Susan Morgan and Comcare
[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 27Wiegand v Comcare (No 2) (2007) 94 ALD 154
REASONS FOR DECISION
Miss E A Shanahan, Member
12 July 2013
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.
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.
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.
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.
Ms Morgan benefited from the voice therapy but her progress was slow. In September 2010 she suffered a further bout of respiratory infection. She presented to her general practitioner with a sore right ear and cough productive of green sputum (Exhibit R11). At this time Ms Morgan was smoking six cigarettes per day.
Ms Morgan has a lengthy history of upper respiratory tract infections and tonsillitis, as recorded in the Breed Street Medical Clinic’s notes since 2002. On at least four occasions she had developed hoarseness of the voice lasting for several days.
Ms Morgan has tried to stop smoking on several occasions with the assistance of Zyban and Champix.
Ms Morgan was first diagnosed with Diabetes in 1996. As her Diabetes escaped control in 2007, she was commenced on insulin. Several medical practitioners have stated that her Diabetes makes her more susceptible to recurrent infection.
Ms Morgan had attended her general practitioner on 14 April 2010 as she was worried that a proposed alteration in the timing of her work shifts would impact on her blood glucose levels throughout the day. She attended again on 30 April 2010 and was noted to have a rising hba1c (a blood test indicating the level of control of Diabetes). Ms Morgan attributed this escape from control of her Diabetes to being stressed and overworked. Her insulin dosage was increased.
Ms Morgan and her husband live on a farm of either 500 or 5000 acres (variously reported). It would appear that their farm involves cattle rearing, pig breeding and crop growing. The medical records of the Breed Street Medical Clinic make reference to pigs, cattle and ploughing. In February 2008 the general practitioner recorded in the notes that Ms Morgan was extremely busy working on the farm as well as being employed full‑time with ASIC.
Despite all her efforts, the Breed Street Medical Clinic records state that Ms Morgan was still smoking in mid-2012 when a further course of Champix was prescribed.
Ms Morgan was reviewed by Mr Watson on 10 June 2011 (Exhibit R13). At this review he repeated the nasendoscopy and noted that Ms Morgan was developing a cord nodule and swelling. Mr Watson attributed this to the tension Ms Morgan was putting on her vocal cords by speaking with a very high pitch. During this consultation, Mr Watson noted that on several occasions Ms Morgan broke into absolutely normal voice. She was again advised to continue with speech therapy. Mr Watson agreed with Dr Gras’ recommendation that Ms Morgan only work four days on the telephones, for three hours per day with no telephony on Wednesdays.
Ms Morgan attended Ms Wall, a speech therapist, on a two to three weekly basis for several months in 2010. Ms Wall described Ms Morgan’s progress as slow and attributed this to her smoking and possibly stress-related factors, either personal or work‑related. Ms Wall recommended that Ms Morgan apply for alternative roles at ASIC (such as mailroom duties) where use of her voice would be minimal.
Ms Morgan subsequently transferred her voice therapy to Ms Tai Balfour (Klimas), a speech therapist, practising in Sale. Ms Balfour first saw Ms Morgan on 31 January 2011 (Exhibit R4). Ms Morgan was then smoking 10 plus cigarettes per day, and working one hour a day on telephones with the remainder of her time in the mailroom. Ms Balfour noted strained phonation and changes of pitch during the consultation.
Following the lodgement of Ms Morgan’s first claim for compensation (the 2010 claim), ASIC sought the opinion of Mr Robin Hooper, ENT surgeon. Mr Hooper assessed Ms Morgan on 18 October 2010 some five months after the onset of her dysphonia. Ms Morgan described her speech problems as a weakness of her voice that faded with use. Mr Hooper performed nasoendoscopy to examine Ms Morgan’s vocal cords. He described them as normal in appearance and appearing to move normally on phonation (Exhibit R1, T9).
Based on the history given and his findings on examination, Mr Hooper diagnosed functional dysphonia commencing in May 2010 after vocal strain from working on telephones for 49 hours over five days. Mr Hooper considered Ms Morgan’s (then current) status was not typical of vocal strain, raising the possibility that the persisting dysphonia was psychogenic. Mr Hooper advised a structured return to call centre duties over a period of six to eight weeks. This was despite there being no pathophysiological reason why, in his opinion, Ms Morgan could not resume full-time telephone duties. In the event that Ms Morgan was unable to increase her telephone duties, Mr Hooper recommended evaluation by Mr Malcolm Baxter, an ENT surgeon with an interest in voice problems.
Ms Morgan has denied that she told Mr Hooper that she worked 49 hours in the week of 17 to 21 May 2010 on telephones. Ms Morgan said she had observed him record this and had tried to correct his mistake. However, Mr Watson, Ms Wall and Ms Balfour all recorded that Ms Morgan had given a history of working 49 to 50 hours on telephones in that week.
The actual time that Ms Morgan worked over those five days was 43 hours with a total telephone time of 21 hours and 39 minutes. This is compared to 21 hours and 59 minutes in the week of 10 to 14 May 2010, and 20 hours and 14 minutes in the week of 3 to 7 May (Exhibit R8). [These figures are rounded to the nearest minute].
In September 2011, Ms Morgan’s voice again deteriorated. Ms Morgan attributed this to an increase in her telephony hours to four hours per day from 1 September, in accordance with the return to work program recommended by Dr Gras. Ms Morgan was seen again by Mr Hooper, who provided a report on 30 November 2011 (Exhibit R2, T8). On this occasion Mr Hooper described Ms Morgan’s voice as husky (i.e. hoarse) and her vocal cords as being reddened. He noted Ms Morgan had been engaged in telephony duties three hours per day, four days a week when her voice deteriorated. Mr Hooper diagnosed vocal strain related to her employment with ASIC.
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 TRIBUNAL
Ms 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.
In his evidence before the Tribunal Mr Baxter indicated that the call times Ms Morgan logged in May 2010 were sufficient to cause overuse dysphonia, although there was seldom a single cause of such a condition. Thus, any existing upper respiratory tract infection may have contributed to, and precipitated, the dysphonia. Mr Baxter did not consider that the overtime hours performed by Ms Morgan in May 2010 were a major factor but rather it was her overall voice use that was relevant. Mr Baxter accepted that Ms Morgan’s vocal cords were normal in July 2010 and in October 2010. However, he stated that the inflammatory changes that he visualised were a manifestation of voice dysfunction.
The Tribunal, having noticed fluctuations in Ms Morgan’s voice pitch and volume when she gave oral evidence, asked Mr Baxter the significance of this fluctuation, particularly when Ms Morgan was stressed during cross-examination by Ms Dowsett. Mr Baxter explained that stress reduces vocal cord muscle tension and thereby decreases the pitch of the voice. He also said it was possible for people to intentionally intermittently change their pitch. In response to a question from Mr Harris, Mr Baxter opined that Ms Morgan’s dysphonia was an injury associated with pathophysiological change.
Dr Paul Brougham
Dr Brougham is now is Ms Morgan’s primary care doctor. He was unable to recall the details of Ms Morgan’s presentations and referred the Tribunal to the Breed Street Medical Clinical records (Exhibit R11). Dr Brougham said that it was his impression that in September 2011 when Ms Morgan again lost her voice, it was due to intercurrent infection. However, Dr Brougham deferred to the opinions of the ENT surgeons.
Mr Ben McInnes
Mr McInnes provided an undated statement received at the Tribunal on 17 January 2013 (Exhibit R12). Mr McInnes is a team leader in the ASIC call centre and has been Ms Morgan’s supervisor since September 2011 with responsibility for the supervision of Ms Morgan’s return to work programs. These had been devised in consultation with Occupational, Health and Safety (OHS) managers and Ms Morgan but were not signed by the parties, as they were sent by email from the OHS Adviser.
Until 2011 Mr McInnes was a client service officer (CSO) at ASIC, a position he held for nine years. Mr McInnes estimated that 50 per cent of a CSO’s telephone time involved talking and the remaining 50 per cent listening. While ASIC had strictly adhered to the return to work program and particularly the restricted talk times, he had regularly spoken to Ms Morgan and reminded her not to talk to colleagues during her designated rest periods. Mr McInnes said that talking between operators and sharing information was neither encouraged nor necessary and should not contribute to an employee’s work talk time. In his evidence before the Tribunal, Mr McInnes said that he had noted that in meetings with Ms Morgan her voice was high pitched and strange but would suddenly become normal.
Mr Glen Watson
Mr Watson is an ENT surgeon. He has provided six reports in his capacity as the treating specialist (Exhibit R1, T10, PT10, T11; Exhibit R13; Exhibit R14 and Exhibit R15). Mr Watson was firmly of the opinion that Ms Morgan’s dysphonia was functional by which he meant non-organic, there being no pathophysiological change, only vocal cord muscle tension. He noted that when he distracted Ms Morgan she spoke normally. Mr Watson stated that in his experience voice overuse, in what he termed voice users, recovered with rest whereas Ms Morgan’s persisted despite normal cord appearance. Mr Watson believed this suggested that Ms Morgan’s dysphonia was psychosomatic.
In his evidence before the Tribunal, Mr Watson said he had referred Ms Morgan to Dr Baxter for a second opinion and also as Mr Baxter’s clinic employed a team of speech therapists. Mr Baxter’s findings 18 months after the onset of Ms Morgan’s dysphonia did not surprise Mr Watson as in the intervening 18 months, in his opinion, she had continued to abuse her voice by speaking in a funny way and by smoking.
Mr Watson considered infection could be a precipitating factor in dysphonia but that this did not account for continuing hoarseness. Mr Watson said vocal therapy was the treatment of choice as it taught Ms Morgan how to relax her vocal cords and provided her with psychological support.
Mr Robin Hooper
Mr Hooper saw Ms Morgan in November 2010 (Exhibit R1, T9) and again in November 2011 (Exhibit R2, T8). Based on the history he was given by Ms Morgan on the second occasion, Mr Hooper diagnosed voice strain related to overuse. At the first consultation in 2010 he had not been aware of any infective process preceding the onset of the dysphonia and had understood that Ms Morgan had worked extended overtime hours for one week in May 2010. At that time Mr Hooper diagnosed functional dysphonia of psychogenic origin. Mr Hooper did not change his diagnosis when later informed that Ms Morgan’s claimed working of 49 and a half hours in a week, with some days said to involve 12 and a half hours on the telephone, was incorrect. This did, however, disturb him in regard to Ms Morgan’s creditability.
In his evidence to the Tribunal, Mr Hooper said that at the first consultation in 2010 he had been of the opinion that Ms Morgan was exaggerating her condition. This had led him to consider her dysphonia to be hysterical. However, by November 2011 Ms Morgan’s voice was low in pitch, husky and strained and therefore compatible with overuse dysphonia.
Mr Hooper informed the Tribunal that the different terminologies, functional, overuse and muscle tension dysphonia are all used to convey functional, as in non-organic, dysphonia as they show no structural abnormality. He described video stroboscopy as a relatively new technique, having come into use over the past five years, and that there are questions as to its reproducibility. Mr Hooper explained that the presence of aperiodicity in cord vibration, as seen on Ms Morgan’s stroboscopy, lessens the strength of a diagnosis of functional dysphonia. [The Tribunal notes that Mr Baxter described the presence of slight aperiodicity of vibration of Ms Morgan’s cords 18 months after the onset of her dysphonia.]
DOCUMENTARY EVIDENCE BEFORE THE TRIBUNAL
Ms Michelle Sen
Ms Sen provided a statement dated 17 January 2013. Ms Sen is the Manager, Service Quality, at the ASIC Client Contact Centre having previously been a CSO and team leader. Ms Sen provided the electronic data sheets relating to Ms Morgan’s work performance. These record the employee’s log on and log off times and their timed activities during the working day.
At paragraph 18 of Ms Sen’s statement it states:
...
When compared to the average handling times (AHT) achieved by other CSOs, the applicant was underperforming in her role, as a result of which she placed on a coaching plan between April 2010 and June 2010 to help her improve her results. The Key Performance Indicators Reference Guide, and the coaching plan, a copy of which is attached and is marked ‘MS2’, indicates that the applicant was having difficulty meeting ASIC expectations.
...
Ms Sen’s statement also confirmed that during Ms Morgan’s return to work programs in August and September 2011, Ms Morgan had never exceeded telephony work greater than three hours per day. The detailed data attached to Ms Sen’s statement, recording incoming and outgoing calls, indicate a large number of relatively long outbound calls. CSOs are permitted to make personal outgoing calls and the actual nature of outgoing calls (that is whether they are personal or work related) is not possible to delineate. The history given by Ms Morgan to Mr Hooper of spending over four hours a day on the telephone and taking 27 calls in one hour in early September 2011 is not substantiated by ASIC’s electronic records.
Dr David Gras
Dr Gras is an occupational physician who provided a work capacity assessment of Ms Morgan at the request of her employer ASIC (Report 30 May 2011, Exhibit R9). Dr Gras found Ms Morgan to be in good health and physically active, assisting her husband in the running of their farm and walking two to three kilometres per day. Dr Gras noted that Ms Morgan’s Type I insulin dependent Diabetes (first diagnosed in 1996) was said to be well controlled. He also noted the reports of Mr Watson and Mr Hooper and that Ms Morgan’s voice recovered during weekends when she was not working.
Dr Gras advised that Ms Morgan work three hours per day on telephones for four days per week, with a telephony break on Wednesdays. This regime was to be followed for six weeks with a return to full-time work in three months. He also advised Ms Morgan to reduce her smoking from (her then level of) 10 to 15 cigarettes per day.
RELEVANT LEGISLATION
Sections 5A and 5B of the SRC Act define the terms injury and disease as follows:
5ADefinition of injury
(1)In this Act:
injury means:
(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.
(2)For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a)a reasonable appraisal of the employee’s performance;
(b)a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c)a reasonable suspension action in respect of the employee’s employment;
(d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f)anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
5BDefinition of disease
(1) In this Act:
disease means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
Section 14 of the SRC Act provides for compensation for injuries:
14Compensation 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.
SUBMISSIONS
Mr Harris submitted that if Ms Morgan’s dysphonia was an injury it arose out of, and in the course of, her employment with ASIC. Alternatively, if the condition was a disease he contended that it was contributed to significantly by Ms Morgan’s employment and in particular, working 44 and a half hours in the week of 17 to 24 May 2010, when the number of telephone calls she dealt with were greater than those of the preceding week.
Mr Harris contended that the Tribunal could not be satisfied on the medical evidence that Ms Morgan’s dysphonia was preceded by an upper respiratory tract infection. Nor was there a history of work-related stress or anxiety, Ms Morgan having said she enjoyed her work.
Mr Harris further submitted that the overall picture was one of a physical injury, namely muscle tension strain, which eventually led to persistent dysphonia. He likened Ms Morgan’s dysphonia to that of a minor back injury which resulted in a chronic pain syndrome. Mr Harris relied primarily on the opinions of Mr Baxter and Mr Hooper who, he said, had connected Ms Morgan’s employment to the development of dysphonia even if her telephony work only triggered the injury. Mr Harris stressed that both surgeons were of the opinion that there was no threshold, in terms of the duration of voice use, necessary to give rise to dysphonia.
Mr Harris contended that Mr Watson’s opinion should be given lesser weight as he is not as experienced as Mr Hooper or Mr Baxter. He also did not have the same diagnostic equipment as Mr Baxter.
Mr Harris estimated Ms Morgan’s out of pocket medical costs at approximately $4,000.
Ms Dowsett addressed the two applications separately. Ms Dowsett contended that the 2010 claim for compensation for functional dysphonia was a disease, relying on the decision of the Full Court of the Federal Court of Australia in Etheridge v Comcare [2006] FCAFC 27, wherein the Court said at paragraph 35:
... an injury [was] ... a sudden or identifiable physiological change ...
As Mr Watson’s examination of Ms Morgan’s vocal cords by direct laryngoscopy (some six weeks after the onset of Ms Morgan’s symptoms) indicated her vocal cords were normal, Ms Dowsett contended there was no pathophysiological change present consistent with an injury.
Ms Dowsett submitted that Ms Morgan’s dysphonia was an ailment in accordance with s 5B of the SRC Act and therefore liability was only attracted if her employment had contributed to the ailment to a significant degree. ASIC’s electronic data recording Ms Morgan’s log on and log off times did not support the contention that Ms Morgan’s work resulted in voice overuse. Ms Dowsett argued that had overuse been a contributory factor, Ms Morgan’s voice should have improved with voice rest. Ms Dowsett contended that Ms Morgan’s perception that she had overused her voice was ill-founded.
Ms Dowsett relied on the opinions of Mr Watson and Mr Hooper, both of whom had identified a psychogenic cause. Ms Dowsett submitted that as Ms Morgan had a slightly elevated temperature (37.5o C) on 25 May 2010 this supported an infective basis for her hoarse voice, which had not been excluded by any of the ENT surgeons. In addition, Mr Watson opined that the thought of talking a lot could lead to muscle spasm/tension and that an individual’s personality could contribute to the persistence of dysphonia.
Ms Dowsett submitted that while Ms Morgan’s telephony duties may have had some effect, the contribution was not significant.
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.
Had Ms Morgan’s dysphonia been due purely to overuse it was, according to Mr Watson and Mr Hooper, to be expected that there would be objective evidence of overuse. That is, there would be physical signs in the form of inflammation or nodule formation, at the time of Ms Morgan’s presentation.
The Tribunal acknowledges Mr Baxter’s opinion that Ms Morgan’s dysphonia is an injury caused by overuse and therefore contributed to by her employment. However, Mr Baxter did not see Ms Morgan until 18 months after the onset of her symptoms by which time misuse of her voice by Ms Morgan could have resulted in pathophysiological changes to her vocal cords.
Based on the medical evidence before the Tribunal and in the absence of any pathophysiological changes in Ms Morgan’s vocal cords in 2010, the Tribunal determines that Ms Morgan’s dysphonia is an ailment and not an injury for the purposes of the SRC Act.
The Tribunal has elected to use the term dysphonia although Ms Morgan’s general practitioners’ notes refer to hoarseness of the voice. Ms Morgan’s voice was not described as hoarse, that is husky, until her attendance on Mr Hooper in November 2011. In December 2011 Mr Baxter described Ms Morgan’s voice as slightly strained. Ms Morgan herself says the problem with her voice has been either a loss of voice or that her voice was high pitched and of poor volume.
The reason for, or cause of, any psychogenic contribution to Ms Morgan’s dysphonia is unclear. In 2008 Ms Morgan had expressed her fear that she may lose her job at ASIC. The Breed Street Medical Clinic notes record that she felt overworked and stressed dealing with both her full-time duties at ASIC and her work on the family farm. In March 2010 Ms Morgan was counselled regarding her work performance as she did not meet the average performance of CSOs in the ASIC call centre, her talk times being excessive. She was required to undertake a coaching course from April to June 2010 (inclusive) to improve her performance.
That this caused Ms Morgan concern is documented in the Breed Street Medical Clinic records. At her consultation with her general practitioner on 14 April 2010, Ms Morgan expressed her worry that her new roster would impact negatively on her Type I Diabetes control. At another consultation on 30 April 2010, Ms Morgan attributed her poor Diabetes control to being stressed and overworked. The Tribunal notes that no psychiatric or psychological opinions have been provided or sought by either party.
Did Ms Morgan’s employment contribute to a significant degree to her dysphonia?
Having decided that Ms Morgan’s dysphonia is an ailment and not an injury, the Tribunal must turn its attention to whether or not her employment with ASIC contributed to a significant degree to her dysphonia.
The parties agreed that in the week 17 to 21 May 2010, Ms Morgan worked a total of 44 and a half hours and not the 49 or 50 hours recorded in the histories taken by various practitioners. Following the onset of her dysphonia, Ms Morgan was medically certified as unfit to work from 25 May 2010 to 6 June 2010. Subsequent certificates were provided by Ms Morgan’s treating general practitioners, stating that she could work but not perform any telephony duties. These work program instructions were said to have been followed until 16 August 2010.
The treating speech therapist, Ms Wall, had recommended that Ms Morgan work in the mailroom with minimal telephony. Certainly when she was seen by Mr Hooper on 18 October 2010, Ms Morgan was spending only half an hour per day in telephone duties with the rest of her work-time in the mailroom or dealing with emails.
Mr Hooper recommended that Ms Morgan return to her main function as a call centre operator gradually. Mr Hooper also provided recommendations as to the timing of any increase in Ms Morgan’s telephony work. This was based on his findings of normal vocal cords and normal vocal cord movement. The speech pathologist, Ms Wall, advised against such an increase over a short period of time.
In May 2011 Dr Gras, occupational physician, recommended a return to telephony work for three hours per day, four days per week. Dr Gras advised that a return to full-time hours should be possible within three months. This work program was accepted by ASIC. The data provided to the Tribunal indicates that the hours recommended by Dr Gras were adhered to and Ms Morgan agrees that this was the case.
In September 2011 ASIC, in line with Dr Gras’ recommendations, suggested that Ms Morgan increase her telephony hours from three to four hours a day, four days per week. On 6 September 2011, the Breed Street Medical Clinic notes record that Ms Morgan was under pressure to increase her work hours and that her voice was a little worse. On 16 September 2011 Ms Morgan’s voice deteriorated. On that day Ms Morgan reported that she had lost her voice again; it having been 90 per cent of normal until her work hours were increased. She claimed in her consultation with her general practitioner, Dr Thann, that on 16 September 2011 she had taken 30 telephone calls in two hours. Ms Morgan told Dr Thann that her employer was not following her return to work plan strictly, although in her evidence before the Tribunal she said that ASIC had in fact adhered to the requirements of the return to work program without variation.
The maximum hours of telephony achieved by Ms Morgan between 1 and 15 September 2011 were three hours and 41 minutes on the 8th of that month. On most days Ms Morgan’s talk time was between two and three hours (Exhibit R7).
Ms Morgan was certified as unable to perform any telephony duties from 16 September until early October 2011 and thereafter her telephone duties were to be reduced to one hour per day.
Mr Watson was again consulted and he referred Ms Morgan to Mr Baxter. Mr Baxter made a diagnosis of slight or mild inflammatory changes in Ms Morgan’s vocal cords, with some minor aperiodicity of vibration. No nodules were seen.
On 1 December 2011, Mr Baxter advised that Ms Morgan could only perform three, one hour sessions on the telephones per day with a one hour break between these on‑telephone periods.
Based on the medical evidence there have been two periods of maximal dysphonia associated with loss of voice. The first occurred in May 2010 and lasted until at least 1 November 2010. During this period, and despite the persistence of dysphonia, there was no underlying pathophysiological change in Ms Morgan’s vocal cords. Muscle contraction/tension was noted by Mr Watson in July 2010 but was absent in November 2010 when Mr Hooper performed a nasendoscopy.
In June 2011 Mr Watson reported swelling of Ms Morgan’s vocal cords and nodule formation. The presence of slight inflammation was confirmed by Mr Baxter on 1 December 2011, although the nodule had then resolved.
The initial episode of dysphonia never resolved completely. It had occurred in the setting of a mild upper respiratory tract infection sufficient to give rise to fever and reddening of Ms Morgan’s throat. Ms Morgan perceived the condition to be due to excessive overtime work. This was at a time when she reported being stressed as well as overworked and had been required to undertake a three month coaching course to elevate her work performance to the average level of her co-workers.
The second episode leading to dysphonia occurred on 16 September 2011 when Ms Morgan again claimed to be working excessive hours as part of her return to work program. Ms Morgan developed a further episode of upper respiratory tract infection on 28 September 2011.
Ms Morgan’s perception of excessive telephony times is not supported by ASIC’s electronically generated start/finish times and talk times. ASIC’s electronic data also do not correlate with the clinical history Ms Morgan gave to all three ENT surgeons.
Mr Baxter was of the opinion that Ms Morgan’s dysphonia is an injury due to overuse of her voice but also contributed to by her cigarette smoking and the recurrent upper respiratory tract infections. Mr Baxter was not able to explain Ms Morgan’s failure to improve with rest of her voice and speech therapy. He concluded that Ms Morgan’s employment had contributed materially to the development of dysphonia.
Mr Watson and Mr Hooper considered Ms Morgan’s dysphonia to be primarily psychogenic in origin and that her continuing misuse of her voice by speaking in a high pitched tone had resulted in the development of mild inflammatory changes. This had also resulted in swelling and short-lived nodule formation on one vocal cord. Both Mr Watson and Mr Hooper considered that Ms Morgan’s smoking and recurrent upper respiratory tract infections played a role in the development of her dysphonia.
Mr Watson and Mr McInnes (Ms Morgan’s supervisor) had noted, and reported, that on occasions Ms Morgan spoke normally in terms of pitch and volume. This variation in pitch and volume was observed by the Tribunal when Ms Watson gave her oral evidence. These changes were particularly obvious when Ms Morgan was cross-examined by Ms Dowsett and resulted in the Tribunal seeking an explanation of the change from each of the ENT surgeons when they gave evidence.
Both Mr Watson and Mr Baxter stated that such variation could be controlled by the individual. Mr Hooper and Mr Baxter advised that emotions such as anger relieve vocal cord muscle tension. This suggests or indicates that Ms Morgan’s dysphonia is dynamic as opposed to static, the latter being expected in the presence of pathophysiological or structural change in the vocal cords.
In accordance with s 5B(2) of the SRC Act, the Tribunal may take into account other factors when determining whether Ms Morgan’s aliment was contributed to, to a significant degree, by her employment at ASIC. The Tribunal considers the relevant factors in this matter are the duration of Ms Morgan’s employment (s 5B(2)(a)) and other matters effecting Ms Morgan’s health (s 5B(2)(e)).
Ms Morgan has a long history of recurrent upper respiratory tract infections. This may be related to her Type I Diabetes, as this condition renders the individual more susceptible to infection. On at least five occasions episodes of infection have been associated with dysphonia of duration ranging from two days to two weeks and most recently to over two years. Ms Morgan does display a predisposition to infective dysphonia with its attendant pathological cord changes but this does not translate to functional dysphonia with normal vocal cords.
As a call centre operator, Ms Morgan would fall into the category termed a voice user and thereby be more susceptible to developing dysphonia.
Exactly how much time Ms Morgan devotes to farming is unknown. Certainly the Breed Street Medical Clinic records refer to several farming related injuries sustained by Ms Morgan. The records also make reference to her being stressed by the combination of farm work and her full-time employment as a call centre operator. It may be that these stresses contributed to her dysphonia but medical evidence in support of such a deduction has not been educed.
All three ENT surgeons who have provided opinions and given evidence consider dysphonia to be of multifactorial origin and in Ms Morgan’s case have identified infection, psychogenic factors, smoking and her employment. Ms Dowsett conceded that Ms Morgan’s employment had contributed to her dysphonia but argued that the contribution was not significant and that Ms Morgan’s perception of overwork and overuse of her voice was not supported by ASIC’s records.
Mr Hooper and Mr Watson, based on their oral evidence, consider psychogenic factors combined with infection to be the major causes of Ms Morgan’s dysphonia and that the continued long-term misuse, as opposed to overuse, by Ms Morgan of her voice resulted in the development of mild pathophysiological changes in her vocal cords.
Mr Baxter only came to assess Ms Morgan 18 months after the onset of dysphonia and at a time when these mild pathophysiological changes were present. Mr Baxter was led to believe Ms Morgan was being encouraged by her employer to work on the phones as much as possible. This combination of history given and the findings on examination formed the basis of Mr Baxter’s opinion that Ms Morgan’s dysphonia was due to overuse and an injury, contributed to materially by employment. Mr Baxter did not commit to the use of the term a significant contribution.
When Ms Morgan’s dysphonia is viewed over the entire period from April 2010 to the present, the Tribunal accepts the oral evidence of Mr Hooper and Mr Watson that psychogenic factors were the dominant cause of Ms Morgan’s ailment. The Tribunal also finds that the ailment was perpetuated by Ms Morgan’s continuing misuse of her voice, despite speech therapy and the resting of her voice.
Ms Morgan’s employment did contribute to her dysphonia as did her recurrent upper respiratory tract infections and continued cigarette smoking, but not to a significant degree that is, a degree that is substantially more than material.
There is a considerable body of case law dealing with the concept of a material contribution of employment to an employee’s ailment. In Comcare v Canute [2005] 148 FCR 232, French and Stone JJ said: “material”... imposes an evaluative threshold below which a causal connection may be disregarded. These obiter remarks were accepted by the Federal Court in Comcare v Sahu-Khan [2007] 156 FCR 536 and were again addressed by Finn J in Wiegand v Comcare( No 2) (2007) 94 ALD 154. The phrase in a material degree was replaced by to a significant degree in the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 and defined thereafter in the SRC Act as: significant degree means a degree that is substantially more than material (s 5B(3)).
There is very little case law addressing the meaning of a significant contribution. While there have been several decisions of the Tribunal related to the concept of a significant contribution they can be distinguished from this matter on the facts.
The definitions of significant and material provided by both the Oxford and Macquarie dictionaries are not helpful. The Oxford Dictionary defines significant as noteworthy, important and the Macquarie as important, of consequence. The definitions of material are important, essential, relevant or of substantial import or much consequence, respectively. If one accepts these definitions of material and applies them to the definition of significant in the SRC Act, the standard of proof required for a significant contribution is extremely high.
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.
I certify that the preceding 105 (one hundred and five) paragraphs are a true copy of the reasons for the decision herein of:
Miss E A Shanahan, Member......................[sgd]..................................................
K. Randall, Associate
Dated 12 July 2013
Dates of hearing 29 & 30 April 2013 Counsel for the Applicant Joel Harris Solicitors for the Applicant Stuart Coutts – Maurice Blackburn Counsel for the Respondent Cathy Dowsett Solicitors for the Respondent Kellie Latta – Sparke Helmore APPENDIX
·Applicant’s statement dated 19 June 2012 – Exhibit A1
·Letter from Stuart Coutts to Dr Baxter dated 29 May 2012 – Exhibit A2
·Medical report of Dr Malcolm Baxter dated 8 June 2012 – Exhibit A3
·Letter from Dr Baxter to Dr Brougham dated 12 October 2012 – Exhibit A4
·Section 37 documents for File No 2011/1744 – Exhibit R1
·Section 37 documents for File No 2012/1436 – Exhibit R2
·Progress note regarding the applicant by Chiara Wall dated 22 July 2011 – Exhibit R3
·Record of initial consultation by Tai Balfour dated 31 January 2011 – Exhibit R4
·Witness statement of Michelle Sen with attachments dated 17 January 2013 – Exhibit R5
·August 2011 statement of calls – Exhibit R6
·September 2011 statement of calls – Exhibit R7
·Summary of phone times in May 2010 – Exhibit R8
·Medical report of Dr David Gras dated 30 May 2011 – Exhibit R9
·Bundle relating to correspondence and emails between Ms Morgan and Tai Balfour dated 1 & 2 September 2011 – Exhibit R10
·Breed Street Medical Clinic records relating to Ms Morgan – Exhibit R11
·Witness statement (undated) of Ben McInnes – Exhibit R12
·Report of Mr Watson to Dr Brougham dated 10 July 2011 – Exhibit R13
·Report of Mr Watson to Ms Kelidis dated 23 January 2012 – Exhibit R14
·Report of Mr Watson to Mr Johnstone dated 6 August 2012 – Exhibit R15
·Briefing letter to Mr Watson by Mr Johnstone dated 4 July 2012 – Exhibit R16
·Briefing letter to Mr Watson by Mr Johnstone dated 8 November 2011 – Exhibit R17
·Report of Chiara Wall (speech pathologist) to Dr Gunawardana dated 19 November 2010 – Exhibit R18
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