Van Haltren and Telstra Corporation Ltd - [2001] AATA 743

DECISION AND REASONS FOR DECISION [2001] AATA 743

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W1999/236

GENERAL ADMINISTRATIVE DIVISION       )
           Re      GWENDOLINE VERNON VAN HALTREN
  Applicant

And TELSTRA CORPORATION LIMITED
Respondent
DECISION

Tribunal Associate Professor S D Hotop, Senior Member
Date 24 August 2001

PlacePerth

Decision The Tribunal sets aside the decision under review and, in substitution therefor, decides that: the respondent is liable under s14(1) of the Safety, Rehabilitation and Compensation Act 1988 ("the SRC Act") to pay compensation, in accordance with that Act, to the applicant in respect of chronic pain in her neck and right upper limb ("the physical injury") and in respect of depression ("the mental injury"); the respondent is liable to pay weekly incapacity payments to the applicant, in accordance with Division 3 of Part II of the SRC Act, with effect from and including 12 March 1997 on the basis of the findings set out in paragraph 143 of the Tribunal's Reasons for Decision herein; the respondent is liable under s24(1) of the SRC Act to pay compensation, in accordance with s24 and the Guide to the Assessment of the Degree of Permanent Impairment ("the approved Guide"), to the applicant for permanent impairment in respect of the physical injury and the mental injury on the basis of the findings set out in paragraphs 147, 151 and 153 of the Tribunal's Reasons for Decision herein; the respondent is liable under s27(1) of the SRC Act to pay compensation, in accordance with s27 and the approved Guide, to the applicant for non-economic loss in respect of the physical injury and the mental injury on the basis of the findings set out in paragraphs 147, 151, 153 and 158 of the Tribunal's Reasons for Decision herein; the respondent is liable under s16(1) of the SRC Act to pay compensation to the applicant, being the cost of all reasonable "medical treatment" (as defined in s4(1) of the SRC Act) obtained by the applicant in relation to the physical injury and the mental injury from 12 March 1997, subject to proof being provided to the reasonable satisfaction of the respondent that the cost of such medical treatment has been incurred by the applicant; the respondent is not liable under s16(6) of the SRC Act to pay compensation to the applicant in respect of the cost of journeys by taxi for the purpose of obtaining reasonable medical treatment for either the physical injury or the mental injury; the respondent is not liable under s29(1) of the SRC Act to pay compensation to the applicant for household services; and the respondent is not liable under s39(1) of the SRC Act to pay compensation to the applicant in respect of kitchen alterations in her place of residence. The Tribunal orders, pursuant to s67(8) of the SRC Act, that the respondent pay the costs of the applicant in these proceedings, such costs to be assessed in accordance with clause 6 of the Tribunal's General Practice Direction dated 18 May…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] AATA 743
Decision Date: 24 August 2001

CaseChat Overview and Summary

The case between Van Haltren and Telstra Corporation Ltd was heard by the Administrative Appeals Tribunal. Van Haltren, who worked as a telephonist for Telstra from 1973 to 1996, suffered injuries to her right shoulder in 1985 and 1987, for which Telstra accepted liability and paid compensation. However, after a recurrence of injuries to her neck and right shoulder in 1990, Telstra ceased compensation payments from May 1, 1996. Van Haltren sought a review of this decision by the Tribunal. An agreement was reached between the parties, and the Tribunal ruled that Telstra was liable to pay compensation to Van Haltren for the period from May 1, 1996, to March 11, 1997. In December 1997, Van Haltren made a fresh claim for compensation for her neck and right shoulder injury and secondary depression. The primary legal issues that the Tribunal had to decide were whether Van Haltren was precluded from making a fresh claim for compensation due to the prior agreement and decision by the Tribunal under section 42C of the Administrative Appeals Tribunal Act 1975, and if Telstra was liable to pay compensation for various aspects of her claim, including incapacity, permanent impairment, non-economic loss, household assistance, modifications to her kitchen, and medical, pharmaceutical, and travel expenses.

The Tribunal found that the agreement and prior decision did not preclude Van Haltren from making a fresh claim for compensation. Regarding Telstra's liability, the Tribunal concluded that Telstra was liable to pay compensation for Van Haltren's neck and right shoulder condition and depression. However, Telstra was not liable to pay weekly incapacity payments, compensation for permanent impairment, non-economic loss, or for household services. The Tribunal also found that Telstra was liable to pay compensation for Van Haltren's medical, pharmaceutical, and travel expenses, with the exception of the cost of alterations to her kitchen, which was not deemed reasonably required due to her upper limb impairment. The Tribunal further determined that Telstra was liable to pay compensation for the cost of alterations to Van Haltren's place of residence only if it could be proven that such alterations were reasonably required due to her upper limb impairment.

In summary, the Tribunal ruled in favor of Van Haltren in several aspects of her claim but found Telstra not liable for certain compensations, including permanent impairment, non-economic loss, and household services. The Tribunal ordered Telstra to pay Van Haltren's costs of the proceedings, as assessed according to the Tribunal's General Practice Direction.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

At the hearing before the Tribunal the applicant was represented by Ms C Crawford of counsel, and the respondent was represented by Mr J Lenczner of counsel. The Tribunal had before it the statement and documents lodged by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act"), comprising documents T1-T35 (Volume 1, pp 1-128), T36 (Volume 2, pp 1-152), T37 (Volume 3, pp 153-295), and T38 (Volume 4, pp 296-537)("the T documents"). The Tribunal also had before it various documentary exhibits tendered by the applicant (A1-A29) and by the respondent (R1-R16). Oral evidence was given by the applicant and by the following witnesses: Ms L Coxon, Clinical Psychologist, Ms T Dival, Occupational Therapist, Dr A Harper, Occupational Physician (who were called by the applicant), Mr R McCormack, Barrister, Ms R Keep, Mr A Skirving, Orthopaedic Surgeon, Dr Z Mustac, Consultant Psychiatrist, and Dr P Hollingworth, Associate Professor of Occupational Medicine (who were called by the respondent).The Factual and Medical Background The factual and medical background, as found by the Tribunal on the basis of the T documents, is as follows. The applicant, who was born on 4 July 1940, commenced employment with the Postmaster-General's Department (a predecessor of the respondent) in March 1973 as a telephonist. On 18 December 1985 the applicant claimed compensation in respect of an injury described as "RSI" and said to have occurred on 11 December 1985. A "First Medical Certificate", dated 19 December 1985, by Dr B Hogan stated a provisional diagnosis of "RSI". On 11 April 1986 a delegate of the Commissioner for Employees' Compensation made a determination that the Australian Telecommunications Commission (a predecessor of the respondent) was liable under the Compensation (Commonwealth Government Employees) Act 1971 ("the 1971 Act") to pay compensation to the applicant in respect of "repetitive strain injury" contracted by her on 11 December 1985. On 26 October 1987 the applicant claimed compensation in respect of an injury described as "pain right shoulder" and said to have occurred on 13 September 1987. A "First Medical Certificate", dated 14 September 1987, by Dr B Hogan stated a provisional diagnosis of "muscle inflammation affecting right shoulder and associated muscles" and certified that the applicant would be unfit for work for 6 weeks. Progress medical certificates were subsequently issued by Dr Hogan stating that the applicant was also suffering from "secondary depression" and certifying her unfitness for work until 19 January 1988. On 18 January 1988, Dr Hogan certified that the applicant, who was suffering from "work induced inflammation of muscles of R shoulder with secondary depression", had now completely recovered. Dr Hogan noted, however, that if the applicant "works on more than one board at times where she has to propel herself around on her stool recurrence is quite likely". On 19 January 1988 a Commonwealth Medical Officer reported that the applicant had been suffering from pain in the right shoulder, and reactive depression, but that she was now fit to resume employment in her present position.

Evidence

Evidence Before The Court

On 20 July 1999 the applicant, through her solicitors, lodged with the Tribunal an application for review of the reviewable decision of 8 June 1999.The Applicant's Evidence A written statement of the applicant, filed with the Tribunal on 8 August 2000, was tendered in evidence (Exhibit A1). The applicant confirmed that that statement had been made by her for the purpose of these proceedings. The contents of that statement are as follows:"…3 I commenced employment with the Post Masters General (sic) Department on or about March 17, 1973 as a telephonist at the National Exchange in Forrest Place Perth, this being a cords and plugs exchange.4About 18 months after that I moved to the international exchange which involved a move from the second floor to the sixth floor within the same building and this exchange comprised of (sic) a press button board and also required manual writing of tickets through carbonised paper.5This continued until the new exchange was opened in Wellington Street Perth in 1980.6This exchange was a computerised exchange which involved keyboard operation.7From 1980 to my retirement in 1994 I was engaged as a telephonist for Telstra.8I operated keyboards throughout that time in my role as a telephonist including motions of stretching and keying in and at times holding hands and arms in static positions. I will call that keyboard duties. These duties were on 10C, Leopard, pager, ANR Routing, Dial-it-Service, and DAS/C.9Between 1986/1987 and 1992, I was also engaged in pushing and pulling chairs on castors between operating boards (operating board duties). These duties were performed on 10C, pager (for a while) ANR and Routing.10On day shift, the system involved an operator working at each keyboard. On night shift, there were eight boards. Often there were only four operators. Three would be on 10C and one on ANR.11 The chairs at the other boards we always moved back.12It was not practical to unplug, stand up, walk across, and sit down, then plug in again. The demand for efficient service required us to simply push across our chair on castors.13The work that I had to do included using my hands and arms over periods of seven hours and twenty minutes and eight hours and forty minutes for Saturday to Sunday shift.14I worked on nightshift from about 1985/1986 through to 1993 although I did have some periods off work with my condition.15We were given formal breaks during the shift but sometimes we were unable to take those breaks because of the volume of work and shortages of staff.16We were often one person short and this would occur specially when a person would ring in to say that they were sick at the last minute.17 We also at times had staff and one in particular who did very little if any work.18 The duties often involved continuous repetitive actions of my arms and hands.19On 10C it was one big board but there were three circuits with one keyboard but there were other keys that had to be pressed from time to time over on my left and my right and above as well.20The only work we had was answering calls and so to that extent there was no variation of task requirements for the duration of the shift.21There were slack times say when there were public holidays or long weekends. However there were more highs than lows and in most shifts there was little in the way of slack.22When we had five staff on it used to be good, as there was some capacity for each of us to take a break. However often we had only three or four on at a time.23Often there would be periods of extraordinary pressure throughout the shift, which included times when four to eight thousand sailors may arrive in port or during times of major sporting events.24There was no way I was able to take a rest whenever I needed to. This was the same for all of the staff.25ANR position was manned by one operator only on night shift. The operator stayed on this position for one hour and 40 minutes at a time before they were relieved.26In 1992, due to my condition worsening I requested that the time cards be altered so as to ensure that it was only required that the operator would work for 60 minutes in accordance with the rules that had been agreed between Telstra and the union.27Supervisor Keith Rozario was the mentor of my group and it was to him that I made my request.28He approached the manager and permission was granted to alter the time each operator spent on ANR to 60 minutes instead of one hour 40 minutes.29Movement of chairs was not involved on DAS/C and Leopard although a lot of stretching had to be done to reach the 000 console to answer calls.30Some of the men were not nearly as conscientious and would take their breaks regularly no matter what.31 Supervisory staff frequently just ignored things and did not pull their weight.32Some supervisory staff who were not familiar with the working of 10c boards and the night shift did not realise the slackness of certain staff members which in turn placed a heavier load on other staff.33We did have a meal break but the extent of that depended on how much call traffic there was and how many staff we had at the time.34We often worked seven days straight then three days off. Or six nights on and two nights off. Although at times we would have seven nights on and then five nights off.35Over period from 1987 on, one of my supervisors Ms Rosalie Keep made sure I did not have to push my chair from board to board.36However other supervisors did not make any effort to change my work situation and I found myself required to push myself from board to board because otherwise callers would have been let down.37If I did leave a call on another board and I was available there would generally be a call from a supervisor to get on and answer the call. I am not saying that they would use my name but they would simply call out 'Somebody take that call!'.

Decision

Reasons for decision

Having regard to the whole of the evidence before it, the Tribunal is not satisfied that, in the circumstances of the applicant's household since 1992, the abovementioned kitchen alterations were "reasonably required" by her by reason of her upper limb impairment. At best, the evidence supports the proposition that those alterations were beneficial or convenient for the applicant but that is insufficient for the purposes of s39(1) of the SRC Act. The Tribunal concludes, therefore, that the respondent is not liable under s39(1) of the SRC Act to pay compensation to the applicant in respect of the kitchen alterations in her place of residence carried out in March 1993.Decision and Order For the above reasons the Tribunal sets aside the decision under review and, in substitution therefor, decides that: The Tribunal orders, pursuant to s67(8) of the SRC Act, that the respondent pay the costs of the applicant in these proceedings, such costs to be assessed in accordance with clause 6 of the Tribunal's General Practice Direction dated 18 May 1998.

Ratio Decidendi

Legal Principle Established

The Tribunal concludes that the respondent is liable under s16(1) of the SRC Act to pay compensation to the applicant, being the cost of all reasonable "medical treatment" (as defined in s4(1) of the SRC Act) obtained by the applicant in relation to each of her relevant neck and right upper limb injury or her relevant mental injury (namely, depression) from 12 March 1997, subject to proof being provided to the reasonable satisfaction of the respondent that the cost of such medical treatment has been incurred by the applicant.Travel Expenses – Consideration and Finding The applicant has claimed, pursuant to subss (6) and (7) of s16 of the SRC Act, her expenses of travel by taxi for the purpose of obtaining reasonable medical treatment in respect of her abovementioned compensable injuries. Subsection (6) of s16 of the SRC Act relevantly requires that the expenditure in making a necessary journey for the purpose of obtaining such medical treatment have been "reasonably" incurred by the applicant, and subs (7) requires that the "reasonable length" of such a necessary journey (including the return journey) exceeded 50 kilometres, or, in the case of a journey by "public transport or ambulance services", the relevant injury reasonably required the use of such transport or services regardless of the distance involved. In the present case, it appears that the reasonable length of any relevant journey made by the applicant was less than 50 kilometres. The question then arises, for the purposes of s16(7)(b) of the SRC Act, whether a taxi falls within the expression "public transport" and, if so, whether the applicant's relevant injury reasonably required that the relevant journey be made by taxi. As regards the former issue, it was decided by the Tribunal in Re Elmazny and Australian Postal Corporation (Decision No 10524, 9 November 1995) that a taxi does not fall within the expression "public transport" (as defined in The New Shorter Oxford English Dictionary, namely, "a system of buses, trains, etc, charging set fares and running on fixed routes") and, therefore, the "use of a taxi does not fall within section 16 of the Act" (at para 20). The Tribunal notes, however, that in The Macquarie Dictionary the noun "transport" is defined as (inter alia):"a system of conveying passengers or freight: public transport". The question then arises whether the applicant's injury reasonably required (or requires) the use by her of a taxi in order to make "a necessary journey for the purpose of obtaining medical treatment". In the Tribunal's opinion the evidence before it on that issue is inconclusive and is not sufficient to satisfy the Tribunal that the use by the applicant of taxis for the purpose of making such journeys was (or is) reasonably required in the circumstances. In the first place, the medical evidence tendered by the applicant on that issue is itself not entirely consistent. Dr Hogan (report of 9 December 1997) asserted that the applicant required taxi transport to his surgery and to the "consulting rooms of her psychologist as she was unfit to travel long distances when not serviced by a direct bus route." Ms Dival (report of 20 July 1999 and oral evidence) recommended against bus travel (because of the nature of the side) or walking long distances. Dr Edelman (report of 15 September 2000), however, stated:"I cannot see why she would not be able to walk reasonable distances or travel in a bus."