Moore and Comcare (Compensation)

Moore and Comcare (Compensation) [2016] AATA 350 (30 May 2016)

Division

GENERAL DIVISION

File Number(s)

2014/6006

Re

Jane Moore

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Senior Member Cunningham

Date 30 May 2016

Place Hobart
The decision under review is affirmed.

........................................................................
Senior Member Cunningham
CATCHWORDS
Workers Compensation – claim of tinnitus from faulty headset – whether an “injury” or “disease” within s4(1) – no sudden or identifiable physiological change arising out of or in course of employment – no evidence of contribution by employment – decision under review affirmed
LEGISLATION
Safety Rehabilitation and Compensation Act 1988
CASES
Re Sandercock and MRCC (2013) AATA 517
Military Rehabilitation and Compensation Commission v May [2016] HC 19
REASONS FOR DECISION
Senior Member Cunningham

The Applicant was working as a Customer Service Officer with the Department of Human Services (DHS) when she says she suffered an injury to her right ear from a faulty headset. The Applicant made a claim for compensation under the Safety Rehabilitation and Compensation Act 1988 (SRC Act) for tinnitus/hearing loss. The claim was refused and the Applicant requested a reconsideration. The Respondent’s delegate affirmed the original determination not being satisfied on the available evidence that the Applicant suffered an ailment, and even if she had, he was not satisfied that the ailment was related to her employment.
The Applicant now seeks a review of the decision by the Administrative Appeals Tribunal. The Applicant appeared on her own behalf at the hearing and the Respondent was represented by Craig Hobbs. The Applicant gave oral evidence at the hearing and submitted documentary evidence in support of her claim, which included emails between the Applicant and DHS officers. The Respondent called Robin Hooper, ENT Consultant who had provided three reports with respect to the Applicant’s condition, and Helen Eggins, the Applicant’s team leader at DHS at the relevant time. The Respondent tendered medical records of the Applicant, emails between the parties and others, an article regarding the Sound Pro Corded Binaural Headset, Australian Communications Industry Forum Guideline on Acoustic Safety for Telephone Equipment, articles on acoustic neuroma and tinnitus.
LEGISLATION
The relevant legislation is the SRC Act. Subsection 14 (1) provides that the Respondent is liable to pay compensation in respect of an injury suffered by an employee if the injury results in incapacity for work. Section 16 provides that Comcare is liable to pay the cost of medical treatment obtained in relation to the injury, being treatment that was reasonable for the employee to obtain in the circumstances whether or not the injury results in incapacity for work.
An “injury” as defined in sub section 5A (1) as follows:
“(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but 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.”
Subsection 5B (1) defines ‘disease’ as:
“An ‘ailment’ is defined in section 4 as “means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).”
INJURY OR DISEASE
In her claim for workers compensation the Applicant described the injury as “tinnitus/hearing loss” and the action, exposure or event causing the injury as a “piercing sound projected from headset.” The Comcare delegate did not consider that the Applicant suffered an ailment that was contributed to a significant degree by her employment. Mr Hobbs on behalf of the Respondent submits that the delegate’s characterisation of the Applicant’s claim as relating to a “disease” rather than an “injury” was correct.
It is open for the Tribunal however to consider that the “tinnitus” complained of by the Applicant in the circumstances asserted, may amount to an “injury” (other than a disease). As the Tribunal observed in Re Sandercock and MRCC (2013) AATA 517 :
27. “There is no consistent view in the cases as to whether hearing loss is an “injury” or a “disease” for the purposes of the 1988 Act. However, the distinction between an “injury” in its primary sense and a “disease” was described by the High Court as the difference between “a sudden and ascertainable or dramatic psychological change or disturbance of the normal psychological state” as compared with the “underlying pathology” that constitutes a “disease”.
28. Applying that distinction, acoustic trauma, if it results in sudden damage to sensitive hair cells of the in each year as well is the hearing nerve would amount to an “injury” while presbyacusis, being a slowly degenerative process associated with ageing, would amount to a “disease”. Mr Sandercock’s mild tinnitus could be either an injury or disease depending on whether it was provoked by a loud noise, or by a disease of the ear.” The Tribunal so finds:
On 11 May 2016 the Full Court of the High Court handed down its decision in Military Rehabilitation and Compensation Commission v May (2016) HCA 19. The High Court allowed the appeal from the decision of the Full Court of the Federal Court which concerned a decision of the Administrative Appeals Tribunal. The Tribunal concluded that Mr May had failed to demonstrate that he had suffered a physical injury amounting to a “sudden or identifiable physiological change” in the normal functioning of the body or its organs attributable to the vaccinations received while serving in the RAAF. Therefore Mr May had not suffered an “injury” (other than a disease) “for the purposes of par (b) of the definition of “injury” in s 4 (1) of the Act and nor had he suffered a “disease” within par (a) of the definition “injury” in s 4 (1) of the Act.
The High Court discussed the meaning of the term “injury” under s 4 (1) of the Act in the following paragraphs:
“42.The set of conditions answering the definition of “injury” in the Act relevantly comprises two sub-sets, “disease” [42] and “injury” (other than a disease)” [43], the latter sometimes referred to, not necessarily helpfully, as injury simpliciter. They comprise separate but related bases of liability [44]. Each has a different meaning in the statutory scheme.
43.As appears from the definition of “disease”, a “disease” for the purposes of the Act must be an ailment or an aggravation of an ailment. That is not sufficient to establish the existence of a disease. The ailment or aggravation thereof has to have been contributed to in a material degree by the employee’s employment by the Commonwealth.
44.An “injury” (other than a disease)” covers the other sub-set of “injury” [45]. Various aspects of this limb of the definition of “injury” should be observed. First, the phrase “other than a disease” means that if an employee establishes that they have a “disease” within par (a) of the definition of “injury”, there is no need to consider par (b). Second, an “injury (other than a disease)” suffered by an employee must be “a physical or mental injury arising out of, or in the course of, the employee’s employment [46] (emphasis added). That is to say, the physical or mental injury has to have a causal or temporal connection in respect of a “physical or mental injury” in par (b) directly raises the question – what does “injury” mean in that paragraph?
45.“Injury” in par (b) is used in its “primary” sense. As Gleeson CJ and Kirby J explained in Kennedy Cleaning Services Pty Ltd v Petkoska, if “something … can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an “injury” in the primary sense of that word” [47] ( emphasis added).”
ISSUES
Thus the issues for the Tribunal to determine are:
(i)Did the Applicant suffer either an injury that arose out of, or in the course of her employment, or a disease that was contributed to, to a significant degree, by her employment.
(ii)Is the Respondent liable to pay compensation in accordance with section 14 of the Act?
EVIDENCE
In her written statement of evidence to the Tribunal, Ms Moore stated that:
“On the 31^stOctober 2013 when the new cisco phone’s (sic) had been introduced to us, I was on a phone shift at 10:15am in the morning I had unusual buzzing through the headset in the end the noise got so bad it had hurt my right ear. There were 3 telephone technicians (sic) available and my T/L advised that she would get one of them to look at the phone, I was then advised that the phone was faulty and not to use the phone until they replaced it. The phone was replaced with in (sic) about 10 minutes. I continued using the phone’s (sic) until the 7 November 2013.
I notified my Team Leader on the 7 November 2013 the pain in my ear was excruciating and went downstairs to see a Dr Zeeshan Rahim which advised that a normal eardrum is curved in ways but my right ear was curved out ways and he advised that when we are exposed to different high-pitched sounds which is called an Acoustic shock which has been verified by Dr Robin Hopper, Consultant Otolaryngologist.
I was told that I was not to use the phone until Dr Zeeshan Rahim monitored my eardrum and requested that I have (sic) hearing test through my workplace ASAP.”
In Mr Robin Hooper’s report of 20 March 2014 when describing her current symptoms, said that:
“Ms Moore complained of constant noise in her right ear which she described as a noise that a television makes when it is not on a channel. She complained of fluctuation in the hearing levels in the right ear and occasional stabbing pain in the right ear. She has also noticed a “pulsing” sensation in the right ear.”
Under the heading “History” Mr Hooper stated:
“Ms Moore said that some time in October 2013 a “new phone system” was installed at work. She said that some time after this installation she heard a constant “buzzing sound” in the right headset. She noted this noise again after the lunch break and reported it to the manager who told her to “get off” the phone. She said she had been exposed to this noise for approximately 6 hours. The following day she complained of a buzzing sound in the right ear and went to see her general practitioner who told her that her eardrum “had bulged”. She went back to the GP one week later because of persistent noise in the ear and the occasional pulsing sensation in the right ear. She also felt that she had lost some hearing in the right ear.”
In her evidence to the Tribunal the Applicant said that at around 10:15am there was a noise which she described as a constant buzzing noise through the headset. She complained to her Team Leader Helen Eggins that there was something wrong with her phone. She told Ms Eggins that her ear was aching and Ms Eggins said she would come to look at the system either before or after lunch. When Ms Eggins did come to look at the phone, the noise was not as bad as it had been previously but Ms Eggins commented that it should not be making that noise. The Applicant said that the Telstra technician, Roy Paterson was present at the time and also commented that the phone should not be making that noise. He replaced the headset, sound shield and phone and the Applicant subsequently lodged an incident report with DHS.
The Applicant said that the incident took place on either Thursday or Friday and her right ear progressively got worse such that she experienced a throbbing pain and ringing which was the more worrying symptom. She said that these symptoms started either later the same evening or the following day and she spent the weekend resting at home. She visited the City Doctor who noted a problem with her eardrum which was “curved out”. He also recorded a hearing loss of 50% which returned to normal after swelling reduced over the next 8 to 10 weeks. The Applicant said that she still experiences ringing in her right ear only which gets worse when she is stressed.
During cross-examination the Applicant confirmed that the sound from her headset initially started as a light echoey, fuzzy sound like you hear on an international call and that it was constant. She agreed that there was no “loud bang” but more like a buzzing sound from a bumblebee and then an unusual noise which she was not able to fully describe. She said that this noise was different and got worse, it was not like a screech but was a different pitch. The Applicant’s estimate of the duration of this different type of noise was “just a few seconds“, it was “very quick”. She confirmed that the noise was not loud but was just “different like a sharp pain”. She found it difficult to explain the exact sensation. The Applicant said in her evidence that after informing Ms Eggins about the noise she was told to keep using the phone which she did for a couple of hours. During this time she took other calls but did not experience the same noise again. She maintained that she had told Ms Eggins that the noise had hurt her right ear and was told to put in a report. She said that Ms Eggins had not told her not to continue to use the phone set and said that she would come over to see her before or after lunch. She confirmed that neither Ms Eggins or Mr Paterson expressed any concern to her after listening through her headset. Despite the claimed injury the Applicant said that she continued working throughout November. The Applicant said that she had not experienced any symptoms of tinnitus prior to this incident.
Relevant excerpts from emails tendered in evidence stated the following:
From the Applicant to Helen Eggins dated for November 2013: “Hi Helen, Heads up my phone is so bad that is not even word for it. It’s hurting my head so bad buzzing straining to hear customer in and out volume. Thanks Jane Moore”
From Helen Eggins to Bronwyn Larkins, cc Jane Moore which included Helen Eggins’ responses to questions asked of the Applicant: “After you had alerted your team leader that there was a loud buzzing in your headset, why did it take to after lunch for your team leader to listen to the phone?-
While it did take me until after lunch on the day the phones were rolled out to listen to the phone we had had Telstra technicians looking at the phone and others and we escalated the issue to be considered by them. My listening to the phone and informing the techs that I could also hear an odd noise was incidental not key to the process”.
The Applicant was asked about her recent medical history and in particular whether she had suffered an illness prior to 31 October 2013. The Applicant responded that she did have a chest infection and pneumonia but was not sure of the date. She believed that her last ear infection had been some 12 months previously. The subpoenaed medical notes from the Salamanca Practice Centre included a consultation with Dr John Burke on Monday, October 28, 2013 who reported: “Green nasal discharge and cough sputum green was vomiting but stopped now teeth ache tracheitis and tender sinuses. Actions: prescription added: Augmentin duo Forte tablet 875mg/25mg 1b.d.… Letter Created – re. Certificate 4 JB to.”
On the 16 December 2013 Dr Burke recorded: “aching all over since last night fever sore throat and cough sputum yellow and some nosebleed O/E TN chest OK sinuses OK PD INFLUENZA prescription added… Letter created-re-. Certificate 4JB to.”
After these medical notes were read to the Applicant she said that she recalled having had the flu for a couple of weeks. It was pointed out to her that there was no mention of tinnitus or any ear problems in the Salamanca Practice medical notes. The Applicant was not sure whether her doctor had checked her ears but said that he usually did.
There were earlier references in the medical notes during July and August 2013 to the Applicant experiencing poor sleep problems at work and having feelings of depression.
The Applicant maintained that her discomfort and pain was significant by 7 November particularly when flying, and that she was not sleeping well or thinking clearly.
In Helen Eggins’ statement of evidence she states that it was around the middle of the day on 31 October 2013 that the Applicant first complained about the background noise in her phone coming through her headset. She states that the Applicant had not complained that the noise was loud but that it was distracting although she could still hear customers over the background noise. Because the new phones were being installed that day, there was a Telstra technician providing on-site support. When the Applicant complained about the background noise, the Telstra technician put on the headset and reported that he heard no noise. Ms Eggins states that she was asked by the Applicant and the technician to listen to the noise which she did. She heard a “low humming crackling noise” which was an underlying noise rather than a predominant sound. It sounded like a bad quality overseas connection, was not high-pitched but continuous. While she did not find it to be a problem because the Applicant had reported that it was distracting, Ms Eggins requested that her phone be changed. The Applicant’s phone was subsequently exchanged for a new one by the Telstra technician. Ms Eggins said that it was treated as a “routine issue”. Ms Eggins maintains that the Applicant did not complain about having heard a loud screech over the phone. The Applicant had asked Ms Eggins whether she could also hear the noise and said that it had been there since earlier in the day. She maintained that the Applicant at no stage complained of an acoustic screech.
In her evidence to the Tribunal Ms Eggins said that at no time had the Applicant complained about a pain in her right ear or that the noise had caused any discomfort. She believed the Applicant had initially complained about mid-morning around 10:00am but that she did not listen to the telephone until sometime after lunch. She had arranged for the technician to listen to the phone which happened approximately 20 minutes following the request. When she listened through the headset, Ms Eggins described hearing “a slight hum.” She said the head set was replaced mainly because of the Applicant’s complaint.
MEDICAL EVIDENCE
On 7 November 2013 Dr Zeeshan Rahim reported that he had examined the Applicant and stated that there is “a possibility that her tinnitus is related to the headset she is using at the moment at work. It would be prudent to avoid telephone duties for at least two weeks.” In a workers compensation medical certificate dated 12 December 2013, the Applicants general practitioner, Dr A. Sharman described the Applicant is presenting symptoms of tinnitus and hearing loss in the right ear with a provisional diagnosis. The circumstances giving rise to the injury/disease as reported by the Applicant were as follows “wears headphones at work and there has been a recent change in the telephone system which has caused tinnitus (right ear) to appear and is now complaining of hearing loss in the right ear consistent with the stated cause.” Dr Sharman then added the following notation “possible exacerbation of previous illness.”
An Audiometry Assessment was undertaken on 17 December 2013 (T11) which reported ear infections mostly in childhood, the last occurring about 12 months ago. In response to the issue of vertigo the Assessment states that the Applicant had recently fainted in an elevator due to very acute pain in right ear. Regarding noise exposure the following is stated “long work history as phone operator. She had a faulty phone at work on 31^st of October this year where loud noise affected her right ear. She had her ear checked by the GP after that and it was inflamed.”

On 2 January 2014 the Applicant was referred to Dr Nusa Naiman by City Doctors for her complaint of right ear tinnitus which started after using headsets. It was reported that her audiometry report is normal hearing and her examination of the ear canal and TM looks normal although the symptom was keeping her awake at night and is very disturbing.
The Applicant was referred to Mr Robin Hooper, Consultant Otolaryngologist by the Respondent who reviewed the available file data and audiometry test results. Mr Hooper reported that the Applicant had informed him that a new phone system had been installed in October 2013. Sometime after the installation she heard a constant “buzzing sound” in the right headset. She noted this noise again after the lunch break and reported it to the manager who told her to “get off” the phone. She said she had been exposed to this noise for approximately 6 hours. The following day she complained of a buzzing noise in the right ear and went to see her general practitioner who told her that her eardrum “had bulged”. She went back to the GP one week later because of persistent noise and occasional pulsing sensation in the right ear. She also felt that she had some hearing loss in the right ear and had a hearing test organised by her general practitioner.
Mr Hooper reported that Ms Moore did not presently have a diagnosable ontological condition. He stated that Ms Moore’s main complaint is right sided tinnitus and that this symptom is subjective and impossible to quantify. It may be permanent. At paragraph 9 he stated “Ms Moore’s present symptom of right-sided tinnitus occurred during her employment with Human Services. There is no evidence of her participating in any other activities which would have contributed to her tinnitus nor is there any history of noise exposure in previous employments.” At paragraph 10 he states “Ms Moore states that her symptoms occurred shortly after using her right headset with a new telephone. There is no evidence that she has sustained significant noise exposure during this employment period to account for her work-related tinnitus.” He did not consider that Ms Moore was suffering hearing loss. In view of the sudden history of unilateral tinnitus which Mr Hooper stated is occasionally pulsatile in nature, and the audiogram performed shortly after the incident which showed a moderate flat hearing loss, Mr Hooper recommended an MRI of the brain, inner ears and also an MRA and MRV.
In his subsequent report of 11 August 2015 Mr Hooper in response to the question as to how the symptoms of tinnitus occurred stated, “I find it difficult to explain that her symptom of “tinnitus” is related to the low-grade acoustic instance. I note that her mother has hearing aids although she does not currently have tinnitus. This family history of hearing loss could possibly be relevant in her symptom of tinnitus.”
Mr Hooper went on to state that “tinnitus is a symptom and not a medical condition rather like headache which is also a symptom and not a diagnosable condition on a stand-alone basis.” He did not accept the results of the audiogram performed on 12 December 2013 which appeared to show a flat sensorineural hearing loss. He said that the pattern of the audiogram at that time showed no characteristics of a noise induced hearing loss and he suspected that Ms Moore had normal hearing at the time of the evaluation and that there may have been testing difficulties with the audiogram. Subsequent hearing tests have indicated normal hearing bilaterally. Dr Hooper suggested the MRI to rule out a nascent right acoustic neuroma and an MRA and MRV to rule out vascular abnormality. Any pathology revealed on the MRI would be unrelated to the acoustic incident.
In a further report from Mr Hooper dated 23 September 2015 he responded to a statement made by the Applicant and specifications for the headset and sound shielding used by the Applicant at the time she claimed to have experienced buzzing in the phone and acoustic shock. He included specifications of the Sound Pro Wideband Corded Headset and stated that “These headsets have shriek rejection software which ensures that high-pitched shrieks never reach the ear of the headset user. They have a volume limiter which ensures the maximum headset sound levels are lower than the ACIF G 616 Guidelines which ensure that the noise exposure through the headset is less than the levels that can cause damage to the inner ear. It was also noted that they have noise dosimetry software which allows identification of noise events.” In response to a series of questions posed by the Respondent, Mr Hooper responded as follows:
“The sound output from these headsets is well below levels which would cause hearing loss or tinnitus. These headsets ensure that the wearer is not exposed to high intensity noise which would cause tinnitus or hearing loss.
This sound shield technology with shriek rejection and volume limiting could not cause damage to the inner ears. “Acoustic shock” is not a recognised medical condition.
It is not possible to determine the cause of her tinnitus on available data. Her symptoms are subjective and impossible to measure. It is noted that there is a family history of hearing loss in that her mother wears a hearing aid. People with a family history of hearing loss are more likely to develop hearing problems and/or tinnitus with the passage of time.”
In his oral evidence to the Tribunal Mr Hooper confirmed that any hearing loss claimed by the Applicant would not be related to noise exposure through her headset on account of the shriek rejection software. He also rejected the possibility of acoustic shock occurring as a result of a faulty headset. He said that the maximum noise level through a headset, faulty or not, is 120dB which would not be sufficient to cause an injury. He said that you would have to have sustained noise at this level for a period of seven hours for any impact. When asked by the Applicant as to the reason for her bulging eardrum, Mr Hooper replied that she could have had a middle ear infection which would have resulted in a lot of pain. He disagreed that any noise from the headset could have caused the bulging eardrum but it was more likely to have been the result of a cold or middle ear infection. It was his evidence that the headset, faulty or not, could not have caused the Applicant’s tinnitus or any hearing loss. Mr Hooper stated that any noise induced tinnitus would also result in hearing loss. Mr Hooper disagreed that any noise from her headset had caused her bulging eardrum.
DISCUSSION AND FINDINGS
The first issue for determination is whether the Tribunal can find on the balance of probabilities that the Applicant suffered an “injury” that either arose out of, or occurred in the course of her employment.
The Applicant contends that she suffered an injury to her right ear which was caused by the new telephone system installed her employer, Department of Health and Human Services. She relies on the diagnosis of tinnitus from her general practitioner, Dr Zeeshan Rahim who stated in a report dated 7 November 2013 “this is to certify that I have examined Ms Jane Moore today and there is a possibility that her tinnitus is related to the headset she is using at the moment at work. It would be prudent to avoid telephone duties for Ms Moore for at least two weeks.” Ms Moore contends that if Dr Rahim was not of the opinion that her tinnitus was not contributed to by her employment, he would not have recommended that she avoid telephone duties for at least two weeks.
The Applicant also refers to Dr Sharman’s workers compensation medical certificate dated 12 December 2013. In that report however Dr Sharman reports on “the workers” statement as to the circumstances that gave rise to the injury as follows: “wears headphones at work and there has been a recent change in the telephone system which has caused tinnitus (right ear) to appear and is now complaining of hearing loss in the right ear consistent with the stated cause.” Dr Sharman added a handwritten note which reads “possible exacerbation of previous illness.”
Despite her contentions, there is no medical evidence that confirms that the Applicants tinnitus arose out of, or occurred in the course of her employment. Mr Hooper notes that the Applicant’s complaint of right sided tinnitus is subjective and impossible to quantify. He affirmatively rejects the contention that it occurred in the course of her employment and states that there is no evidence that the Applicant participated in any activities that would have contributed to her tinnitus and there is no evidence that she sustained any significant noise exposure during her employment to account for her tinnitus. Mr Hooper was of the opinion that the Applicant does not suffer any hearing loss.
The Applicant’s various accounts regarding the circumstances that she claims gave rise to her tinnitus are inconsistent. In her evidence to the Tribunal she described a constant buzzing noise through the headset and that she complained to Ms Eggins about her aching ear. While she said that the noise from the headset “changed” she said that it was not a loud noise. In her claim for workers compensation however, the Applicant described a piercing sound projecting from her headset and pain going through the right side of her head.
In her statement of 9 July 2015 which accompanied her Application for Review the Applicant maintains that there was an unusual buzzing sound through the headset which in the end got so noisy that it hurt her right ear. She states that her team leader advised that she would get a telephone technician to look at her phone and she was then advised that the phone was faulty and not to use it until it was replaced. The phone was replaced within 10 minutes. She said she continued using the phone until 7 November 2013 when she notified her team leader that the pain in her ear was excruciating and she then went downstairs to see Dr Rahim. The Applicant maintains that she had not experienced this pain before using the headset.
Ms Eggins stated in her evidence to the Tribunal that the Applicant had not complained about pain in her ear and that if she had, Ms Eggins would not have directed her to continue working without having her equipment checked. When Ms Eggins listened through the headset, she detected a background noise which she described as a slight distortion that was of no concern. Ms Eggins agreed that the noise could be described as a “buzzing noise”, a “slight hum”. She was present when the technician also listened through the headset and said that he could not detect a problem.
Ms Eggins was shown a copy of an email from the Applicant dated 4 November 2013 which reads: “Hi Helen Heads up my phone is so bad that it is not even word for it. It’s hurting my head so bad buzzing straining to hear customer in and out volume Thanks Jane Moore”. The Applicant said in her evidence that whilst the former headset had been replaced, she was still experiencing a buzzing sound in her head which made it difficult to hear customers on the phone. Ms Eggins noted that the Applicant had complained of a pain in her head rather than her ear.
The Applicant agreed that she had consulted Dr John Burke with flu-like symptoms on 28 October 2013 and again on 16 December 2013. On 6 January 2014 Dr Claire Fuller had reported that the Applicant’s “cough persists, has one episode of bright red blood”. Whilst Mr Hooper stated that such flu symptoms would not give rise to the Applicant’s tinnitus, he agreed that it could explain other symptoms for instance her bulging right ear, pain and temporary loss of hearing. Another symptom was a recent fainting experience in a lift that could be associated with her flu.
The Tribunal accepts the Applicant’s evidence regarding the background buzzing noise that she experienced from her headset on the 31 October 2013 as confirmed by her team leader, Helen Eggins. In addition the Applicant said that she experienced a secondary sound from the headset and described this noise as “different” but not particularly loud or piercing. It was this noise that she contends “got so bad that it hurt her right ear.” She could not recall whether she continued to use the headset that morning after complaining to Ms Eggins. She maintained that she complained about a sore ear. It was Ms Eggins’ evidence that the Applicant had not complained about a sore ear and if she had, she would have been told not to continue to use the headset. The Applicant does not recall whether she was told not to continue to use the headset. This is consistent with her not having complained about a sore ear at the time. The incident complaint records for the relevant period were tendered in evidence and do not record a complaint relating to the Applicant’s headset.
The Tribunal accepts Ms Eggins evidence that the Applicant did not complain that the sound from the headset had caused the Applicant’s ear to ache. There is no convincing evidence that the Applicant complained about an ache in her ear. The first reference to any pain is in the email that she sent to Ms Eggins on 7 November 2013 complaining of a pain in her head. The Tribunal considers that the Applicant’s symptoms of pain, bulging ear and temporary hearing loss are more consistent with the flu condition that she was then experiencing, than any injury being sustained as a result of problems with her headset.
The uncontested evidence was that the Applicant’s headset was fitted with a sound shield acoustic protection device which ensures that any sudden and unexpected loud noises never reach the ear of a headset user. Further, that the risk of acoustic shock injury is thus completely eliminated (R6). In any event the Applicant does not complain that she experienced a sudden or unexpected loud noise but described the sound as a “buzzing noise” which did get worse for a few seconds, not like a screech but of different pitch. There is no evidence to connect the Applicant’s tinnitus with the headset noise that she experienced on 31 October 2013. As Mr Hooper told the Tribunal, tinnitus is symptomatic of a condition rather than being a diagnosable condition on a stand-alone basis. Mr Hooper said that it is not possible to determine the cause of her tinnitus but referred to the family history of hearing loss and other possible causes.
There is no independent medical evidence that the symptoms complained of by the Applicant later in the evening of the 31 October 2013 and over the following weekend were associated with tinnitus. It may be purely coincidental that the symptoms of tinnitus described by the Applicant developed around the time of the introduction of the new headsets at her place of employment. The Tribunal considers that a plausible explanation for the symptoms experienced by the Applicant during the trial of the new headsets is that they were associated with her flu condition.
The Tribunal finds on the balance of probabilities that the Applicant did not suffer an “injury” within the meaning of section 5A of the SRC Act. Contrary to the Applicant’s contention, there is no medical diagnosis of her tinnitus or hearing loss condition. The Applicant has not demonstrated that she suffered a physical injury amounting to a “sudden or identifiable physiological change” which the courts have now characterised as a necessary qualification for an “injury” within the meaning of s 4 (1).
Nor is the Tribunal reasonably satisfied on the available evidence of any causal or temporal connection between the Applicant’s condition and her employment. The evidence is that whilst the Applicant may have sustained a temporary hearing loss which the Tribunal considers was most likely associated with the flu condition, she no longer suffers a hearing loss. As Mr Hooper stated, tinnitus symptoms cannot be objectively assessed and although other medical practitioners have referred to the Applicant’s tinnitus, for the same reasons, there is no persuasive evidence that the symptoms are associated with her employment. Nor could the Applicant’s symptoms meet the definition of “disease” in section 5B of the Act being an ailment or condition that was contributed to, to a significant degree by the Applicant’s employment.
As the Applicant has failed to establish that she suffered either an “injury” or a “disease” as those terms are defined in section 4 (1) of the Act, the Tribunal determines to affirm the decision under review.

I certify that the preceding 46 (forty six) paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham, Senior Member

........................................................................
Administrative Assistant
Dated 30 May 2016

Date of hearing

16 & 17 February 2016

Applicant’s Representative:

Self

Respondent’s Representative

Respondent’s Solicitor:

Ms Naomi Richards

Mr Craig Hobbs

[2016] AATA 350

30 May 2016

Key Legal Topics

Areas of Law

Employment Law

Statutory Interpretation

Legal Concepts

Causation

Statutory Construction

Division	GENERAL DIVISION
File Number(s)	2014/6006
Re	Jane Moore
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Senior Member Cunningham
Date	30 May 2016
Place	Hobart