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 reviewable decision, the subject of this application.

issues

6.Three main issues arise:

i) Whether the return to work plan complies with the requirements of section 37 (3) (f) of the Safety, Rehabilitation and Compensation Act 1988  (the Act), that is, whether the ATO had regard to Mr Mirabello's attitude to the plan; and, if so,

ii)    Whether Mr Mirabello had a reasonable excuse for not complying with the return to work plan; and, if so,

iii)   Whether the return to work plan itself was appropriate and reasonable.

7.In this case, issues (ii) and (iii) raise common questions. Among them are the nature of Mr Mirabello's injury, that is, whether he suffered an acoustic shock or acoustic trauma; whether there is a real risk of another acoustic incident if Mr Mirabello were to return to wearing a headset and the likely effect on him were that to happen.

did the australian taxation office have regard to mr mirabello’s attitude to the program?

8.Section 37 (3) (f) of the Act provides:

(3)In making a determination under subsection (1), a rehabilitation authority shall have regard to:

…

(f)        the employee’s attitude to the program;

…

9.The provision was recently considered by the Federal Magistrates Court in McGuinness v Comcare [2007] FMCA 1486.  It was held that unless an employee's attitude is taken into account, a rehabilitation program is not validly made.

10.Mr Mirabello maintained that his attitude to the program had not been taken into account and he referred to his request for reconsideration in which he stated that the return to work plan had been prepared "without reference to" him and that he had "no involvement in its preparation whatsoever".

11.Comcare sought to distinguish the decision in McGuinness on the basis that, in McGuinness, when a meeting was held with the employee in order to discuss a graduated return to work plan, there was at that time no program in existence.  Following that early January meeting, the employee was advised by letter in late January that she was to return to work in accordance with the plan and it was signed and sent to her.  The Federal Magistrate said:

“One can only express an attitude to a program if a program actually exists.”

12.The Federal Magistrate considered it a "fundamental flaw" in the process leading up to the creation of the program that it had not been finalised after the employee's attitude was taken into account.

13.In Mr Mirabello’s case, a number of return to work plans have been instituted.  They are detailed at length in the statement of Alan Wilson, Health Case Manager with the ATO.

14.It is clear that, at the meeting on 6 March 2006, a return to work plan was in existence and was discussed with Mr Mirabello and offered to him for signature.  It is also clear that Mr Mirabello had voiced his objection to wearing a headset since the first return to work plan was prepared in April 2005.  According to Mr Wilson's evidence, Mr Mirabello stated his concern at the 6 March 2006 meeting.  Mr Wilson's evidence was also that the plan was based on the report of Dr Pascall, Occupational Physician, who had in turn had regard to the report of Dr Howison, Mr Mirabello's treating ear, nose and throat specialist.

15.Dr Pascall confirmed this in her evidence to the Tribunal.  Dr Howison, in turn, was and remains, the medical specialist relied on by Mr Mirabello in his refusal to wear a headset.

16.We do not consider that the ATO failed to have regard to Mr Mirabello's attitude to the return to work plan.  On the contrary, his attitude and the medical opinion on which he said it was based were taken into account in relation to previous versions of the return to work plan and when a final plan was prepared and presented to him, at the meeting on 6 March 2006.  Unlike the situation in McGuinness, there was, at the 6 March 2006 meeting, a plan in existence.  Mr Mirabello expressed his attitude to the return to work plan and Mr Wilson's evidence was that his attitude was considered, but a decision was made to pursue the plan as it stood.  With Mr Mirabello's insistence on a guarantee that he would suffer no further acoustic incidents, there was, as submitted by Comcare, an impasse.

17.In addition, Dr Pascall’s report of 22 November 2005, and the alternative return to work plan proposed by her, clearly take into account and act on Mr Mirabello’s concern about the risk of further acoustic incidents.  Her report is very responsive to his concerns.

18.Disagreement with Mr Mirabello's attitude does not amount to a failure by the ATO to have regard to it.  There is ample evidence that his attitude was considered, in spite of Mr Mirabello's assertions to the contrary.

19.We conclude that subsection 37 (3) (f) of the Act was complied with.

did mr mirabello have a reasonable excuse for failing to comply with the program?

20.In order to answer this question it is first necessary to consider what condition Mr Mirabello suffered from at the time of his refusal to comply with the rehabilitation program.

21.We had the benefit of concurrent evidence from Drs Carroll and Williams, both ear, nose and throat specialists.  Both doctors agreed that an “acoustic incident” is simply a loud or piercing noise.

22.Dr Williams said that the definition of “acoustic shock” is variable and that it is not a medical term.  He said he interprets “shock” to mean nervous shock.  He said:

“… an acoustic shock is a loud noise that can – that’s presented to the ear, so it’s physically presented to the ear by sound waves that does cause an injury, even if it may be a mild injury or it may cause pain in addition to other symptoms.”

23.He added that the “inner ear has pain fibres and the pain that they experience can arise from injury to the ear or the inner ear”.  He said those pain fibres can connect to the trigeminal nerve and can cause dysthesia or other vague and unexplainable symptoms.

24.In contrast, Dr Carroll defined “acoustic shock” to mean a fright experienced by exposure to an acoustic incident and noted that the term “acoustic shock” is now in the medical literature and is evidenced by a variety of symptoms that lack an anatomical explanation.  Those symptoms may include aural symptoms, tinnitus, hyperacusis, burning pain in the ear canal, numbness around the ear, a feeling of fullness of the skin on the face, neck and even the arm and persistent periauricular pains with no apparent cause.  For that reason, said Dr Carroll, it is “considered there is certainly a large emotional element and it may be entirely without an organic basis.”

25.As to “acoustic trauma”, Dr Williams said it has a physical component which may lead to secondary post-traumatic stress.  Dr Carroll defined “acoustic trauma” as a temporary or permanent change in the auditory threshold as a result of exposure to a sudden, intense acoustic stimulus of 140 decibels or greater.  It involves some physical change.  He considered it possible for a person to suffer acoustic trauma in the setting of a call centre.  We note that, in response, Dr Williams considered that acoustic trauma can occur at noise levels over 115 decibels.

26.Dr Carroll was of the view that Mr Mirabello suffered acoustic shock but not acoustic trauma.  He thought that, without objective evidence of any threshold to shift, Mr Mirabello would not have suffered an acoustic trauma.

27.An audiogram dated 26 November 2004 of Mr Mirabello shows a threshold shift at 6000 hertz in both ears.  Dr Carroll's evidence was that the range between 3000 and 6000 hertz is where maximum losses are located following noise exposure.  Dr Carroll considered that given that the shift occurred in both ears and the incident occurred with the headphone applied only to the left ear, the threshold shift would not be the result of the acoustic incident complained of.  Rather, the audiogram result might be due to a technical problem with the hearing test.  Some support for this view is lent by a further audiogram of 10 December 2004 which was normal.  Dr Carroll was not persuaded by Dr William's suggestion that the left ear threshold, although raised, remained within normal limits according to the tables, issued by the National Acoustic Laboratories, for determining percentage loss of hearing for medico-legal purposes.  He considered those tables are not indicative of what is normal hearing.  Rather, their purpose, he said, is the calculation of a lump sum payment.

28.Dr Williams considered Mr Mirabello to have suffered acoustic trauma and relied on the 26 November 2004 audiogram to establish the threshold shift necessary to indicate acoustic trauma.

29.We also note his evidence that he recommended to Mr Mirabello that he not wear headsets where the sound level may reach 90 decibels.  While both doctors agree that Mr Mirabello has tinnitus, Dr Carroll considered that wearing a headset would not have any effect on the condition, although he allowed that the absence of ambient noise, when the headset is on, may make him perceive his tinnitus to be worse – but only while the headset is on. 

30.Dr Williams considered that the wearing of a headset would aggravate Mr Mirabello’s tinnitus.  He referred to an article in a textbook, “Tinnitus: Theory and Management”, recording the effects of exposure to noise at 90 to 120 decibels, to support his view.  Dr Carroll noted that the subjects referred to in the article had been exposed to noise at these levels for 15 minutes at a time and it was after that exposure that tinnitus, mostly associated with hearing loss, was experienced.  He noted that the soundshield reduces intense noise to 90 decibels within 20 milliseconds and on that basis did not agree with Dr Williams’ recommendation.

31.We prefer the evidence and opinion of Dr Carroll.  We consider his evidence to be more considered, particular and logically persuasive.  We also note that Dr Howison, Mr Mirabello’s former treating ear, nose and throat specialist, did not diagnose acoustic trauma, but instead spoke of acoustic shock.  On this basis, we find that Mr Mirabello has suffered acoustic shock and continues to suffer from tinnitus and hyperacuisis (as opined by both Drs Williams and Carroll).

32.As to the risk to Mr Mirabello of further exposure to acoustic incident, we note the evidence of Mr Trevor Guest, Managing Director of Polaris Communications Pty Ltd, who was involved in the first “rollout” of the Polaris Soundshield system in 2002.  According to Mr Guest the system is designed to eliminate shrieks coming through a telephone line and to limit noise levels.  He said the software will capture high pitched tones between 1000 and 4000 hertz in under 16 milliseconds.  The noise level is limited to 95 decibels at the ATO.  The units were installed at the ATO in May 2005.

33.Mr Guest acknowledged that some units had been returned from the ATO for further testing but said they were found to be functioning properly.  He ventured the opinion that not all complaints of acoustic incidents are “fair dinkum”.  He said he was specifically aware of one claim that the device had not worked and he had learned there had been a blackout which caused a “twicking” noise through the soundshield.  He said the system had been modified following that incident so that in the case of a blackout or a brownout the system shuts down and automatically transfers the call from the headset to the handset mode.

34.Mr Guest said that it was not possible for Polaris to give a guarantee of total effectiveness of the soundshield system – largely because the company’s insurers would not allow it.

35.We note the tender on behalf of Mr Mirabello of what purports to be a table of reports of acoustic incidents.  No witness or documentary evidence was presented to verify the provenance or contents of the table.  Virtually no weight can be given to it.  In any event, we note that it purports to be reports of incidents and is not accompanied by any investigation, resolution or expert opinion.

36.On balance, we conclude that the risk of further acoustic incident is low.

37.As to the likely effect on Mr Mirabello if he were to experience a further acoustic incident, we are mindful of the opinion of Dr Carroll who considered that if Mr Mirabello experienced a further acoustic incident he would not suffer an aggravation of his tinnitus or hyperaccuisis on the basis of any physical injury.  However, Dr Howison, in his report of 15 February 2006, said that if further “acoustic shocks” occur, Mr Mirabello’s current symptoms of tinnitus and hypersensitivity are likely to be exacerbated.

38.We are also mindful of the report of Dr Pascall dated 22 November 2005, who considered that once a person, responds to an acoustic incident with shock, the person has an increased tendency to respond similarly to further acoustic incidents.  As an alternative to Mr Mirabello simply looking for other work within the ATO or elsewhere, Dr Pascall recommended changes to the return to work plan including the initial use of a headset for outbound calls only, using the considerably less risky normal telephone network system; keeping the volume on the headset down; reintroducing use of a headset slowly beginning at 15 minutes per day for 2 weeks and gradually increasing at a slow pace.  Dr Pascall noted that Mr Mirabello’s level of risk acceptance is the “crux” of the return to work plan she proposed and she described her attempt in the proposed plan, to increase Mr Mirabello’s familiarisation with the hazard of acoustic incidents and thereby assist him to alter his level of risk avoidance.  She described Mr Mirabello’s risk of being hit by a car when crossing the street as being far greater than his risk of experiencing further acoustic incident with the soundshield in place.

39.Overall, we consider that Mr Mirabello’s excuse for not undertaking the rehabilitation program is not reasonable. While we understand that he is anxious about experiencing a further acoustic incident, we find the risk of that to be low, given the use of the soundshield.  We accept the opinion of Dr Carroll that even if Mr Mirabello did experience a further acoustic incident, he would suffer no physical injury.  We also find that the return to work plan includes careful steps to assist Mr Mirabello to deal with his anxiety about wearing a headset and to alter his perception of the risk involved.  We are impressed by the care with which Dr Pascoe considered Mr Mirabello’s concerns.

40.Having reached this conclusion, it is unnecessary to consider whether the rehabilitation program itself was reasonable.  However, for completeness, and on the basis of the findings set out above, we consider it to be an appropriate and reasonable rehabilitation program and the decision to issue the program correct.

decision

41.The decision under review is affirmed.

I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of  

Signed:         .........................................sgd.........................................
  Associate: Felicia Daniele

Date/s of Hearing     23/24 July 2007; 26/27 May 2008 and 22 August 2008

Date of Decision  12 December 2008
Counsel for the Applicant          Mr D Richards
Solicitor for the Applicant           Ms S. Lepage, Slater and Gordon
Counsel for the Respondent     Mr M Best
Solicitor for the Respondent     Mr C Hutchins, Australian Government Solicitors