Susan Morgan and Comcare

Case [2013] AATA 490

[2013] AATA 490 

Division GENERAL ADMINISTRATIVE DIVISION

File Numbers

2011/1744, 2012/1436

Re

Susan Morgan

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

Miss E A Shanahan, Member
Date 12 July 2013
Place Melbourne

The Tribunal affirms the decisions under review. 

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

Miss E A Shanahan, Member

Compensation – call centre operator – dysphonia – overuse or disuse of voice – stress – injury or ailment – arising out of or in the course of employment – any significant contribution by employment – cause of the dysphonia – persisting symptoms – minor pathophysiological changes secondary to dysphonia – decision affirmed

Legislation

Safety, Rehabilitation and Compensation Act 1988

Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007

Cases

Comcare v Canute (2005) 148 FCR 232
Comcare v Sahu-Khan [2007] 156 FCR 536
Etheridge v Comcare [2006] FCAFC 27

Wiegand v Comcare (No 2) (2007) 94 ALD 154

REASONS FOR DECISION

Miss E A Shanahan, Member

12 July 2013

  1. Ms Morgan lodged two claims for compensation with Comcare: the first on 22 September 2010 (File No 2011/1744); and the second on 23 September 2011 (File No 2012/1436). The claims were for functional dysphonia due to voice overuse in her employment as a call centre operator with the Australian Securities and Investments Commission (ASIC).  The 2010 claim was denied by Comcare on 5 January 2011 and this was affirmed on internal review on 20 April 2011.  The 2011 claim was also unsuccessful. Comcare denied liability on 16 December 2011 and this decision was affirmed on 16 February 2012, after an internal review.

  2. Ms Morgan subsequently lodged applications with the Administrative Appeals Tribunal (the Tribunal) for review of both decisions.  The substance of the two claims is the same and they will be considered together.  The application for review of the 2010 claim was lodged with the Tribunal on 4 May 2011 and that relating to the 2011 claim was lodged with the Tribunal on 23 February 2012.

  3. Ms Morgan was represented by Mr Joel Harris of counsel, instructed by Maurice Blackburn solicitors. Comcare was represented by Ms Kathy Dowsett of counsel, instructed by Sparke Helmore. In accordance with s 37 of the Administrative Appeals Tribunal Act 1975, Comcare lodged two sets of Tribunal documents, one in each matter, which were assigned the Exhibit numbers R1 and R2.  Both parties tendered further documents which are listed in the appendix to this decision. 

  4. Ms Morgan, Mr Malcolm Baxter, Mr Ben McInnes and Mr Robin Hooper gave oral evidence before the Tribunal. Doctor Paul Brougham and Mr Glen Watson gave evidence by telephone. 

    BACKGROUND TO THE APPLICATION

  5. Ms Morgan has worked as a full-time call centre operator for ASIC since 2003.  She worked a five-day rotating roster and undertook overtime as required on average for 1.67 hours per week.  In late May 2010 she developed what was termed a voice disturbance. Ms Morgan attributed this to greater than usual overtime hours of talking on the telephone. On 22 September 2010, Ms Morgan lodged a claim for…

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AGLC
Susan Morgan and Comcare [2013] AATA 490
Case
[2013] AATA 490
Decision Date

CaseChat Overview and Summary

The case of Susan Morgan against Comcare involved a dispute over whether Ms Morgan's functional dysphonia, a voice disorder, was attributable to her employment with the Australian Securities and Investments Commission (ASIC). Ms Morgan, a call centre operator, claimed her condition arose from overwork and extended periods of speaking on the phone, while Comcare argued it was due to a respiratory tract infection. The matter was heard by the Administrative Appeals Tribunal (AAT).

The legal issues before the AAT included determining whether Ms Morgan's functional dysphonia was an injury or an ailment as defined under the Safety, Rehabilitation and Compensation Act 1988. If it was an injury, the Tribunal needed to decide if it arose out of or in the course of her employment. If it was an ailment, the Tribunal had to assess whether it was significantly contributed to by her employment. The AAT also considered whether Ms Morgan's employment involved reasonable administrative action taken in a reasonable manner.

The AAT concluded that Ms Morgan's employment did not contribute to a significant degree to her dysphonia. The Tribunal found that there was no structural abnormality in Ms Morgan's vocal cords until a year after the onset of her symptoms, there was limited resolution of her dysphonia following changes in her duties, and her perception of overwork was not substantiated by electronic records. The Tribunal also observed that Ms Morgan's voice returned to normal when she was distracted, indicating the psychogenic nature of her condition.

The AAT affirmed the decision of Comcare denying Ms Morgan's claim for compensation. It held that Ms Morgan's dysphonia was not an injury arising from her employment but rather an ailment contributed to by her psychogenic misuse of her voice, which was not significantly related to her employment duties. The Tribunal's decision was based on the evidence presented, including medical reports and testimonies from various specialists and Ms Morgan herself.

Orders

Orders of the court

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Background

Background to the litigation

Ms Morgan, Mr Malcolm Baxter, Mr Ben McInnes and Mr Robin Hooper gave oral evidence before the Tribunal. Doctor Paul Brougham and Mr Glen Watson gave evidence by telephone. BACKGROUND TO THE APPLICATION Ms Morgan has worked as a full-time call centre operator for ASIC since 2003. She worked a five-day rotating roster and undertook overtime as required on average for 1.67 hours per week. In late May 2010 she developed what was termed a voice disturbance. Ms Morgan attributed this to greater than usual overtime hours of talking on the telephone. On 22 September 2010, Ms Morgan lodged a claim for compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) (Exhibit R1, T3-4, p19). Comcare denied liability on the basis that her functional dysphonia was due to an upper respiratory tract infection. In May 2010 Ms Morgan developed pain in her throat and her voice became high pitched, of poor volume. She eventually lost her voice. She had worked three consecutive days between 17 and 21 May 2010 involving more than usual overtime. On 28 May 2010 Ms Morgan’s general practitioner, Dr Gunawardana of the Breed Street Medical Clinic, diagnosed viral laryngitis based on the symptoms of a sore throat, fever and loss of voice. Examination by Dr Gunawardana had revealed that Ms Morgan had a reddened throat. Ms Morgan was a smoker of up to 15 to 20 cigarettes per day but had reduced this to five to six per day before the onset of the dysphonia (Exhibit R11). Dr Gunawardana recorded in the clinical notes that Ms Morgan had ceased smoking on 28 May 2010. As Ms Morgan’s hoarseness of voice persisted, Dr Brougham of the Breed Street Medical Clinic, diagnosed a lower respiratory tract infection on 6 June 2010 (Exhibit R11), having obtained the additional history that Ms Morgan had a persistent cough and had to sit up in order to sleep. At this time, Dr Brougham noted there was no reddening of Ms Morgan’s throat but there was bilateral enlargement of the submandibular lymph nodes. Antibiotics were prescribed. As there was no improvement Ms Morgan was referred to an Ear, Nose and Throat (ENT) surgeon, Mr Glen Watson, on 2 July 2010 for a laryngoscopy. Mr Watson performed a direct laryngoscopy on 15 July 2010 (Exhibit R1, T10). This did not reveal any abnormality of the nose, pharynx or larynx but it was noted that when Ms Morgan attempted to speak, both vocal chords were in a contracted state. Mr Watson diagnosed functional dysphonia and arranged for Ms Morgan to have voice therapy with a speech therapist Miss Chiara Wall. Mr Watson attributed Ms Morgan’s dysphonia to her recent respiratory tract infection that may have been compounded by Ms Morgan’s extended shift work in the call centre and perhaps the stress of not being able to maintain her employment. It was not until 22 October 2010 that Dr Gunawardana provided a medical certificate recommending that Ms Morgan’s telephone time be reduced to 30 minutes followed by rest periods.

Evidence

Evidence Before The Court

Following several return to work programs restricting Ms Morgan’s telephone talk times and hours of work, Ms Morgan is now working full-time dealing with email enquiries and the registration of company names. This involves only short duration telephone calls usually to internal numbers within ASIC.ORAL EVIDENCE BEFORE THE TRIBUNALMs Susan Morgan Ms Morgan’s evidence has been summarised under BACKGROUND TO THE APPLICATION. She also confirmed that her normal call centre duties required her to speak on average three to five hours on the telephone. Ms Morgan agreed that in August and September 2011, when she again lost her voice, she was not performing more telephony than that limited by the return to work program. Ms Morgan said she had used her sick leave, flexi time, annual leave and taken leave without pay when she was unable to work. The Tribunal enquired as to whether Ms Morgan hobby-farmed on the five acres that surrounded her home, as mentioned in her statement (Exhibit A1). Ms Morgan advised that in fact the farm was 5000 acres. The Tribunal notes that she told Dr Gras it was 500 acres. Regardless of its actual size, it is a substantial land holding and used for the farming of pigs, cattle and crops. Mr Malcolm Baxter Mr Baxter is an ENT specialist with a major interest in voice. Mr Baxter saw Ms Morgan in late December 2011, on referral by Mr Glen Watson (Exhibit R2, T9). On the day of consultation Mr Baxter described Ms Morgan’s voice as being slightly strained. Mr Baxter diagnosed overuse dysphonia which he attributed to Ms Morgan’s increased telephone work at the ASIC call centre. Video stroboscopy performed by Mr Baxter revealed inflammation with slight mid cordal swelling and slight aperiodicity of vibration. Mr Baxter recommended that Ms Morgan’s telephone times be limited to three hour sessions per day with one hour break between telephone duties. He advised that speech therapy should be continued. Mr Baxter reviewed Ms Morgan on 8 June 2012 (Exhibit A3) at which time her voice was much improved as she does hardly any talking at all. Examination of Ms Morgan’s vocal cords revealed slight inflammation and swelling but vocal cord movement was normal. Mr Baxter considered that the dysphonia Ms Morgan experienced was contributed to by her working eight hours regularly and on three days in May 2010, working up to 11 hours per day. Mr Baxter had apparently been unaware of the medical details leading to Ms Morgan’s diagnosis of laryngitis in May 2010. He considered the term laryngitis was misused as it was applied not only to bacterial and viral infections but also to non-infective conditions (such as overuse, smoking and allergies). Mr Baxter provided a definition of functional dysphonia as being due to overuse or misuse of voice production. In his opinion the hours Ms Morgan had worked in May 2010 contributed to the onset and aggravation of her dysphonia. Mr Baxter saw Ms Morgan on 12 October 2012 for the last time. He found her to be much improved, having not worked on the telephones for the past six months. Examination on this occasion showed minimal swelling of one cord and no evidence of inflammation. Mr Baxter considered that Ms Morgan required no further treatment.

Decision

Reasons for decision

The Tribunal has come to its conclusion that Ms Morgan’s employment did not contribute to a significant degree to her dysphonia for the following reasons:(a)there was no structural abnormality detected in Ms Morgan’s vocal cords until June 2011, some 12 months after the onset of dysphonia;(b)there was limited resolution of Ms Morgan’s dysphonia following major changes in her duties and telephony time;(c)Ms Morgan’s perception of overwork and overuse of her voice beyond her normal times is not substantiated by electronic records; and(d)the reported and documented resumption of normal pitch and volume of Ms Morgan’s voice when she is distracted was verified by the Tribunal’s observance of her normal speech in terms of pitch when subjected to the stress of cross‑examination. DECISION The Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

Ms Dowsett raised the same arguments in relation to Ms Morgan’s 2011 claim and Comcare’s decision of 16 February 2012, which denied liability. Ms Dowsett argued that despite the changes in appearance of Ms Morgan’s vocal cords described by Mr Watson in June 2011 and Mr Baxter in December 2011, those changes were 12 and 18 months respectively after the onset of her dysphonia. These late onset pathological changes were, Ms Dowsett submitted, an ailment attributable to Ms Morgan’s continuing misuse of her voice despite speech therapy and restriction, and then cessation, of her telephony duties. Ms Dowsett contended that Ms Morgan’s misuse of her voice was psychogenic in nature and not related to overuse in the course of her employment. TRIBUNAL’S DELIBERATIONS The issues before the Tribunal are:·Whether Ms Morgan’s functional dysphonia is an injury or an ailment?·If an injury (as defined in the SRC Act) did it arise out of, or in the course of, her employment with ASIC? If so, did it result from reasonable administrative action taken in a reasonable manner in respect of Ms Morgan’s employment?·If an ailment (as defined in the SRC Act as a physical or mental disorder whether of sudden onset or gradual development) was it contributed to by a significant degree by Ms Morgan’s employment? Is Ms Morgan’s dysphonia an injury or an ailment? Ms Morgan has an 11 year history of recurrent upper respiratory tract infections and tonsillitis which on six occasions has been associated, time wise, with a loss or change in voice (dysphonia) lasting up to 10 days and in the last episode for 18 months. The episode of dysphonia leading to Ms Morgan’s 2010 claim for compensation occurred in the setting of a sore throat and mild fever of 37.5oC, as described by a general practitioner on 25 May 2010 (Exhibit R11). At review on 28 May 2010, Dr Gunawardana noted that Ms Morgan’s sore throat persisted as did the dysphonia but her fever had abated. On this occasion Ms Morgan’s throat was examined and described as being reddened, a finding usually indicative of infection. And indeed Dr Gunawardana diagnosed viral laryngitis. When the dysphonia persisted despite Ms Morgan’s absence from work for nine days, Dr Gunawardana referred her to an ENT surgeon, Mr Watson, for direct laryngoscopy (nasoendoscopy which allows direct visualisation of the vocal cords in the awake patient). Mr Watson, the treating ENT surgeon, did not find any structural abnormality in Ms Morgan’s vocal cords. However, he did observe her vocal cords to be in a contracted state (opposed to each other) when he directed her to attempt to speak. Nasoendoscopy performed by Mr Hooper in December 2010 revealed the absence of structural change and the presence of muscular tension (over contraction) of Ms Morgan’s vocal cords. Both Mr Watson and Mr Hooper, based on their endoscopy findings, diagnosed functional dysphonia and confirmed in their evidence before the Tribunal that they use the term functional to indicate a psychogenic aetiology for the muscle tension/contraction.