WORKERS’ COMPENSATION – legal test for aggravation – whether Tribunal erred in finding work-related aggravation of respondent’s hyperacusis in circumstances where it also found neither hyperacusis nor underlying hearing loss and tinnitus was work-caused – whether Tribunal failed to grapple with the applicant’s submission there was merely a temporary worsening of hyperacusis symptoms in the workplace not amounting to compensable aggravation – Australian Postal Corporation v Bessey [2001] FCA 266; 32 AAR 508 considered – no error of law – appeal dismissed
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:
COMCARE Applicant
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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AGLC
Comcare v Reardon [2015] FCA 1166
Case
[2015] FCA 1166
Decision Date
CaseChat Overview and Summary
Comcare, the appellant, brought an appeal against the decision of the Administrative Appeals Tribunal (the Tribunal) that Mrs Reardon's employment had aggravated her pre-existing condition of hyperacusis, which is a heightened sensitivity to everyday sound. The Tribunal found that Mrs Reardon's condition had been aggravated by her employment, despite also finding that her employment had not caused her hyperacusis, hearing loss, or tinnitus. The Tribunal concluded that the aggravation of her hyperacusis was a compensable injury under the Safety, Rehabilitation and Compensation Act 1988 (Cth). Comcare argued that the Tribunal had erred in finding that Mrs Reardon's employment had caused an aggravation of her hyperacusis, contending that the Tribunal had failed to adequately consider their submissions that the aggravation was merely a temporary worsening of her symptoms, not amounting to a compensable aggravation. The Tribunal had also, according to Comcare, erred in its consideration of the medical evidence and in its assessment of the temporal relationship between Mrs Reardon's symptoms and her employment.
The court found that the Tribunal had not erred in its findings or in its application of the law. The Tribunal had carefully considered the medical evidence and the other evidence before it, and had reached its own conclusions on the issues, as was its task. The Tribunal had correctly assessed the evidence and had not merely relied on a temporal coincidence between Mrs Reardon's employment and the worsening of her symptoms. The court found that the Tribunal had not erred in finding that Mrs Reardon's employment had caused an aggravation of her hyperacusis, and that this was a compensable injury.
The appeal was dismissed with costs.
The orders of the court were that the appeal be dismissed with costs.
Orders
Orders of the court
1. The appeal be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 (Cth).
Background
Background to the litigation
For the reasons set out below, Comcare’s appeal must be dismissed.BACKGROUND Mrs Reardon suffers from partial hearing loss, tinnitus and hyperacusis. The Tribunal found hyperacusis is a recognised medical condition characterised by a reduction in normal tolerance to everyday sound. On the evidence the medical experts agreed, and the Tribunal found, Mrs Reardon’s hyperacusis caused her to have headaches and pain. Mrs Reardon, who at the time had no legal representation, had contended before the Tribunal that each of these conditions had been caused by her employment in a call centre, in particular the headsets she used and the level of workplace noise including frequent “call bells”. Although the Tribunal did not accept that contention, it did accept that her hyperacusis had been aggravated by her employment to a significant degree. As the Tribunal noted in the introduction to its reasons, Mrs Reardon has been a full-time employee of the Commonwealth Department of Health and Human Services since 1988. Her duties from approximately January 2011 involved taking customer telephone calls as a Customer Service Officer in the Paid Parental Leave Team. The Tribunal’s factual findings on the sequence of events leading to Mrs Reardon’s review application were not contentious on the appeal, and were as follows:2.By early 2012, Mrs Reardon was experiencing problems with phone headsets she used to do her work. She developed pressure, discomfort and later pain in her head at work, which she initially attributed to the headsets and also to workplace noise.3.By early 2013 Mrs Reardon was having frequent problems with her headsets, pain in her head and headaches. She initially consulted with her GP on 14 January 2013 and later formally notified her employer by incident report. 4.On 13 May 2013 a claim for compensation was made to the Respondent. Compensation was claimed for injury identified as “Hyperacusis related to workplace noise exposure, with sensorineural hearing loss and tinnitus” (“the ailments”). The claim was refused on 22 July 2013. Subsequent reconsideration confirmed refusal of the claim.(Footnotes omitted.) On 25 November 2013, Mrs Reardon lodged an application for the Tribunal to review that decision. Comcare accepted before the Tribunal that the respondent Mrs Reardon suffered sensorineural hearing loss, tinnitus and hyperacusis, and that those conditions were each an “ailment suffered by an employee” for the purpose of s 5B(1)(a) of the SRC Act. However it disputed that Mrs Reardon’s employment had either contributed to or aggravated any of her ailments to a significant degree. THE TRIBUNAL PROCEEDINGS The Tribunal had before it evidence from a range of sources. Mrs Reardon and two of her supervisors Ms Linda Free and Ms Penny Johnstone gave evidence, as did Mr Nick Bell, the senior rehabilitation case manager within the Department. Each witness was cross-examined. The Tribunal accepted Mrs Reardon as an honest and credible witness. The Tribunal also received signed statements from six of Mrs Reardon’s co-workers regarding the call bells that were used. These co-workers did not attend to give evidence and Comcare did not seek to challenge the content of their statements by putting that material to Ms Free and Ms Johnstone. The Tribunal also had access to contemporaneous records prepared by the Department as well as medical expert evidence. The nature and effect of the expert evidence was in issue in the questions of law raised in the s 44 appeal.
Evidence
Evidence Before The Court
As a matter of logic, it would seem self-evident that where the fact-finder has concluded (as the Tribunal did) what was occurring at work for Mrs Reardon (both in terms of workplace noise and the nature of her duties) aggravated her hyperacusis, part of that consideration would involve examining the trajectory of Mrs Reardon’s symptoms through a working day, and outside work. This does not mean, contrary to Comcare’s submissions, that the condition itself is transitory, rather that its intensity varies depending on what Mrs Reardon is exposed to, which indeed mirrors the findings the Tribunal makes at [53], to which I turn below.Ground 4: whether the Tribunal made findings without evidence or inappropriate inferences The key factual findings of the Tribunal on why it accepted that Mrs Reardon’s hyperacusis was aggravated by her employment, and her workplace conditions, can be found at [53] of the Tribunal’s reasons, which I have extracted at [13] above. Comcare submits that these findings were either not supported by the evidence or involved inferences that were not reasonably open on the evidence. However, its submissions are then couched in the language of “it is incorrect …”, or it is “at least incomplete, to state” and what follows is, in my opinion, properly characterised as engagement with the Tribunal’s fact-finding at a merits level, seeking to persuade the Court why the Tribunal’s ultimate conclusions would have been different, if it had viewed the evidence through the lens Comcare submits was the better one. The respondent’s submissions answered these criticisms in the following way. In relation to [53(c)] of the Tribunal’s reasons, the respondent accurately pointed out that Mr Brennan did accept that workplace noises were capable of making the condition of hyperacusis worse (as the Tribunal found he did). The difference between Mr Brennan and Dr Sharman was the degree of impact that could be attributed to workplace noise. Mr Brennan put it at a much lesser degree. I return to this issue below. In relation to the next seven factual findings at [53] of the Tribunal’s reasons, and Comcare’s criticism of them, the respondent submits:The matters raised by the applicant in its submissions at paragraph 16(d) do not relate to the respondents “past history of noise exposure outside the workplace” and therefore the finding at 53(d) of the reasons is correct.At paragraph 16(e) of its submissions the applicant appears to concede that the Tribunal’s finding at 53(e) is correct. There was no diagnosis formal or otherwise of any condition that has caused the hyperacusis. At most Mr Brennan raised the possibility of an underlying condition such as endolymphatic hydrops. The absence of any diagnosed medical condition of the inner ear capable of explaining the condition is a fact which is capable of informing the Tribunal’s ultimate conclusion that the employment was a significant contributor to the aggravation of the hyperacusis.The applicant by its submissions at paragraph 16(f) again appears to concede that the Tribunal’s finding at paragraph 53(f) was correct. The applicant’s complaint appears to be with the ultimate conclusion reached by the Tribunal. In any event Mr Brennan did not give evidence that non-work related factors triggered Mrs Reardon’s symptoms. To the contrary his evidence was on the whole consistent with employment triggering an aggravation of the hyperacusis. The Tribunal’s findings at 53(g) of the reasons is not a finding in respect of the respondent but a general observation as to whether hyperacusis can be worsened by workplace noise. This general finding accords with the evidence of Mr Brennan. The applicant at paragraph 16(h) of its submissions appears to concede that the Tribunal’s finding at 53(h) is correct. The applicant’s complaint appears to be with the Tribunal’s ultimate finding that the employment was a significant contributor to the aggravation of the hyperacusis. Mr Brennan’s evidence as to the difficulties that the respondent experiences in everyday life relate to the time he saw her i.e. 15 May 2014 and when her hyperacusis was established. The applicant by its submissions at paragraph 16(i) appears to accept that the finding of the Tribunal at 53(i) is correct. The applicant’s complaint appears to be with the Tribunal’s conclusion that the employment was a significant contributor to the aggravation of the hyperacusis. The Tribunal did not merely rely upon a temporal coincidence in order to make that finding.Again the applicant by its submissions at paragraph 16(j) appears to accept that the Tribunal’s finding at 53(j) is correct. The respondent repeats paragraph 41.(Footnotes omitted.)
Decision
Reasons for decision
This ground of appeal must be rejected.Conclusion In my opinion, the Tribunal correctly understood its task in assessing the injuries for which Mrs Reardon claimed compensation. It carefully and independently assessed the medical evidence on both sides: for example, it did not accept Dr Sharman’s opinion that Mrs Reardon’s employment conditions had caused her hyperacusis. It said (at [45]):On the basis of the medical evidence, I cannot be satisfied that employment was a significant contributing factor to Mrs Reardon’s condition of hyperacusis. Dr Sharman attributed the condition to the workplace noise, but close scrutiny of his evidence does not convince me that such attribution is valid. He agreed that the known causes of it were hearing loss, head injury, whiplash, acoustic trauma, an adverse reaction to drugs, chronic ear infection. On the other hand, he agreed that in Mrs Reardon’s case the condition appeared to be of gradual onset and not directly attributed to one of the known causes. In expressing its disagreement with the opinion of Mr Brennan about the proportion of contribution that Mrs Reardon’s employment conditions played in aggravating her hyperacusis, the Tribunal engaged in an exercise of the same character as that it took at [45] in disagreeing with Dr Sharman’s opinion. It examined both medical opinions in the context of the other (non-medical) evidence before it (which it found persuasive) and reached its own conclusion, as was its task. The appeal should be dismissed, with costs.
Ratio Decidendi
Legal Principle Established
I do not accept Comcare’s submission that the Tribunal looked to nothing more than a temporal connection between the employment and the worsening of pain or other symptoms. My reasons for this conclusion are apparent from my conclusions on the other questions raised by Comcare, especially at [48]-[49], [62]-[78] and [81]-[83] below.Question of law 3: irrelevant considerations Comcare submits that the Tribunal took into account matters “relating to the onset of conditions” suffered by Mrs Reardon which were irrelevant to the question whether her employment contributed to an aggravation of her hyperacusis. Although its submissions are not entirely clear on this point, the consideration identified appears to be the onset of hearing loss, tinnitus and hyperacusis suffered by Mrs Reardon. Comcare contends the symptoms at onset were irrelevant to the question whether her employment aggravated the hyperacusis. Comcare contends that, on the evidence, the symptoms of Mrs Reardon’s hyperacusis did not continue indefinitely although her hearing loss and tinnitus may have done so. I confess to some difficulty in understanding this submission. Comcare’s submissions did not explain how the SRC Act forbade the Tribunal from considering a worker’s symptoms at onset of the condition in issue, nor did the submission explain why this was a “consideration” in the sense that term is used in the authorities. Generally, as Mason J said in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39-40, it is the statute to which one looks to determine which (if any) considerations are mandatory, and which are forbidden. The statute, whether expressly or by necessary implication, may locate some matters in one category or the other. See also Abebe v Commonwealth [1999] HCA 14; 197 CLR 510 at 579, per Gummow and Hayne JJ; Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194 at [19]; Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22; 309 ALR 29. Where the statutory power is relatively unconfined, the factors to which a decision-maker can have regard will be wide, limited only by the subject matter, scope and purpose of the relevant statutory provisions: see R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62; 144 CLR 45 at 49-50. It is to the statute one looks to determine whether a matter considered by a decision-maker is “definitely extraneous” to the objects the Parliament intended when it conferred the power: see Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; 74 CLR 492 at 505. It is apparent from the terms of s 14 of the SRC Act that the matter articulated by Comcare is not a “consideration” for the purposes of s 14 of the SRC Act, let alone one which the provisions make legally irrelevant in the sense of forbidden. The decision-making task in s 14 was described by the Full Court in Lees v Comcare [1999] FCA 753; 56 ALD 84 at [35]:This is not to say that a determination under s 14 is without real significance. Such a determination will involve findings on the following matters. First, that an appropriate notice of injury has been given to the relevant authority as required by s 53 of the Act; secondly, that a claim for compensation has been made as required by s 54 of the Act; thirdly, that the person who made the claim or on whose behalf the claim was made was an “employee” at the time of the alleged injury (ss 4 and 5); fourthly, that the employee suffered an injury (s 4); and finally, that the injury has resulted in death, incapacity for work or impairment.