188 Chapter 7.4 suggests that if an employee is suffering from impairment in more than one of these categories, each area of impairment is to be assessed and the highest value of impairment selected as the "WPI" [impairment] rating (p 61). Section 24(5) of the SRC Act requires a determination to be made, under the provisions of the approved Guide, of the degree of permanent impairment of the employee resulting from an injury, which is to be expressed as a percentage (s 24(6)) and, by s 24(7), if the determined degree of permanent impairment is less than 10%, "an amount of compensation is not payable to the employee" under s 24 of the SRC Act.
189 Mrs Kelk claimed compensation under s 14 of the SRC Act in respect of a contended psychological condition on the footing that she had suffered a physical or mental ailment within the definition of a disease falling within the definition of an injury. The Tribunal concluded, on the facts, that it could not be satisfied that Mrs Kelk's psychological condition was contributed to, to a significant degree, by the employee's employment by Australia Post having regard to the s 5B(2) factors. The Tribunal did not conclude, and nor did Australia Post contend, that Mrs Kelk's contended condition was excluded from the definition of an injury because the disease, injury or aggravation fell within the exclusionary limb of the definition in s 5A(1) of the SRC Act, that is, "[injury] does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment".
190 Footnote 19 to para 22 of the Tribunal's reasons makes that matter plain. The Tribunal's finding was a threshold matter on the facts in that it concluded that it could not be satisfied that the claimed psychological condition was contributed to, to a significant degree, by Mrs Kelk's employment by Australia Post. That conclusion was plainly open to the Tribunal on the facts and is supported by a rational process of reasoning.
191 Mrs Kelk contends that the Tribunal, in reaching that conclusion, failed to properly take into account and consider a substantial body of medical evidence which Mrs Kelk contends establishes a causal link between her employment with Australia Post and the psychological condition reflected in the medical evidence. Nevertheless, the respondent correctly contends that the conclusion reached by the Tribunal in weighing and assessing Mrs Kelk's evidence and the medical evidence does not constitute an error of law on the part of the Tribunal. A Court exercising original jurisdiction in a controversy of fact of the kind before the Tribunal may have reached a different conclusion (or not). The point is that the Tribunal took into account the medical evidence in the context of the evidence of Mrs Kelk and the matrix of fact generally in reaching a deliberative conclusion on this question on the merits.
192 It cannot properly be said that there was no evidence to support the conclusion reached by the Tribunal. Nor can it properly be said that the decision reflects error of law as earlier described. Nor is the decision so unreasonable that no decision-maker, acting reasonably, could reach it having regard to the discussion of that notion reflected earlier in these reasons.
193 On this issue, it cannot be said that the Tribunal failed to take into account the evidence of the witnesses. Throughout the Tribunal's reasons it directs analysis to the evidence of Dr Bocquee and, in particular, the evidence and medical notes of Mrs Kelk's General Practitioner, Dr Hew. As the review of the Tribunal's reasoning set out in these reasons reveals, the Tribunal considered the reports of Professor Champion and Dr Le Leu. The Tribunal also considered the reports of Dr Westmore and Dr Varghese and then reached a deliberative assessment of the weight to be attributed to the various reports. The Tribunal did not fall into error of law in reaching its conclusions about these matters. The conclusion was plainly open to the Tribunal.
194 In large part, Mrs Kelk's written submissions and her oral submissions take issue with the Tribunal's treatment and assessment of the medical reports and the totality of the medical evidence. In particular, Mrs Kelk contends that the Tribunal failed to recognise the gravity of the evidence of Dr Hew who, Mrs Kelk says, gave clear evidence of Mrs Kelk's condition and its relationship with Mrs Kelk's employment circumstances and tasks. However, two things need to be noted.
195 First, it is clear that the Tribunal had regard to the evidence of Dr Hew and particularly Dr Hew's clinical notes. The evidence led by Mrs Kelk before the Tribunal in support of her claim of a psychological condition relevantly contributed to by her employment circumstances, was taken into account and weighed by the Tribunal.
196 Second, the analysis of that evidence reflects a deliberative analysis leading to a conclusion supported by the analysis. As earlier mentioned, it may be, that different conclusions were open or that a Court or other Tribunal charged with a review function might have reached a different conclusion. By making this observation I do not mean to suggest that the contentious factual questions alive before the Tribunal, if alive in another forum, would necessarily (or otherwise) have been decided differently. The short point is that the conclusion reached by the Tribunal was open to it and the process of reasoning does not reflect an error of law in the sense earlier described.
197 A very similar position prevails in relation to the assessment of the evidence in relation to Mrs Kelk's claims of an injury concerning her left and right upper limbs. A large part of the submissions of Mrs Kelk are directed to demonstrating that the Tribunal failed to properly analyse the medical evidence and, in truth, reached a conclusion unsupported by the medical evidence. If the Tribunal had reached a conclusion which was simply not open on the medical evidence either because the medical evidence did not reflect the position attributed to it by the Tribunal or because the Tribunal chose to draw inferences from the medical evidence not open on findings of primary fact, that would be one thing. However, the Tribunal extensively evaluated, in the context of the particular claims, the body of medical evidence before it and reached conclusions open to it.
198 Again, the totality of the reasons reflect that the Tribunal gave great consideration to the evidence of Dr Hew, Dr Le Leu and Professor Champion. Aspects of the reports and notes of those authors were considered under each claim and each conditional heading. However, it is clear that the Tribunal took all of the evidence into account in reaching its particular conclusions. In particular, the Tribunal examined in detail the professional medical opinion of Professor Champion and evaluated that opinion closely in reaching its conclusion. It cannot be said that the Tribunal failed to take Professor Champion's evidence into account.
199 Although Mrs Kelk is strongly persuaded to the position that the Tribunal failed to grasp the gravity and significance of the evidence led on her behalf in support of her claims in relation to this condition, the reasoning of the Tribunal makes plain that there was evidence to support the conclusion reached and those conclusions reflect a rational analytical process of reasoning. Other decision-makers confronted with the same controversy might reach a different view (or not) but the conclusions reached were plainly open to the Tribunal. The decision that the Tribunal could not be satisfied that Mrs Kelk is suffering from an injury to her hands, arms and shoulders does not reflect an error of law in the sense earlier described in these reasons.
200 Mrs Kelk contends that the Tribunal's conclusions in relation to her claims for incapacity payments in respect of her voice condition (Claim 2011/1494 in the period July 2010 to October 2010; and Claim 2011/1499 for the period 11 March 2011 to 11 April 2011) reflect an error of law on the footing that the Tribunal failed to take into account her evidence of when her voice injury commenced (that is, by late April or early May 2010) as reflected in the incident report she completed on 29 November 2010, and secondly, the Tribunal failed to have regard to the medical evidence relied upon by Mrs Kelk.
201 As to the claim for incapacity payments for the period July 2010 to October 2010 (Claim 2011/1494), the Tribunal's reasoning, as described in these reasons, makes plain that the Tribunal understood and took into account the fact that Mrs Kelk had nominated 3 May 2010 as the date on which her voice injury began or occurred and that this date preceded the commencement of the claimed period of incapacity. The Tribunal did not overlook this factual matter and expressly had regard to Mrs Kelk's evidence about it at para 65 as earlier noted in these reasons. The Tribunal had regard to Mrs Kelk's evidence about her lengthy email to Dr Hew. The process of reasoning adopted by the Tribunal is described fully in these reasons. Ultimately, the Tribunal concluded that there was no evidence, which it could accept, that demonstrated that Mrs Kelk was suffering from any difficulties with her voice in the period July 2010 to October 2010 and therefore affirmed the decision under review. The particular criticism of the Tribunal's decision made by Mrs Kelk is that it failed to appreciate her evidence that she had asserted on 29 November 2010 that the voice injury had occurred in either late April 2010 or early May 2010. However, as mentioned earlier, the Tribunal's reasons make plain that it was astute to and took that fact into account. The Tribunal gave reasons for rejecting Mrs Kelk's evidence, as described earlier in these reasons, and that conclusion was both open to the Tribunal on the evidence and supported by a rational process of reasoning. The conclusions of the Tribunal in relation to this claim were plainly open to it and do not reflect error of law.
202 By Claim 2011/1499, Mrs Kelk made a claim for incapacity payments for the period 11 March 2011 to 11 April 2011 in relation to her accepted voice condition. In reviewing the reconsideration decision of Australia Post, the Tribunal undertook the analysis of the evidence reflected at [124] to [139] of these reasons. In undertaking that analysis, the Tribunal had regard to the evidence of Mrs Kelk and the medical evidence of Dr Jobbins. The Tribunal also considered the evidence of Dr Le Leu and the notes and observations of Dr Hew. Mrs Kelk contends that the Tribunal failed to have regard to the report of Dr Broadhurst dated 16 April 2012 in reaching its decision in relation to the voice condition claim. The Tribunal in examining the permanent impairment claim arising out of her vocal injury examines the evidence of Dr Broadhurst. The Tribunal examines the opinion of Dr Broadhurst arising out of his examination of Mrs Kelk as early as May 2011. The Tribunal's reasoning in that regard is examined extensively earlier in these reasons. It is not correct to say that the Tribunal did not take Dr Broadhurst's report of 16 April 2012 into account in forming its views. At para 77 of the reasons, the Tribunal expressly refers to aspects of the opinion of Dr Broadhurst. In any event, at para 77 the Tribunal found that there was "simply no reliable evidence" that Mrs Kelk was incapacitated for work in the period March 2011 to April 2011 as a result of her voice condition.
203 That conclusion was open to the Tribunal and is supported by a process of reasoning.
204 Mrs Kelk contends that the Tribunal's decision in relation to the review of the reconsideration decision concerning her permanent impairment claim reflects error of law on the footing that the evidence of Dr Broadhurst concerning the table in Ch 7.4 of the Guide was not taken into account. However, at paras 80 and 81 of the Tribunal's reasons, the evidence of Dr Broadhurst is discussed by the Tribunal. There is simply no basis for the contention that the Tribunal failed to have regard to Dr Broadhurst's evidence.
205 It plainly did so.
206 Mrs Kelk also contends that the Tribunal failed to have regard to the evidence of Ms McDowall, a Psychologist, although no particular detail is given of the evidence of Ms McDowall which the Tribunal was required to consider but failed to do so. More particularly, Mrs Kelk did not call evidence from Ms McDowall and counsel for Mrs Kelk did not rely upon Mrs McDowall's letter within the T documents. No emphasis was placed upon it at all. In any event, the Tribunal placed weight on the psychiatric evidence.
207 Mrs Kelk both in her oral and written submissions and in the way in which she has framed the grounds relied upon, contends that the Tribunal failed to have regard to the evidence of Ms Wendy McCormick given at the Tribunal hearing, on the question of Mrs Kelk's creditworthiness. It is correct to say that the Tribunal does not embark upon a consideration of the evidence of Ms McCormick in conducting a reasoned analysis of why it was unable to accept the evidence of Mrs Kelk. However, it is correct to say, as the respondent contends, that the failure of the Tribunal to conduct a deconstructed analysis of all of the evidence touching upon a particular matter in issue does not mean that the Tribunal has not considered the particular evidence.
208 Clearly enough, as Mason J observed in Peko-Wallsend Ltd, if the Tribunal has failed to give adequate weight to a relevant factor of "great importance" or has given excessive weight to a relevant factor of "no great importance", the Court might find that the Tribunal has fallen into error of law. There are two things to observe about Ms McCormick's evidence.
209 First, a proper reading of the Tribunal's reasons does not lead to the conclusion that the Tribunal failed to have regard to Mrs McCormick's evidence.
210 Second, it is correct to say that Ms McCormick's evidence was not directly relevant to the factors the Tribunal emphasised in reaching an adverse conclusion about Mrs Kelk's evidence. Ms McCormick was not able to give evidence, for example, in support of Mrs Kelk's contentions about the 95% schedule adherence KPI. The Tribunal extensively examined the evidence of Mrs Kelk and reached emphatic findings about the creditworthiness of her evidence. The Tribunal also recognised the seriousness of making such findings and did not reach the findings lightly. I have examined in these reasons the foundation upon which those findings were reached. The Tribunal expressly said that it relied upon all of the examples identified by the respondent in its submissions before the Tribunal but proceeded to exemplify its concern about the reliability of Mrs Kelk's evidence by reference to particular matters. Ms McCormick's evidence was not directly relevant to those factors.
211 The Tribunal did not fall into error of law by failing to specifically address Ms McCormick's evidence in its reasons on the question of Mrs Kelk's creditworthiness.
212 As mentioned earlier, aspects of Mrs Kelk's submissions seek to address an absence of evidence from the respondent before the Tribunal about whether the KPIs adopted by Australia Post represented "reasonable administrative action taken in a reasonable manner in respect of the employee's employment". However, the respondent did not contend that an answer to Mrs Kelk's claim was that her contended "injury" fell within the exclusionary limb of the definition. The contention, on the facts, related to the threshold question and the Tribunal did not reach a decision to affirm the reconsideration decisions on the ground that the exclusion was satisfied.
213 The Tribunal reached its finding, as to conclusions on matters of primary fact, on the footing that there was no contribution to Mrs Kelk's psychological condition, by a significant degree, of Mrs Kelk's employment by Australia Post.
214 Paragraph 6 of Mrs Kelk's written submissions in this Court are also directed to the issue of whether administrative action was reasonable. In that paragraph, and in paras 7, 8, 9, 10 and 11, Mrs Kelk is seeking to re-agitate factual questions which were the subject of findings by the Tribunal which were open to it. In seeking to re-agitate these matters, Mrs Kelk is inviting the Court to undertake a review of the deliberative merits of the Tribunal's fact-finding, which is not the proper role of the Court in examining a contended question of law.
215 At para 12 of her submissions, Mrs Kelk contends that the Tribunal failed to consider that the applicant had, over a 10 year period, undertaken considerable repetitive keyboard work for many hours each working day and that these tasks were capable of causing overuse injuries. Mrs Kelk again refers to the evidence of Dr Hew on this topic and the evidence of Professor Champion. However, it is plain from the Tribunal's reasons that it took these factual matters of long term repetitive keyboard tasks into account in evaluating Mrs Kelk's evidence. The Tribunal also took into account the evidence of Dr Hew and Professor Champion.
216 In many respects, the proposition is not simply that the Tribunal failed to have regard to relevant and important evidence (as, in this example, the Tribunal actually had regard to the factual matter in issue) but that Mrs Kelk believes that a different conclusion ought to have been reached by the Tribunal. At para 13, Mrs Kelk says that the discrepancy in the schedule adherence KPI figures of 88% and 95% was an irrelevant consideration. However, the Tribunal had regard to Mrs Kelk's evidence about this matter (as one example) in determining whether it could accept Mrs Kelk's evidence. The Tribunal rejected Mrs Kelk's evidence after carefully evaluating it, and the Tribunal's conclusions in that regard were plainly open to it.
217 In the course of expressing its findings about Mrs Kelk's creditworthiness, the Tribunal observed that it took account of and made allowances for the fact that Mrs Kelk suffers from a major depressive disorder. This represented a mitigating or qualifying consideration in the Tribunal's assessment of whether to accept or reject Mrs Kelk's version of the facts on many fronts. This was a circumstance the Tribunal was entitled to take into account in reaching its finding.
218 In any event, the Tribunal's observation about this matter reflects a balancing factor which might have caused the Tribunal to weigh the balance in favour of Mrs Kelk.
219 This observation by the Tribunal was not a prejudicial one.
220 Finally, Mrs Kelk addresses submissions on the question of "reasonableness".
221 She does so in the context of making observations about the Tribunal's concern that although Mrs Kelk had said she had made a written complaint in response to threats made to her by Australia Post personnel, no document or record of any written complaint by her was produced in evidence. The Tribunal, as mentioned earlier, went on to observe that it was inconceivable that Mrs Kelk would not have documented these threats at the time (especially as a trade union delegate) had they been made as she contended. The Tribunal ultimately concluded that Mrs Kelk's evidence of having made a written complaint was "simply not true" and was a "complete concoction".
222 Mrs Kelk says that at no time was she asked to produce such a document in evidence. Nevertheless, it is clear from the material before the Tribunal that Australia Post's position was that Mrs Kelk was not threatened in the way alleged and Mrs Solomon gave evidence to that effect. The Tribunal was entitled to attribute weight to Mrs Kelk's failure to produce the contended written complaint as one aspect of the factors going to the question of whether the Tribunal could accept Mrs Kelk's evidence.
223 The rejection of Mrs Kelk's evidence was based on all of the considerations earlier described in these reasons.
224 The conclusions on that matter were open to the Tribunal.
225 Having regard to all of these matters it follows that Mrs Kelk's application must be dismissed with an order that she pay the costs of the respondent of and incidental to the proceeding.
I certify that the preceding two hundred and twenty-five (225) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.