Ross and Telstra Corporation Ltd
[2006] AATA 731
•24 August 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 731
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/364
GENERAL ADMINISTRATIVE DIVISION ) Re LORRAINE ROSS Applicant
And
TELSTRA CORPORATION LTD
Respondent
DECISION
Tribunal Dr KS Levy, Member
Dr GJ Maynard, MemberDate24 August 2006
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
..........[Sgd]...........
KS Levy
Presiding Member
CATCHWORDS
COMPENSATION – stress condition – hearing loss - injury and liability - decision affirmed
Safety, Rehabilitation and Compensation Act 1988s14
Kirkpatrick v Commonwealth of Australia (1985) 9 FCR 36
REASONS FOR DECISION
24 August 2006 Dr KS Levy, Member
Dr GJ Maynard, Member
1. Ms Lorraine Ross has suffered from a stress condition. She says that essentially, this condition arose following a “screech” of noise in a headset which was used by her as part of her official duties with her employer Telstra. She had made a claim upon the respondent for this condition, but the application was rejected by a decision dated 31 March 2005.
2. The applicant now seeks review of that decision, which was made under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRCA). We have considered the circumstances and their application to section 14, but the Tribunal finds that there are no grounds to substantiate the claim that the applicant’s employment contributed to the development of her stress condition. The Tribunal’s reasons are set out below.
The Issues
3.The issues in dispute in this matter are:
(i)whether the applicant was or is suffering from an identifiable medical condition;
(ii)if so, whether the applicant’s condition was caused or materially contributed to, by her employment with Telstra;
(iii)if so, whether the exclusion provisions in the definition of injury under the SRCA apply to this case.
Legislation
4. The following statutory provisions are relevant to this claim:
“14 Compensation for injuries
(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
(2)Compensation is not payable in respect of an injury that is intentionally self-inflicted.
(3)Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.”
5.Section 4(1) of the SRC Act, in relation to the term “injury”, is as follows:
“Injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being 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), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.”
Evidence
6.The following documents were admitted into evidence:
·Exhibit 1 The “T” documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975
· Exhibit 2 Dr Reddan’s report of 3 May 2006
· Exhibit 3 Documents related to the previous claim
· Exhibit 4 Report by Dr Chris Martin dated 16 May 2005
· Exhibit 5 Report of Dr John Harland dated 14 June 2005
· Exhibit 6 Report of Dr Julie Thomason dated 28 September 2004
· Exhibit 7 Report of Dr Kevin Feely dated 29 September 2004
7. Oral evidence was received from the applicant, Mr Cooper (Telstra Manager), Dr Veltmeyer (the applicant’s General Practitioner), Dr Jill Redden (Psychiatrist), Dr Harland (Psychiatrist) and Dr Martin (Psychiatrist).
8. The evidence was that the applicant is now 61 years of age. She is employed by Telstra as a communication’s technician. On 16 July 2004, an acoustic shock (“a screech”) was experienced by the applicant. She told the Tribunal she was not upset by the acoustic incident itself, but by the subsequent treatment of her by her employer. She undertook her normal duties from 16 July 2004 to 4 August 2004. The records show that on 4 August 2004, the applicant was sent for a hearing assessment as she had been having hearing difficulties. There is no record of an acoustic incident being recorded, although the applicant claims that there was such a record.
9. Dr Julie Thomason, a Senior Audiologist with the Neurosensory Unit of Queensland Hearing Aids and Audiological Services prepared a report dated 28 September 2004 which states that the applicant has “a bilateral symmetric mild to moderate sensori neural hearing loss” (exhibit 6). The applicant was diagnosed as having a genetically determined bilateral sensori neural hearing loss which predated the acoustic shock. Dr Julie Thomason, a Senior Audiologist with the Neurosensory Unit of Queensland Hearing Aids and Audiological Services prepared a report dated 28 September 2004 which states that the applicant has “a bilateral symmetric mild to moderate sensori neural hearing loss”. On 29 September 2004, Dr Kevin Feely (Exhibit 7) compared the recent audiogram prepared by Dr Thomason and noted that there was no significant change to an audiogram of the applicant dated October 2002. He said “I see no evidence of damage from her recent noise exposure”. Hearing amplification was recommended but there is no evidence that the applicant has complied with this recommendation.
10. On 10 December 2004, the applicant was cleared to return to work on a graduated basis. On 13 December 2004, the applicant sought treatment for the first time from her general practitioner for anxiety and stress. Again on 24 January 2005 she made a further consultation but no treatment was prescribed as she chose alternative medicine treatments at that time.
11. On 24 December 2004 the applicant was offered a position in a Telstra shop. The applicant refused to take up that position. She said that many employees did not like to work in that Telstra shop and in addition, while she had previously had sales experience, she did not like face to face sales.
12. On 10 January 2005 the applicant lodged a claim for Workers’ Compensation benefits for stress and anxiety associated with the screech. The respondent submitted that no treatment has been sought since January 2005 based on documents obtained from her general practitioner under a summons.
13. On 30 March 2005, Dr Samuell (Psychiatrist) advised in a report that the applicant had no psychiatric illness and had not been psychologically injured. As a result, her claim was denied for stress on 31 March 2005.
14. On 11 April 2005 the applicant requested reconsideration of that decision. She sought a referral to a psychiatrist Dr Chris Martin from her general practitioner. Dr Martin saw Ms Ross and advised in a report dated 16 May 2005 (exhibit 4) that Telstra had offered re-training for a position in a Telstra shop but she does not wish to take up that position. He said:
“It became clear that what Lorraine really wants to do is leave the organisation and retire, but that her pride and independence which have served her so well over many decades do not allow her to take the initiative and severe the connection with Telstra as she would see this as a failure…
In the second interview we focused more on the issue of her future at work, weighing up the positive and negative aspects of various courses of action. It appears at this stage, that she clearly wishes to leave and there were all kinds of potential benefits to this option with very few negatives. Nevertheless, she is finding it difficult to initiate this course of action.”
15. Dr Martin referred to Ms Ross describing some symptoms of panic attacks and depressive symptoms and prescribed medication for her.
16.On 31 May 2005, the determination of the 31 March 2005 was affirmed (T31)
17. Much of the evidence in relation to that decision and evidence at the hearing of this matter before the Tribunal confirmed the report of Dr Jill Reddan dated 3 May 2006 (exhibit 2). In particular, Dr Reddan’s evidence was inter alia:
(a)that the alternative duties are the real issues underlying her claim rather than the effects of the screech. However, she was a bit concerned about having to use a headset again although she denied being terrified of using a headset (page 3 of the report);
(b)her mental state examination did not reveal any impairment and that her judgment was not grossly impaired (pages 10 & 11);
(c)Dr Reddan referred to the incapacity that Ms Ross suffers and said that the degree of impairment was only of a mild degree. She further stated that “Ms Ross was not rendered incapable of any of the activities of daily living”. In relation to recovery from this incident, Dr Reddan stated that “Ms Ross recovered from the adjustment disorder as should be expected and I would estimate that she suffered from the condition for approximately five months. She is no longer suffering from any psychiatric disorder. In summary her progress is consistent with the natural history” (page 12);
(d)Dr Reddan also agreed with the report of Dr Chris Martin. In addition she says:
“I would tend to agree with Dr Martin that Ms Ross had difficulty in acknowledging, probably to herself first, that she was obstructing any return to her usual duties. She acknowledged at interview that there is a question really as to when she would have left Telstra in any event, as she married in August 2005 and her husband has essentially retired and she had available to her an interesting and active lifestyle away from work.” (page 14).
Findings of Fact
18.The following findings of fact are made:
(a)the applicant experienced an acoustic incident whilst employed by Telstra;
(b)there is no evidence that this incident was ever reported as there is no record available;
(c)the applicant had a previously existing hearing loss;
(d)the applicant suffered anxiety and stress for a period of time following the incident;
(e)Telstra endeavoured to provide considerable effort in facilitating a return to work for the applicant and in endeavouring to find alternative work, the applicant has decided not to avail herself of the offers made;
(f)Based on the available medical evidence, no psychiatric illness can be attributed to the “screech” experienced.
The Law and its Application
19. The Tribunal has considered all of the evidence and all of the statutory and case law which has been submitted to the Tribunal.
20. The relevant legislation has been outlined previously. The Tribunal has considered all of the evidence and finds that there was a pre-existing hearing loss and there has been no significant worsening of that condition. There might also be tinnitus but no evidence was offered to relate that to the acoustic incident.
21. The applicant did not seek assistance for some time following the acoustic incident. The Tribunal however, has the benefit of a number of psychiatric reports in relation to the applicant and the Tribunal finds the reports of Dr Reddan and Dr Martin consistent and credible and that the applicant does not suffer from a psychiatric condition and has not been adversely affected psychologically by the acoustic incident.
22. The applicant submitted that it was not the “screech” that was upsetting her or that it was the underlying issue of her complaint. It was about how she was treated by Telstra. She further told the Tribunal that she agreed that she needed hearing amplification to do her job, but Telstra would not pay for it. While this was subject to some conjecture as to whether this was merely her perception or that she had a reasonable basis for that conclusion, the fact is that even if Telstra had provided the equipment, she made it clear that she was not going to return to that area of work again. She claimed that she was particularly concerned about what the effects could be if she had a further acoustic incident, especially at her age.
23. Counsel for the Respondent also argued that an applicant may believe a condition arose out of work and therefore believe that the injury is compensable. Counsel referred to Kirkpatrick v Commonwealth of Australia (1985) 9 FCR 36 at 39 where the Full Court of the Federal Court said in this context:
“It may be that a person’s disability has nothing to do with work or any injury at work”. The Court said “and thinking cannot make it so. The fact that the applicant thought his disability arose out of his work and therefore thought it compensable, may have been potent factors in the development of his neurosis. But these were thoughts in his mind. They did not mean that his employment actually was a contributing factor in the development of his neurosis”.
In other words, the Court was referring to circumstances where an applicant may focus on the cause of a psychological impairment being attributable to work factors when in fact, they may have been determined by other factors.
Conclusions
24. The medical evidence is unequivocal as to the extent of damage by the acoustic incident as is the psychiatric incident. The applicant has not satisfied the Tribunal that there are any real compensable conditions resulting from the acoustic incident.
25. There is a stress condition and the applicant has been a long serving and diligent employee of Telstra. However, the stress condition relates to the inability of the applicant to accept her condition, and her employer seems to have made reasonable attempts to offer alternative employment. They may not have been what she would have liked but they were reasonable, particularly in a regional location.
26. In all the circumstances, the Tribunal finds that the applicant’s circumstances fall within the exclusionary provisions of the definition in section 4 and that the respondent is not liable under section 14 of the SRCA. The decision under review is affirmed.
I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy, Member
Signed: J Lauriston
(for) Legal Research Officer
Date/s of Hearing 24 July 2006
Date of Decision 24 August 2006
The Applicant was self represented
Counsel for the Respondent Mr B Dube
Solicitor for the Respondent Sparke Helmore
0
2
0