Mirabello and Comcare

[2008] AATA 1111

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1111

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/1146

GENERAL ADMINISTRATIVE DIVISION		)
Re		PAUL MIRABELLO

Applicant

And COMCARE

Respondent

DECISION

Tribunal Ms N. Bell, Senior Member
Dr I. Alexander, Member

Date 12 December 2008

Place Sydney

Decision   The decision under review is affirmed

...................SGD...........................

Ms N Bell, Presiding Member   

CATCHWORDS

COMPENSATION – Acoustic injury – Rehabilitation program – Reasonable nature of Program – Refusal to comply with a return to work plan – Failed to provide a reasonable excuse - Decision under review is affirmed.

Safety, Rehabilitation and Compensation Act 1988 (Cth)

McGuinness v Comcare [2007] FMCA 1486

REASONS FOR DECISION

12 December 2008 Ms N. Bell, Senior Member
Dr I. Alexander, Member   

1.Paul Mirabello began work with the Australian Taxation Office (the ATO) in January 2003 as a client service representative at the Penrith call centre.  His evidence was that he completed his training in June 2003 and a few weeks after that he experienced a loud static noise - “a loud crackling noise” - through the headset he wore on his left ear.  He said that between June 2003 and February 2004, he experienced about 7 of these incidents and suffered a range of symptoms following each of them.  In March 2004, he said, he experienced a particularly loud noise through the left ear piece and suffered symptoms over a longer period.  Another incident, in November 2004, made him suffer further symptoms, some of which persist to the present day.

2.Mr Mirabello lodged a claim for compensation in November 2004.  In December 2004 Comcare accepted liability for “noise effects on inner ear (left)" and Mr Mirabello was given other duties.

3.Work Solutions Group prepared a return to work plan which underwent various amendments and, in a version of the plan dated 17 June 2005, Mr Mirabello was required to undertake pre-injury duties from 14 June 2005 “with the provision that he receives no further acoustic injury".  By this time the ATO had installed a soundshield on all telephones in the call centre. The soundshield was said to prevent acoustic shrieks or high pitched tones from reaching the ear of the headset user by detecting and instantly rejecting the shrieks within 16 − 32 miliseconds.

4.After a request for reconsideration of the return to work plan by Mr Mirabello and further assessment by specialist medical practitioners, another return to work plan was developed and intended to take effect from 7 March 2006.  Mr Mirabello again requested a reconsideration of the plan and, after considering Mr Mirabello's explanation that he had been given no guarantee that the soundshield would eliminate the possibility of acoustic shock, the ATO issued a determination that Mr Mirabello had failed to provide a reasonable excuse for not complying with the rehabilitation program.

5.On 6 July 2006 Comcare affirmed the determination to implement the return to rehabilitation plan and the determination in relation to Mr Mirabello's failure to comply with it.  That affirmed decision is the…