LAMONT and TELSTRA CORPORATION LIMITED

[2011] AATA 850

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 850

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No     2009/2994

GENERAL ADMINISTRATIVE DIVISION		)   2011/2673
Re		JASON LAMONT

Applicant

And  TELSTRA CORPORATION LIMITED

Respondent

DECISION

Tribunal Senior Member Bernard J McCabe
Associate Professor J B Morley RFD, Member

Date30 November 2011

PlaceBrisbane

Decision The decisions under review are affirmed.

....................[sgd]..........................

Senior Member

CATCHWORDS

COMPENSATION ― acoustic shock syndrome ― psychiatric condition ― tinnitus ― loud noise during electrical storm ― whether the ‘Soundshield’ device malfunctioned ― selective disclosure of physical and mental health history ― reasonable administrative action ― submission of evidence after hearing ― decision affirmed.

Safety, Rehabilitation and Compensation Act 1988, s 5A, 14

REASONS FOR DECISION

30 November 2011	Senior Member Bernard J McCabe
Associate Professor J B Morley RFD, Member

1.Jason Lamont claims that he experiences a constellation of symptoms usually known as acoustic shock syndrome as a result of an incident in the workplace. Telstra, his employer, denies the incident occurred. It says the applicant’s symptoms are attributable to long-term psychiatric problems that have nothing to do with his employment. In the alternative, Telstra says that if the workplace did make a contribution to the onset of the applicant’s condition, that contribution does not give rise to liability because it qualifies as “reasonable administrative action” within the meaning of s 5A of the Safety, Rehabilitation and Compensation Act 1988.

2.The applicant brought a claim against Telstra under s 14 of the Act. There have actually been two claims: one in respect of the injury that flowed from the acoustic shock, and a second in respect of a psychiatric condition that is secondary to the acoustic shock. Telstra denies it is liable for any of the conditions. Mr Lamont has asked the Tribunal to reconsider the matter.

Mr Lamont’s story

3.We start with Mr Lamont’s account of what occurred. Most of that account is drawn from his oral testimony at the hearing and from the documents provided by his lawyers. We note Mr Lamont has also seen fit to approach the Tribunal in person with documents that he believes to be relevant to his claim. This occurred on several occasions, most recently in the days immediately before this decision was delivered. We brought Mr Lamont’s behaviour to his lawyers’ attention at the hearing but they were unaware of what he was doing. That is unsatisfactory. Mr Lamont is not obliged to instruct lawyers to appear on his behalf but if he does he should act through them. There is a risk that the hearing process will become chaotic if he attempts to deal unilaterally with the Tribunal in those circumstances.

4.We gave the parties leave to file submissions after the hearing was concluded but we have decided it is not appropriate to consider fresh evidence that Mr Lamont has sought to file. He has been given ample opportunity to present his case in an orderly way. He chose to do that through his legal representatives at the hearing. That hearing extended over several days. He has had his chance to be heard. There is no reason why he should be permitted to extend and complicate the proceedings by filing additional material that should have been presented at the hearing if it was relevant. If he had sought leave to file the additional material accompanied by an explanation of why it was not filed at the hearing and why the interests of justice suggested it should be admitted late, that would be one thing. But that did not occur. He chose instead to make ex parte approaches to the Tribunal. That is inappropriate.

5.

And so to Mr Lamont’s evidence. He began working for Telstra in Lismore in April 2007. He transferred to a call centre in Brisbane in November 2008. He was at work on the evening of 29 December 2008 when an electrical storm rolled in.

Mr Lamont said in his evidence that he could hear the thunder and see the flashes of lightning through the windows of the call centre. He explained under cross-examination that his work station was located about 15 metres from the floor-to-ceiling windows. He said he was worried about continuing to work on the phones while the lightning continued. He asked his supervisor about whether the call centre should suspend operations but he was told it was safe to continue. He recollected a different practice in Lismore where operations in the call centre were suspended when an electrical storm occurred.

6.

Operators in the Telstra call centre in Brisbane used a headset connected to the phone line through a computer. The headset incorporated a speaker that was placed over either ear. The applicant demonstrated how it was easy to change the headset from ear to ear; during the events in question, he was wearing it over his left ear. The headset was equipped with a Polaris “Soundshield” device.  We were told in evidence that the Soundshield was developed by Polaris, a private company, in conjunction with Telstra. The device was designed to prevent loud noises – from a lightning strike, for example – being transmitted through the headset to the listener. Nobody disputed that the transmission of sudden loud noises through a headset could damage the hearing of a listener. The chief executive officer of Polaris,

Mr Guest, gave evidence about how the device worked. He said the device was set so that any noise louder than 90 decibels would be cut off by sensors in the device. He said call centres that used the device could safely operate through lightning storms without any risk that their employees would be exposed to hearing damage occasioned by unexpected loud noises. 

7.Mr Guest was not technically qualified but he explained he had been intimately involved in the development of the Soundshield product. He said he was familiar with the challenge and worked closely with technical experts to develop an effective device that would protect the hearing of call centre workers. He said he was unaware of any reports that the devices made by his company had failed. Mr Blank referred to several reports – apparently in the media, or published by a union - that referred to incidents which may have involved a Soundshield device but Mr Guest was unable to shed any light of them, and nothing further was said.

8.We return to the evidence of Mr Lamont. Our account of what occurred on the night of 29 December is based on his evidence-in-chief. He said he was using a headset connected to a computer and the phone line through a Soundshield device. He was taking calls as usual.  At around 2000 hours, he said he heard a sudden loud noise and the lights in the call centre went out. He said in his evidence that the sound was like a shot-gun going off; in cross-examination, he described it as “an enormous crack of thunder”. He insisted the sound came through the headset into the speaker over his left ear: it was not simply the sound of a nearby lightning strike. He was talking to a customer at the time. He said the customer obviously heard the noise as well because he asked what had occurred. While the lights went out, the customer stayed on the line and the phone and computer kept operating. It seems the building’s independent power supply had come on line.

9.The call in which the noise was alleged to have occurred was not recorded.

10.The applicant said he immediately heard a whooshing sound in his left hear, and experienced a ringing sensation. He placed the customer on hold,  removed the headset and sat in shock for a few moments. He said he soon began to feel nauseous. He said he noticed a group of female colleagues nearby and they quickly decided to speak with Mr Saunders, the acting manager of the call centre. The call centre was closed down for about 30 minutes until the lightning receded. In the meantime, Mr Saunders and Mr Lamont completed an incident report. A copy of the report is included in exhibit one at pp 18-20. Mr Saunders then directed the workers to resume taking calls. Mr Lamont said he protested but Mr Saunders asked rhetorically: “What – are you a chicken?”, or words to that effect.

11.Mr Lamont said he logged back onto the phones around 2033 hours but could not continue work beyond 2049 hours. He said he felt like his ear was blocked and full of pressure. It felt like someone had stuck a screw-driver in his ear, he claimed. He was trembling and nauseous and his ears were ringing.

12.The applicant said he went home that night and slept poorly. He worked his regular shift on the next two days but experienced serious discomfort. He said in his evidence-in-chief that he heard ringing in his ears and had a constant headache. He used the headset so that the speaker was over his right ear. His left ear was sore, as was his neck. He was off work on 1-4 January. He reported for work on 5 January but did not last long on the phones. He said he was experiencing serious headaches. On or about 8 January, he said he experienced a further rush of pain and discomfort when he accidentally placed his headset over his left ear. He said he did so out of habit. The whooshing noise resumed and the ringing got worse. He said the ringing sensation has never abated.

13.

During this period, the applicant had several conversations with the call centre manager, Ms Read, about the way in which he was doing his work.

Mr Lamont had a relaxed style of speaking to customers. He readily slipped into the vernacular and was heard to refer to customers on the phone as “mate” and “digger”, and used expressions like “the duck’s guts” when praising a product. Mr Lamont acknowledged he used the language and said he was untroubled by the counselling. He also acknowledged there was some discussion about whether he had called colleagues from another part of the organisation “idiots” in front of a customer.

Mr Lamont did not deny using the language although he insisted the reference to “idiots” did not occur  in front of a customer. In any event, he said he willingly agreed to change his approach and mind his language. He denied experiencing any stress in relation to the counselling. He said he took the comments on board, completed some sort of action plan in consultation with Ms Read and moved on without rancour.

14.

The applicant said he struggled to continue working throughout this period but was unable to do so because of the ongoing problems – the headaches, the neck-pain, the ear ache and the other symptoms  associated with acoustic shock syndrome. He obtained a medical certificate from his general practitioner,

Dr Fordyce, on 13 January 2009. The certificate referred to a “left acoustic nerve injury” that was related to the events of 29 December. The applicant did not return to the workplace and accepted a redundancy arrangement in May 2009.

15.Mr Lamont said Telstra was supposed to organise for him to see an ear, nose and throat (ENT) surgeon after the incident in December. That did not occur. His general practitioner referred him to Dr Black, a consultant ENT surgeon, who examined Mr Lamont on the 13 and 19 January 2009. Dr Black said the applicant was exhibiting the classic symptoms associated with acoustic shock syndrome, including tinnitus. Importantly, Dr Black said his diagnosis was based on the applicant’s self-reporting. Although Tinnitus in particular is the product of an injury, the existence of the condition was difficult to verify. Dr Black and Dr Scoppa both opined that the balance of the symptoms associated with acoustic shock syndrome included a significant psychiatric component. 

16.The applicant says all of the problems associated with acoustic shock syndrome persist. At the hearing, he wore ear-plugs in his left ear. He explained he needed protection from sudden loud noises. He appeared to be in significant physical discomfort as he gave evidence over the course of the hearing. As things unfolded, he was in the witness box on and off throughout the hearing as other witnesses were interposed into the careful cross-examination that was conducted by Mr Jones on behalf of Telstra. We have made allowance for his discomfort when making an assessment of his credit.

17.In summary, Mr Lamont’s evidence in chief suggests he was in reasonable health prior to an incident which occurred on 29 December 2008 in the workplace. Thereafter, he says he developed the classic symptoms associated with acoustic shock syndrome, including (in due course) a psychiatric condition. While he acknowledged he had been seriously injured in a traffic accident a number of years before, he insisted he was in good shape immediately prior to the incident at the call centre and that any psychiatric condition he may have experienced in the past was in remission. He also says the workplace incident was the only source of his current complaint: the counselling and other events going on in his life were either of no moment, or did not occur.

Assessing Mr Lamont’s evidence

18.

Mr Lamont’s account of the incident on 29 December 2008 is not corroborated by any other witness. While it is accepted there was an electrical storm and some sort of event that interrupted the power supply and caused the centre to suspend operations, no other witnesses were produced who could confirm

Mr Lamont’s account of a loud noise. Mr Lamont did summons one witness – a Ms Brackman - whom he believed could confirm his account, but she told the lawyers for both parties that she was unable to assist the Tribunal. A statement from Sophie Richards, who was working in the call centre that night, says she did not hear any loud noises over the phone that evening.

19.The fact other witnesses did not report hearing the same noise as the applicant is not necessarily a problem for him in circumstances where he is arguing that he heard the noise through his headset, which could only have occurred if the Soundshield malfunctioned. (Mr Lamont insisted the sound he heard was not simply the sound of a thunder-clap emanating from a nearby lightning strike and reverberating throughout the call centre. Ms Richards’ evidence does not mention a loud thunderclap like that either.) If the Soundshield on other devices was working as intended, it is unsurprising that they would not have heard the loud noise Mr Lamont claims to have heard. The statement of Ms Richards and the incident report completed by Mr Saunders confirm that Mr Lamont’s behaviour at the time was consistent with an incident having occurred as he alleged, albeit that no one else  observed the incident.

20.

The limited evidence about the Soundshield device is not consistent with

Mr Lamont’s evidence. It was taken away after the incident and tested by the manufacturer. The testing officer’s report, which was provided to the Tribunal, confirms that the officer was unable to reproduce the fault. She was satisfied the device was in working order. We note the officer in question is not a qualified technician, but we understand she is experienced in working with these devices. She was not available to give evidence or be cross-examined by the respondent. Her boss, Mr Guest, was available. He confirmed his company’s findings that its device appeared to work according to its specifications. We were told the company’s personnel concluded the only circumstances in which the device could have produced an unexpected noise was in the event of a “brown-out” event, but that noise was neither loud nor obnoxious. Some attempt was made to reproduce the sound but we were not satisfied that the exercise was especially helpful given the absence of technical explanation or the different conditions that might be found in the hearing room.

21.We asked the parties whether it was possible to obtain some independent testing of the device to verify its performance. The device was available for examination but had only recently been produced. The applicant’s solicitors said they were given to understand the device was not available, so they had not organised independent tests.

22.It was unfortunate that the device was not subjected to more rigorous tests by independent experts. The fact the manufacturer could not reproduce the fault and concluded the device was operating normally following an inspection does not preclude the possibility of a fault. If there was a fault and a loud noise made its way into the headset as Mr Lamont described, the preponderance of the medical evidence suggests it is certainly possible that he developed tinnitus as he claims. The question is whether we should prefer Mr Lamont’s evidence that he did hear a sudden loud noise over the limited technical advice tendered on behalf of Telstra. Our assessment of Mr Lamont’s credit is therefore critical.

23.Mr Lamont was in the witness box for a long time, although his evidence was broken up as other witnesses were interposed. We have already noted he was obviously experiencing serious discomfort. He even turned up late on one day of the hearing so that the case had to be adjourned because he had experienced discomfort overnight that we infer was associated with the stress of giving evidence. We have taken all that into account in forming our impression of his performance in the witness box.

24.As it happens, we think Mr Lamont was a poor historian. We developed the impression of someone who had formed a view about what was wrong with him – acoustic shock syndrome – and proceeded to recount a narrative (to the respondent, his treating doctors and to the Tribunal) emphasising matters that were consistent with his belief and ignoring and downplaying things that were not congenial to his story.

25.The applicant was particularly unforthcoming about his medical history. He told the hearing that he was not regularly consuming painkillers prior to the incident in December 2008 except in connection with a recent wrist injury and a knee injury prior to 2006. But the applicant’s medical records show otherwise. In fact, he had been receiving regular prescriptions for painkilling medication throughout the period 2006-2008. Most of the prescriptions were provided by one doctor, but the applicant obtained scripts from several other medical practitioners as well. We note he did not report his prescription drug use to his own psychiatrist or to the various specialists who saw him for the purpose of preparing reports for the hearing. His medical records suggest he had a lengthy history of presenting for treatment for various aches and pains before the incident at Telstra in December 2008.

26.Mr Lamont was also unforthcoming about his mental health history. He acknowledged he had been treated for depression following a serious traffic accident in 1986 which caused health problems that were subsequently resolved by surgery. He also referred to treatment in 1997 following the death of several relatives in quick succession. He said those episodes of poor mental health were related to the circumstances in which he found himself at the time and were not evidence of a long-term pattern of mental illness. Once again, the medical records suggest otherwise.

27.We will not reproduce the detail of those reports here. Suffice to say they show the applicant was receiving intensive treatment (including medication and counselling) over long periods for depression and anxiety throughout the 1990s and 2000s. The applicant was actually in receipt of the disability support pension on account of his mental state between 1995 and 2005. He was able to work part time and claimed during cross-examination that he was substantially in remission by 1999 but the contemporaneous medical records suggest that was not so. We note, by way of example, a treating doctor’s report, provided to Centrelink in connection with the applicant’s disability support pension in 2000, which referred to recent and ongoing serious psychiatric problems: exhibit 16. Taken together, the medical records confirm Mr Lamont experienced significant psychiatric problems over a long period. He was also seeing a Salvation Army counsellor in 2009 whose records came to light just before the hearing. Those records confirm the applicant was a deeply troubled man with a great many issues in his background, including difficulties in relationships with at least one of his parents as a child, drug use and financial problems. Various other records also refer to his involvement in litigation over the traffic accident and when he was the victim of a fraud, and problems stemming from his marriage breakdown. We note Mr Lamont denied any of these issues were of particular significance when asked about them under cross-examination.  He insisted all of his problems could be traced back to Telstra.

28.Consistent with his belief that these other matters in his background were unimportant – and consistent with our observation that he was a man who recounted a narrative of events that conformed to his theory of what was wrong, rather than providing an unedited history of what occurred – the applicant did not give a full history to the specialist doctors who treated him or who examined him for the purposes of preparing reports. When asked in cross-examination why he did not offer a complete and frank history to the various medical practitioners, the applicant suggested he “didn’t want them to think I was mad”.

29.We note the applicant also spoke with medical practitioners in connection with a claim under an income protection policy in respect of a back and neck condition. The reports of Dr Albeitz prepared in connection with that claim suggest the applicant had emphasised pain caused by cervical and thoracic spondylosis: see exhibits 36 and 37. When asked about this failure to recount details of his supposed ear injury and the associated pain, Mr Lamont pointed out Dr Albeitz was a back specialist, not an ENT surgeon, and was therefore not concerned with problems that might be connected to his ears. In the same vein, he said he had not told his treating psychiatrist about his contemporaneous visits with the Salvation Army counsellor because the counsellor was being seen for spiritual advice. Mr Lamont thought that motivation meant there was no need to disclose the counselling session to his doctor even though the notes from those sessions plainly disclose the applicant and the counsellor were dealing with mental health issues that would have been of interest to the psychiatrist. These reports and Mr Lamont’s reaction to the questions about them tend to confirm our impression that the applicant was given to fashioning and even manipulating his evidence.

30.

With those observations in mind, we return to the question of whether we can be satisfied the applicant was exposed to damaging loud nose in his headset that led to the onset of some or all of the symptoms that are labelled acoustic shock syndrome. We note the applicant has some contemporaneous support for his claim: he did report an incident at the time. We also note the uncontradicted evidence of

Dr Black that the applicant complained of tinnitus and other symptoms in the aftermath of the incident which was consistent with having experienced a loud noise as he claimed. We are also troubled by the absence of independent testing of the Soundshield device, so  we cannot exclude the possibility of a malfunction.

31.Ultimately, though, we must rely on the account of Mr Lamont, and we are not satisfied he was a reliable witness. We accept an unexpected loud noise may have been transmitted through the headset which led to the onset of tinnitus and other symptoms because the Soundshield device may have failed. We accept the applicant may experience tinnitus, although that is difficult to verify: a diagnosis is ordinarily dependent on self-reporting, according to Drs Black and Scoppa. We note Dr Black in particular gave uncontradicted evidence that tinnitus is often caused by a loud, unexpected noise like the one alleged by the applicant but tinnitus may appear spontaneously, for no obvious reason. We know a storm was in progress that night, and that the lights went down at one point and operations were suspended. We also know the applicant made a complaint about a noise and filed an incident report. The manufacturer’s evidence does not exclude the possibility that a potentially damaging noise was transmitted, in our view. But saying something may have occurred is not the same thing as finding that it probably did occur.

32.Our doubts over the applicant’s evidence are such that we unable to be satisfied the incident in the call centre on 29 December 2008 occurred as Mr Lamont says, or at all. In the absence of that workplace incident, the applicant has not identified any other incident at work that might have contributed to the onset of tinnitus or the other symptoms for which he contends. The respondent suggested the counselling at the hands of his supervisor might have made a contribution to subsequent stress (albeit that liability was excluded on the basis the counselling was said to be reasonable administrative action), but the applicant gave evidence that the counselling had no impact on him. The medical evidence – much of which was not available before the hearing – suggests a number of other explanations for the applicant’s current state of health, however it might be described or diagnosed.

Conclusion

33.The reviewable decisions must be affirmed.

I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe and Associate Professor J B Morley RFD, Member

Signed: .....................[sgd]......................................................
  Associate

Dates of Hearing   11-14, 18, 25 October 2011
Date of Decision   30 November 2011
Counsel for the Applicant          Mr G Black
Solicitors for the Applicant         Slater & Gordon
Counsel for the Respondent     Mr D Jones
Solicitors for the Respondent    Sparke Helmore