kelk that she “looked noticibly [sic] upset” and that, according to Mr Muir, 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 sick. Mr Muir's note of the conversation reads,
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].
Mrs Kelk did not return to work thereafter until early October 2010.
[3] Exhibit 30.
Mrs Kelk attended Dr Hew on 24 July 2010. He subsequently reported her complaints in these terms[4],
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 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.
[4] Exhibit 2(1), page 187.
On 2 August 2010 Mrs Kelk submitted the first of a number of claims for compensation for a condition described in the document accompanying it as “work related stress & overuse injury left & right upper arm”. Mrs Kelk was referred by Australia Post to Dr Alison Bocquee, a clinical psychologist. Dr Bocquee concluded[5] that Mrs Kelk appeared to meet the diagnostic criteria for adjustment disorder with mixed anxiety and depressed mood. Despite that conclusion, Australia Post rejected the claim on 9 September 2010.
[5] Exhibit 2(1), page 87.
That decision of 9 September 2010 was affirmed on reconsideration on 11 November 2010. That decision is the subject matter of application 2011/0259, lodged in the Tribunal on 21 January 2011.
Mrs Kelk says that when she returned to work in early October 2010 her voice and arms had improved with the break from work but that the symptoms returned once she resumed work.
Mrs Rebecka Solomon became Mrs Kelk’s supervisor within a short period after her return to work in October 2010. There was a significant discussion between Mrs Kelk and Mrs Solomon which Mrs Kelk’s submissions appear to accept took place in late October 2010, possibly 25 October 2010, which is the date of a note made by Mrs Solomon. There are differing accounts about the detail of the conversation however it is common ground that Mrs Kelk asked to be moved to an “outbound” role i.e. one that did not involve her in receiving customer calls.
On 29 November 2010 Mrs Kelk lodged an Australia Post incident report in which she complained of “Difficulty with swallowing, losing voice” and “Vocal overuse – caused by excessive talking without breaks”. The document records the injury as having occurred on 29 November 2010 and as being an aggravation of a previous injury which started on 3 May 2010. Mrs Kelk explains the recorded date of the incident on the basis that the computer on which she completed the document would not allow her to input a date earlier than the day of the report and that 3 May 2010 was chosen because a particular date was required to be entered and because it was “around April/May” that she first noticed the problem[6].
[6] Transcript page 41, lines 1 – 2.
Mrs Kelk consulted Dr Hew on 4 December 2010 complaining of a hoarseness of her voice, a dry throat and difficulty swallowing attributed to “constantly talking on the phone to customers without adequate rest breaks”[7]. Dr Hew provided her with a medical certificate requiring that, from 4 December 2010 to 4 March 2011, she be given adequate vocal rest of 5 to 10 minutes per hour at work.
[7] Exhibit 8, 4 December 2010.
On 6 December 2010 Mrs Kelk lodged a claim for compensation for “vocal overuse injury”, said to have been first noticed in April 2010. Australia Post referred Mrs Kelk to Dr Donald Jobbins, a consultant ear, nose and throat surgeon. He diagnosed her as having a “Hoarse voice associated with supraglottic muscle dystonia”[8] and suggested a Barium swallow and a period of voice therapy.
[8] Exhibit 2(2), page 71. In his oral evidence Mr Jobbins corrected the diagnosis to “dysphonia”.
Australia Post accepted liability to pay Mrs Kelk compensation for that condition on 9 March 2011. On 11 March 2011 Mrs Kelk obtained from Dr Hew a medical certificate indicating that she was unfit for work from 11 March 2011 to 11 April 2011. The certificate indicated that Mrs Kelk had been referred to a speech pathologist.
Acceptance of liability prompted Mrs Kelk to send an e-mail to Australia Post on 23 (or 24) March 2011 seeking to have her personal leave from July 2010 onwards re-credited to her[9]. That request was treated by Australia Post as a claim for compensation for total incapacity for a variety of periods of leave taken by Mrs Kelk between June and October 2010. The claim as formulated was refused by letter of 24 March 2011[10]. On 28 March 2011[11] Mrs Kelk sought reconsideration of the decision, limited to the period 24 July 2010 to 5 October 2010 when she had taken long service leave. The decision was affirmed on reconsideration on 12 April 2011[12]. That decision is the subject matter of application 2011/1494 lodged in the Tribunal on 21 April 2011.
[9] Exhibit 2(2), page 88.
[10] Exhibit 2(2), page 89.
[11] Exhibit 2(2), pages 92-93.
[12] Exhibit 2(2), pages 109-111.
In the meantime, on 28 March 2011, Australia Post refused to pay compensation by way of incapacity payments for the period 11 March 2011 to 11 April 2011. That decision was affirmed on reconsideration on 12 April 2011 and is the subject matter of application 2011/1499, lodged in the Tribunal on 21 April 2011.
Mrs Kelk returned to work in mid April 2011 and undertook restricted duties. She says that she continued to experience difficulties with her voice. She saw Dr Matthew Broadhurst, a consultant ear, nose and throat surgeon, in about July 2011[13]. He concluded that she suffered from muscle tension dysphonia and recommended ongoing speech therapy.
[13] Exhibit 2(5), pages 14-15.
Mrs Kelk says that during September 2011, and in her role as union representative, she raised health and safety issues with Australia Post management. This process, she says, led to her being formally counselled by Australia Post. Her managers have another explanation for the counselling however, whatever precipitated it, it appears to have taken place on 16 September 2011[14].
[14] Exhibit 2(6), page 87.
Mrs Kelk says that she continued to experience pain in her hands, shoulders and tailbone and found it difficult to stay at work even with the restrictions that have been put in place[15]. She says that she spoke to her rehabilitation case manager about further restrictions for her hands but was told that that was not possible. She says that she then realised she could not stay in her employment any longer. Mrs Kelk did not return to Australia Post after 12 October 2011.
[15] Transcript page 48, lines 37 – 40.
On 14 October 2011 Mrs Kelk made a claim[16] for compensation for permanent impairment occasioned by her voice injury. It was rejected on 11 November 2011 on the footing that the level of impairment did not reach the statutory minimum of 10%[17]. The decision was affirmed on reconsideration on 5 December 2011[18]. That decision is the subject matter of application 2011/5444 lodged in the Tribunal on 14 December 2011.
[16] Exhibit 2(5), page 22 and following.
[17] Exhibit 2(5), pages 44-45.
[18] Exhibit 2(5), pages 50-52.
The legislation
No detailed analysis of the SRC Act is called for. By a combination of ss 14 and 108A of the Act, Australia Post is liable to pay compensation in accordance with that Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. The term “injury” is defined by s 5A(1) of the SRC Act as meaning,
(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.[19]
[19]Australia Post did not suggest that Mrs Kelk’s condition was excluded from the definition of injury because it arose as a consequence of reasonable administrative action.
The term “disease” is defined in s 5B(1) of the SRC Act as meaning,
(a) an ailment suffered by an employee; or
(b)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.
A "significant degree" means a degree that is substantially more than material[20]. The matters that may be taken into account in determining whether an ailment or aggravation was contributed to, to a significant degree, by employment are set out, non‑exhaustively, in s 5B (2) of the SRC Act in these terms:
(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.
[20] See s 5B(3), SRC Act.
Once it be established (or accepted) that Australia Post is liable, pursuant to s 14 of the SRC Act to pay compensation to Mrs Kelk, it becomes necessary to consider particular forms of compensation. Two only are presently relevant, compensation for incapacity pursuant to Division 3 of Part II of the SRC Act and compensation for impairment pursuant to Division 4 of Part II.
By virtue of s 19 of the SRC Act, Australia Post is liable to pay compensation in accordance with Division 3 to an employee who is incapacitated for work as a result of an injury. It is unnecessary for present purposes to set out the complex provisions for the calculation of the amount of that compensation.
Section 24 of the SRC Act deals with compensation for injuries resulting in permanent impairment. Where an injury to an employee results in permanent impairment, Australia Post is liable to pay compensation to the employee in respect of the injury[21]. Impairment, for these purposes[22],
… 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.
In determining whether an impairment is permanent, Australia Post (and the Tribunal in its stead) is to have regard to[23]:
(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.
[21] See s 24(1), SRC Act.
[22] See the definition in s 4, SRC Act
[23] See s 24(2), SRC Act.
Compensation for permanent impairment is assessed having regard to the degree of permanent impairment, expressed as a percentage, by reference to an approved Guide. Chapter 7.4 of the Guide to the Assessment of the Degree of Permanent Impairment, (Second edition)[24] deals with impairment resulting from interference with speech. The table within that chapter sets out various criteria under the headings Audibility, Intelligibility and Functional Efficiency and percentages ranging from 0 to 30 as follows:
[24]In the absence of any argument from the parties to the contrary the Guide in force at the time of the claim has been used.
Table 7.4: Speech
% 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. The text in chapter 7.4 directs that if there are problems in more than one of those areas each should be assessed and the highest value selected as the WPI rating.
Finally, and by virtue of s 24(7) of the SRC Act, and subject to an irrelevant exception, compensation is not payable under s 24 of the SRC Act where it is determined that the degree of permanent impairment is less than 10%.
The credibility of Mrs Kelk
The case for 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. It was submitted that she 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. 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.
Australia Post's submissions[25] list a number of instances which it contends demonstrates the unreliability of Mrs Kelk's evidence. Some examples will suffice.
[25] Exhibit 43, paragraph 12.
It was a recurring theme of Mrs Kelk's evidence that she was measured by, and indeed oppressed by, Australia Post’s reliance on key performance indicators (or KPI's). One of those KPI's was called “schedule adherence”. In her written statement[26] in support of the claim for psychological injury Mrs Kelk spoke of significant changes which took place within Australia Post in early 2010. The statement continued,
[26] Exhibit 7, paragraph 14.
These changes have resulted in the intensifying of my already high and stressful workload, and put even more pressures and stresses on me, for the reasons detailed below;
· We 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.
As I had to drink a lot of water due to talking non-stop for long periods of time without a break (often for 2-3 hours, please refer to my trace reports), and with only a 1-4 second time delay between calls, I had to go to the toilet often. For this reason, I had real difficulties is meeting this KPI and was performance managed, then formally counselled for not meeting it.
When I voiced my concerns (my need to go to the toilet more often) to my team manager Bec Solomon, she just said “well stop drinking so much water”, and “only go to the toilet during your scheduled break times”.
Mrs Kelk explained the concept in her evidence in chief in these terms[27],
MR GREY: Mrs Kelk, we were dealing with your duties in the first part of 2012 when you were doing the complaints – redirection complaints. Now, can I go back to the question of the breaks that you were able to have in the course of a day. If you got caught on a long call, for example, what did that mean for your breaks subsequently?‑‑‑Well, that would mean that I started my break later and that affected my schedule adherence. There is a new KPI now that we could – we had had have 95 per schedule adherence, meaning that we could only be out of schedule by 21 minutes per day, so ‑ ‑ ‑
By out of schedule you mean, what, available to take calls, do you?‑‑‑No. We were allocated break times at certain times of the day ‑ ‑ ‑
I see?‑‑‑So if we went over into a break time – let’s say, if we were 25 minutes late to go for our break, then they didn’t adjust the schedule. That meant that I couldn’t – that I didn’t meet my schedule adherence KPI for that day, even though it wasn’t my fault because there’s nothing I can do. I can’t reduce a 25-minute call to three minutes so that I can go on my break.
All right. So for argument – so just to make this clear, if you had a call that went over the time when you were due to have your morning tea break by more than 21 minutes, Are you saying then you couldn't have that break; is that what you're saying?--- I could have a break, but I wouldn't meet my schedule adherence for that day.
[27]Transcript page 29, line 27 to page 30, line 2. Some minor typographical errors in the transcript have been corrected.
The question of the schedule adherence KPI was taken up with Mrs Kelk in cross-examination. She confirmed her recollection that it was introduced in early 2010[28]. And, she said, she and other staff were “pressured” to achieve an adherence KPI of 95%[29]. She said[30],
Every day we were pressured to meet 95 per cent. Every day we were pressured.
[28] Transcript page 83, line 25.
[29] Transcript page 83, line 40-42.
[30] Transcript page 85, lines 36-37.
There is, in the material[31] an e-mail of 8 July 2010 from Mr Joel Muir, Mrs Kelk’s supervisor at that time, which sets out the results in schedule adherence for, I assume, the preceding week, under the following commentary:
Good Afternoon Team
Our Team Schedule Adherence Strategy
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.
The e-mail goes on to detail strategies to improve performance. There is another e-mail from 14 July 2010[32] in which Mr Muir refers to “our initial target of 87%”.
[31] Exhibit 2(1), page 29-30.
[32] Exhibit 9
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 e-mails 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.
It is at least a part of Mrs Kelk's case that being counselled for not meeting KPI's contributed to her psychological state. The topic is referred to in the extract of her statement set out in paragraph 31 above. The consequence of a failure to meet schedule adherence was, according to Mrs Kelk’s evidence in chief[33],
[33] Transcript page 30, line 4.
You get formally counselled.
Mrs Kelk gave this oral evidence[34] about the occasion of being counselled,
[34] Transcript page 43, lines 22-32.
So in the course of an average working day, if we look at the month or two before 11 March 2011, how often were you going to the toilet in the course of your working day?‑‑‑About seven times.
And, I mean, was that being noticed by Rebecka Solomon?‑‑‑Yes, because I couldn't meet my scheduled ..... KPI because I had to go to the toilet so many times.
Were you counselled about it or ‑ ‑ ‑?‑‑‑Yes, she verbally counselled me, and ‑ ‑ ‑
What did she say?‑‑‑She told me to drink less water and to only go to the toilet in my scheduled break times.
In the course of cross-examination I asked Mrs Kelk about the consequences of failure to meet the schedule adherence KPI. She explained the matter in this way[35],
What was the consequence of not meeting this KPI? What happened?‑‑‑We were formally[[36]] 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 to three days after you’ve put – you’ve had your verbal talk with your team manager then you were formally counselled.
So that’s a different – something different from the first counselling?‑‑‑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?”.
But – sorry. Was there counselling and formal counselling?‑‑‑There was verbal counselling.
Right?‑‑‑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.
[35] Transcript page 89, line 44 to page 90, line 14.
[36]The transcript shows this word as “fully”. I consider that to be a transcription error and that the word Mrs Kelk used was “formally”.
Mrs Kelk said in cross-examination[37] that she had been counselled by Mrs Solomon once informally and once formally. Mr Harding, counsel for Australia Post, took Mrs Kelk to a report of a counselling interview that had been prepared by Mrs Solomon in order to elicit some detail from the talk about the process. It was not an easy task as the following passage of evidence[38] demonstrates:
[37] Transcript page 91, line 27-28.
[38] Transcript page 92, line 9 to page 93, line 26.
MR HARDING: Yes. Now, have you seen that document before?‑‑‑I think so.
Yes. Okay. Now, it outlines, on the second page, some history and what I suggest to you is that the process which led to this formal counselling really commenced on 17 December when an action plan was agreed between you [and] Rebecka Solomon to assist you in improving with your adherence?‑‑‑Yes.
And you volunteered how you would go about achieving that when you had a discussion with her on 17 December by taking allocated time for breaks, only taking allocated time of 10 minutes for outbound work?‑‑‑For outbound work.
Yes?‑‑‑Well, I had no choice. She wouldn’t listen to reasons why I was late.
Well, what I’m suggesting is that you volunteered that this is how you would address ‑ ‑ ‑?‑‑‑No, I didn’t. She volunteered it for me.
What I suggest to you is that in her approach to you she was not treating the KPI as the focus but rather looking at what behaviour or work practice was occurring that was causing you, in this instance, not to meet the adherence KPI?‑‑‑I was late on my outbound work into my inbound log and into my inbound work because I was finishing off my outbound work.
But her approach to you was not, “Well, you breached a KPI”. It was rather, “What is the behaviour that we need to look at to see why you’re not meeting your KPI”. That’s right, isn’t it?‑‑‑I was finishing off my outbound work because we couldn’t leave – log ‑ ‑ ‑
THE D.PRESIDENT: Mrs Kelk, that’s not the issue. Mr Harding, I don’t think Mrs Kelk understands your question. It’s a difficult concept that you’re asking her to comment on. You need to put it a bit more simply.
MR HARDING: Okay. Well, I will try it again.
What I suggest to you is that Rebecka Solomon was looking at how to coach you to meet your KPI. She wasn’t criticising you. She was seeking to coach you. That’s right, isn’t it?‑‑‑I can’t answer you.
Why can’t you answer, Mrs Kelk? You were dealing with Mrs Solomon?‑‑‑I was finishing one work to log into another work.
And I suggest to you that the way she went about coaching you was to get you to decide on what actions you would take to avoid not meeting the adherence time of being where you were supposed to be when you were supposed to be there?‑‑‑I was sitting in the same place working from one inquiry to one other. I was late logging into inbound call-taking because I was finishing my work off in the outbound work. It’s not something I should have been coached on in the first place. I was where I was supposed to be at the time I was supposed to be, finishing one task and going into another task. It does not require coaching. It should not have required coaching.
THE D.PRESIDENT: Mrs Kelk, you’ve answered the question. Well, in fact, you haven’t answered the question but you’ve given a response to the question.
MR HARDING: Now, when you spoke with Rebecka Solomon on 17 December it’s clear, isn’t it, that she wasn’t formally counselling you?‑‑‑Well, what was she doing then?
She was identifying with you a behaviour which she wanted you to identify how to address to meet your adherence, wasn’t she?‑‑‑I can’t answer you.
Now, it was an informal process at that time when she spoke with you on 17 December, wasn’t it?‑‑‑I don’t know.
She didn’t – well, you say you don’t know. Well, what do you say was involved with her talking with you about not meeting adherence?‑‑‑I can’t remember.
You can’t remember?‑‑‑No.
That extract demonstrates a frequent occurrence in the course of Mrs Kelk’s evidence, the habit of avoiding answering simple question 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.
Mrs Kelk made much of being “threatened” if she did not meet Australia Post's standards. She was, she said, “constantly threatened”[39] with formal counselling if she did not meet her KPI's. Her evidence continued[40]:
And who do you say was threatening in this respect?‑‑‑Rebecka Solomon.
And when do you say these threats were made?‑‑‑October, November and December.
Okay. And what do you say was the content of the threat? How was it delivered to you?‑‑‑After I got my stats in the mornings, there was always – she 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.
Moreover, said Mrs Kelk, there were more than three occasions when Mrs Solomon was her supervisor that Mrs Solomon told her that if she did not improve her performance she would be “performance managed out”[41].
[39] Transcript page 134, lines 29 – 30.
[40] Transcript page 134, lines 32 – 40.
[41] Transcript page 94, lines 5 – 25.
Mrs Kelk says that she made a written complaint in response to these threats[42]. At this time, Mrs Kelk was a delegate for the trade union. She was plainly not afraid to voice strong opinions about steps taken by Australia Post with which she did not agree[43]. Yet, and despite asserting that such a document existed[44], no record of any contemporaneous complaint by her is able to be produced. No mention was made of these threats in Mrs Kelk's statement to Dr Bocquee in August 2010[45] or her e-mail to Dr Hew of 26 July 2010[46]. No mention is made of these threats in the detailed histories taken by Dr Bruce Westmore[47] or Dr Frank Varghese[48].
[42] Transcript page 94, line 46
[43] See for example exhibit 13.
[44] Transcript page 94, line 4 to page 95, line 45.
[45] Exhibit 2(1), pages 69 – 70.
[46] Exhibit 2(1), pages 71-72.
[47] Exhibit 20.
[48] Exhibit 31.
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.
There are other instances where the contemporaneous documents do not bear out Mrs Kelk's account. Her voice, she said, had become weaker by late April or early May, she was finding it difficult to swallow and her voice had become hoarse causing her pain. Despite her professing a recollection of seeing Dr Hew to complain of these things at the time, his clinical notes[49] make no reference to voice problems until 17 July 2010. The entry on that occasion is in these terms,
Feels mucous caught half way 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.
The entry for the following consultation on 24 July 2010 refers to the difficulty in swallowing having been present “since beginning of month”.
[49] Exhibit 8.
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.
Mr Muir had 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.
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. The entry for 15 July 2010 reads,
I was walking past Andrea and overheard that she was speaking with [a named individual] regarding Schedule Adherence. Andrea was discussing how she thought it was difficult. I advised Andrea that the Teams results were steadily improving and that she received 93% with her schedule adherance [sic] for yesterday. I advised that this was much better than the KPI of 88% and had even beaten 92% which was my ideal. Andrea seemed happy with this.
That evidence again illustrates the extent of Mrs Kelk’s exaggeration about the pressure to meet schedule adherence KPI’s.
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. Mr Muir recorded the following,
22/07/2010Andrea advised me and sent an email that she will not be adhereing [sic] to the requirement of not placing a customer on hold only when leaving desk. Andrea advised that they were told to keep the customer on hold, while they did the required duties. I advised that she must have misinterpreted the previous emails and that we advised to keep the customer on the line and to show good customer service by being upfront and making them aware of the issues. Andrea advised that she thought it was stupid and Managers need to prove that it can be done first. I advised Andrea that Managers will not be doing this as we are empoyeed [sic] to manage the workflow and that this was a reasonable request. I offered Andrea advise [sic] that we should give the customers updates such as what you are doing for them in the moment rather than placing them on hold. Andrea then said again that this was unfair and that she will go to Fair Work and Union.
5.12pm(Further to the above) I advise that although I believe these new expectations are very reasonable if she wanted to pursue these paths this was her right. I also advised Andrea that she originally said that Schedule Adherence was impossible and for all but a few instances she had managed to complete this correctly and on some occasions beyond expectation as we had discussed previously. I then said to Andrea that she looked noticibly [sic] upset and recomended [sic] that she go into the Administration Exception Code, write down her time, and go into the breakout room for 5 minutes to calm down. I also advised Andrea that when she returns she will need to put in a [sic] Exception so that this time does not go against her schedule adherance [sic].
5.22pmAbout 10 minutes after the above incident [a named individual] asked where Andrea was. I advised that I said for her to have a few minutes as she was upset and… iterated that she had now been in not ready for over 10 minutes.
5.23pmDue to the above conversation I then went to the Break Out room and found that Andrea was looking out the window. I advised Andrea that she had been off the phones for some time and that the phone lines were no [sic] busy. Andrea advised that she would not take anymore [sic] calls today as she thought the new expectations were stupid and not reasonable. I advised Andrea that like Schedule Adherance [sic] I believe this is reasonable and that keeping the customers off hold would be something that we would have to work towards and that it would not happen over night [sic]. Andrea then iterated that she would not be doing this and not be taking another call. Andrea left at 5:30 without completing any further work.
23/07/2010Andrea advise [sic] [by telephone] 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 we will have to follow the specified process. Andrea advised she is seeing a solicitor prior to doing anything further. Andrea advised this meeting with a solicitor maybe [sic] She is also lodging a compliant [sic] with com care [sic].
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.”[50] 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.
[50] Exhibit 2(1), page 187.
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.
It follows that I reject Mrs Kelk's allegation[51] 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].
[51] Exhibit 7, page 9.
Mrs Kelk’s written submissions[52] 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. 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.
[52] Exhibit 42, paragraph 8.1.
The particular claims
In light of these conclusions I turn to consider the particular claims in issue in the proceedings. It seemed logical to start with that concerning Mrs Kelk’s psychological condition.
The psychological condition claim
It is undoubtedly the case that Mrs Kelk has some history of attendances on Dr Hew complaining of what might loosely be called “stress” at work. His clinical notes[53] show that in May 2001 she reported,
Stressed and tense from work handling complaints etc and also chronic urticaria making her extremely anxious and nervy.
There is a reference in March 2002 to Mrs Kelk having a stressful job and that she “bottles stress in at work”. Then in March 2004 this entry appears,
Stress at work – working at call center taking complaints. Feeling depressed, angry and anxious.
Thereafter references are made to the impact of these matters on Mrs Kelk’s personal life. Dr Hew prescribed an antidepressant medication. That was changed to another medication which appears to have been last prescribed in mid May 2004.
Then, in August 2005 Dr Hew recorded a 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.
[53] Exhibit 8.
The next consultation with Dr Hew that appears relevant came in January 2010 when Mrs Kelk complained of depression which Dr Hew characterised as endogenous. Then in July 2010 following the interaction with Mr Muir two days earlier, Mrs Kelk again attended Dr Hew complaining of stress. The terms of her complaints are set out in paragraph 7 above.
I had the benefit of the evidence of two consultant psychiatrists, Dr Westmore and Dr Varghese [54].
[54]There is, as well, a report from Dr Bocquee, a clinical psychologist, however I find it unnecessary to have regard to her opinions given her lesser qualifications.
Dr Westmore saw Mrs Kelk in January 2012. He concluded that she suffered from a major depressive disorder. As to causation he said[55],
Based on her history, herexposure to a series of chronic stressors in the workplace was directly responsible for her becoming psychiatrically unwell. Her employment was therefore a substantial contributing factor in the onset of her Major Depressive Disorder.
In his subsequent report, when asked to comment on the views of Dr Varghese, Dr Westmore said,
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.
[55] Exhibit 20, page 8.
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.
Dr Varghese saw Mrs Kelk in December 2011. He also diagnosed major depression however he concluded that it was recurrent. He considered the condition to be “essentially constitutional in origin”[56]. Of particular interest are the following conclusions of Dr Varghese[57],
(i)The principal clinical issue is that Mrs 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 Mrs 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)Mrs 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.
[56] Exhibit 31 at page 22.
[57] Exhibit 31 at page 20.
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 those conditions. I note the apparent force of the criticisms of Dr Varghese implicit in Mr Grey’s cross-examination[58] 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. The answer to the criticism lies in these answers from Dr Varghese,
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?‑‑‑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.
Well, I know that but ‑ ‑ ‑?‑‑‑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.
[58] At transcript pages 338 – 342.
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.
The hand, shoulder and arm claim
It is next necessary to deal with Mrs Kelk's hand, arm and shoulder condition. Her case is that the work that she undertook over a number of years and for many hours each working day involved considerable repetitive keyboard work. This work, it is submitted, is inherently capable of causing overuse injuries. Australia Post is criticised on the footing that it appears that it,
… seeks to contest the substance of this basic issue all over again, much like the tobacco industry contesting the harmful effects of smoking for so many decades, notwithstanding overuse injuries being considered under the SRC Act and routinely accepted by the Tribunal, depending of course on the particular facts applicable to each case.
But there lies the key to this case. 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.
Mrs Kelk relied upon the evidence of Dr David Champion, a specialist physician, who has made a particular study into pain over the past 20 years. He saw Mrs Kelk in January 2012 and produced a report dated 7 March 2012[59] in which he diagnosed Mrs Kelk as suffering from,
… a chronic neck, head and upper extremity regional pain syndrome (“overuse injury”) with associated anxiety and depression.
That opinion is best explained the following extract from his report[60]:
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 a 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.
[59] Exhibit 19.
[60] Exhibit 19, pages 9-10.
Australia Post relied on the evidence of Dr Ronald Hazelton, a consultant rheumatologist, who saw Mrs Kelk in June 2011. When asked to report what condition Mrs Kelk suffered from in respect of her upper limbs he expressed his opinion in this way[61]:
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.
He went on to say[62]:
Mrs Kelk is very determined in the pursuit of multiple claims for many miscellaneous subjective symptoms affecting her upper limbs. Her perceptions 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 [sic] process is completed and her perception of the workplace improves, or she finds a different workplace.
[61] Exhibit 35, page 10.
[62] At page 12.
Mrs Kelk’s submissions were highly critical of Dr Hazelton. It must be said that he displayed a degree of dogmatism that might be thought to be unusual in an expert obliged to assist the Tribunal. And I think Mr Grey is right to observe[63] that Dr Hazelton took “a general swipe” at the Tribunal, apparently over past decisions. But what is apparent from his 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.
[63] Exhibit 42, paragraph 4.5.
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.
The incapacity claim – July to October 2010
Australia Post has accepted liability to pay Mrs Kelk compensation, in accordance with the SRC Act, for the condition “Hoarse throat associated with supraglottic muscle [dysphonia][64]”. By virtue of s 19 of the SRC Act, Australia Post is liable to pay compensation, determined in accordance with Division 3 of Part II of the Act, to Mrs Kelk if she is “incapacitated for work as a result of an injury”.
[64]It seems to be common ground that the condition should be dysphonia, not dystonia, used in error in Dr Jobbins in his report and adopted by Australia Post when accepting the claim.
There is no doubt that Mrs Kelk was absent from work during this period however, for the reasons that follow, I am not satisfied that she was incapacitated as a result of the accepted voice injury or, for that matter, any other compensable injury. I have not found it necessary, in coming to that view, to resort to issues of timely notice by Mrs Kelk to Australia Post[65]. I have come to that conclusion by reference to the absence of evidence of a connection between the absence from work and any compensable injury.
[65] See paragraph 6.1 of Mrs Kelk’s written submissions, Exhibit 42.
Mrs Kelk's evidence is that, by late April or early May 2010, her voice had become weaker and hoarse and that she was finding it difficult to swallow. She says that she consulted Dr Hew around the time of the onset of the claimed symptoms but there is no reference in his clinical notes to such a consultation. As I have already said[66] the first reference in the clinical notes to any “voice” issue is that reference on 17 July 2010 to a problem when swallowing which was said on the subsequent consultation to have been present since the beginning of that month. Dr Hew provided Mrs Kelk with a medical certificate following the visit of 24 July 2010 which makes no reference to any problems with her voice. In his letter to Australia Post of 29 October 2010 Dr Hew referred to this history given by Mrs Kelk on 24 July 2010,
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.
[66] See paragraphs 5 and 40 above.
Following the consultation on 24 July 2010 Mrs Kelk forwarded a lengthy e-mail to Dr Hew setting out “detailed information … regarding my employment with Australia Post”[67]. No mention is made in that document to any complaint regarding her voice; reference is made only to “difficulty swallowing”. In connection with her attendance on Dr Bocquee, Mrs Kelk signed a statement[68] which, amongst other things, listed the symptoms she was then experiencing. No reference was made to any difficulties with her voice.
[67] Exhibit 2(1), pages 71-72.
[68] Exhibit 2(1), pages 68-70.
Dr Hew provided Mrs Kelk with a medical certificate of 4 December 2010[69] in which he diagnosed that she was suffering from dysphonia, hoarseness of voice, difficulty swallowing and dryness of throat however that certificate contains no opinion about the time of onset of that condition.
[69] Exhibit 2(2), page 34.
Mrs Kelk claimed to have made complaints to Mr Muir about this condition “a number of times”[70] before she went on leave in July 2010. He denies any such conversations[71] and says that he did not notice that her voice was, as she said, raspy and hoarse in June and July 2010 despite being in a position to hear her speaking on a regular basis in conversations with him and in conversations monitored by him[72]. Mr Muir’s evidence is that, had there been such a conversation, he would have made a note of it in the Issue Register. As I have said, I accept his evidence and do not accept that of Mrs Kelk.
[70] Transcript page 41, line 18.
[71] Exhibit 29, paragraph 7.
[72] Transcript page 300, line 37 to page 301, line 30.
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.
The incapacity claim – March to April 2011
A similar issue arises in application 2011/1499 in relation to Mrs Kelk’s claim for compensation for incapacity for the period from 11 March 2011 to 11 April 2011.
Mrs Kelk says that in the period from the return to work in October 2010 she experienced vocal difficulties with the result that, on the basis of a certificate from Dr Hew, she was put on restricted duties. The certificate required that she should be given adequate vocal rest of 5 to 10 minutes per hour. It related to the period from 4 December 2010 to 4 March 2011.
Mrs Kelk's statement[73] details the difficulties she claims to have experienced thereafter and an account of her interactions with Ms Solomon. In essence, she says that by mid- February 2011 her vocal injury was keeping her awake at night and that she was thus increasingly tired and sleepy at work. The result, she says, was that she was falling asleep at her work and not meeting her schedule adherence KPI which, she says, led in turn to her being verbally counselled and then formally counselled by Ms Solomon on 10 March 2011. She saw Dr Hew the following day.
[73] Exhibit 4.
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.
So far as the contemporaneous medical records are concerned, Mrs Kelk saw Dr Jobbins on 9 February 2011. He concluded that she was not then capable of undertaking her pre-injury duties on a full-time basis[74] and that her return to work schedule should be determined by a speech therapist. She saw that therapist, Ms Lesley Henderson, on 29 March 2011. Her report of that date[75] does not suggest that Mrs Kelk was then incapacitated for work.
[74] Exhibit 2(2), page 72.
[75] Exhibit 2(2), page 94.
On 25 February 2011 Mrs Kelk was seen by Dr Leon Le Leu, an occupational physician, at the request of the solicitors then acting for her. Dr Le Leu recorded the following complaints that might be thought to bear on the issue of Mrs Kelk’s claimed incapacity[76],
· 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 2 pm but she cannot sleep then.
· …
· 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.
As to Mrs Kelk's voice Dr Le Leu recorded,
· 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.
[76] Exhibit 22, page 5.
In December 2010 Dr Hew had certified Mrs Kelk to be fit for suitable duties i.e. duties with 5 to 10 minutes of rest breaks every hour, up to 4 March 2011. Then on 11 March 2011 he concluded that she was not able to work from that date until 11 April 2011[77]. He later explained the change in this way[78],
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 Jobbin’s assessment and Australia Post’s eventual acceptance of her condition being work related.
Ms Kelk's returned [sic] 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 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 you 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.
[77] Exhibit 2(2), page 79.
[78] Exhibit 2(2), page 90.
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.
I would then affirm the decision to reject Mrs Kelk's claim for compensation for incapacity over this period.
The permanent impairment claim
Mrs Kelk contends that she has a permanent impairment as a consequence of her vocal injury. She relies upon the views of Dr Broadhurst to contend that she has a permanent impairment of 15%. For its part, Australia Post contends that Mrs Kelk no longer suffers from an organic condition attributable to her employment but says that, in any event, any permanent impairment should be assessed at 0% which is not compensable. Australia Post relies on the evidence of Dr Jobbins in particular but points, as well, to the conclusions of Dr Varghese.
Dr Broadhurst first saw Mrs Kelk in May 2011. He subsequently reported his examination on that occasion as follows[79],
[79] Exhibit 2(5), pages 14 to 15.
Exam showed limited breath support but clear, al beit [sic]quiet very voice [sic]. 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 2 months.
I anticipate a very good recovery should she follow with due diligence the treatment recommended by Mrs Henderson.
In that latter regard Dr Broadhurst had earlier commented,
She then had been having sessions with Mrs Lesley Henderson but there was very little progress. 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.
Mrs Kelk returned to see Dr Broadhurst in July 2011. On this occasion he reported his examination in this way,
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.
Dr Broadhurst provided a report to Mrs Kelk’s solicitors in April 2012. That raised for the first time an issue that assumed considerable importance at the hearing: whether the amplitude of Mrs Kelk’s mucosal wave was normal or not. Dr Broadhurst examined Mrs Kelk using stroboscopy which he said enabled him to discern reduced amplitude in the mucosal wave. 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. Dr Broadhurst made the following comments in relation to the particular criteria (with his % rating):
Audibility:
Ms 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. These [sic] 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.
Dr Jobbins’ first report has already been noticed. Dr Jobbins provided a further report[80] to Australia Post's solicitors of 3 August 2011 after having reviewed further documentary material. He diagnosed Mrs Kelk's condition as hoarse voice and dysphonia and observed that a psychological element did play a “significant role” in Mrs Kelk's case. Having referred to his initial diagnosis of hoarse voice and dysphonia he continued,
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 dystonia (this was after she had had six sessions of speech therapy), but 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.
[80] Exhibit 32.
Dr Jobbins saw Mrs Kelk again in April 2012 and examined her larynx with a flexible nasopharyngoscope. In June 2012 he reported[81] the appearance of Mrs Kelk’s larynx was normal. He concluded that Mrs Kelk had a minor degree of supraglottic muscle dysphonia with a significant element, estimated at 90%, of non-organic overlay to her symptoms.
[81] Exhibit 33.
Eventually arrangements were made that enabled Dr Jobbins to observe the video record of Dr Hazelton's stroboscopy. He concluded that there was a[82],
… very, very minor reduction in [Mrs Kelk's] mucosal wave which is not enough to produce pathological symptoms.
[82] Transcript page 363, line 34 – 35.
Mrs Kelk’s submissions criticised the manner in which Dr Jobbins reached the conclusion expressed in his June 2012 report. It was said to have become apparent in the course of the hearing that his view had been significantly influenced by the documentation he had been given by Australia Post, by undocumented conversation with Ms Henderson, and by another undocumented conversation with an unidentified Australia Post manager. And it was said that he had apparently changed his opinion because he formed the view that Mrs Kelk was not taking as many calls as he had thought.
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 prior to Dr Jobbins giving evidence[83]. And Dr Jobbins explained the significance of the additional documentary material in the addendum to his report in this way,
On 21 May 2012, I was provided with further documentation regarding Ms 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 worksite.
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.
As Dr Jobbins said in his oral evidence[84], once he had looked at Mrs Kelk’s larynx and realised that it was essentially normal, he questioned the accuracy of the history she gave.
[83] Transcript page 371, lines 43 – 46.
[84] Transcript page 373, lines 19-20.
In light of Dr Jobbins' conclusions it is appropriate to note Dr Varghese’s opinion that[85],
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.
[85] Exhibit 31, page 20.
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.
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.
I am not satisfied that Mrs Kelk’s accepted injury has resulted in a permanent impairment. The decision to refuse her claim will be affirmed.
91.
92. I certify that the preceding 90 (ninety) paragraphs are a true copy of the reasons for the decision herein of Deputy President PE Hack SC
.........................[Sgd]...............................................
Associate
Dated 15 February 2013
Date(s) of Hearing: 17, 18, 19, 20 September and 25 October 2012
Counsel for the Applicant: Mr L Grey
Solicitors for the Applicant: Emanuel Solicitors
Counsel for the Respondent: Mr A Harding
Solicitors for the Respondent: Sparke Helmore
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