Susan Reardon and Comcare

Case [2015] AATA 360

[2015] AATA 360  

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2013/6210

Re

Susan Reardon

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

Ms S Taglieri, Member
Date 26 May 2015  
Place Hobart

The decision under review is set aside.

........................................................................

Ms S Taglieri, Member

CATCHWORDS

Compensation - Ear and hearing conditions; whether work caused or aggravated; hyperacusis determined to have been aggravated; aggravation caused to a significant degree by employment; reviewable decision set aside.

LEGISLATION

Safety Rehabilitation and Compensation Act 1988

CASES

Su v Comcare [2011] AATA 934

Comcare v Sahu-Kahn [2007] FCA 15

Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 at 323

Mellor v Australian Postal Corporation (2009) ALD 159

Commonwealth of Australia v Beattie (1981) 35 ALR 369

Australian Postal Corporation v Bessey [2001] FCA 266

Wiegand v Comcare (2002) 72 ALD 795

REASONS FOR DECISION

Ms S Taglieri, Member

INTRODUCTION

  1. Mrs Reardon has been a full time employee of the Commonwealth Department of Health and Human Services (“the Department”) since 1988. From approximately January 2011, Mrs Reardon was employed as a Customer Service Officer based at Hobart in the Paid Parental Leave Team. Her duties involved taking customer telephone calls and she worked 4 days per week.

  2. By early 2012, Mrs Reardon was experiencing problems with phone headsets she used to do her work. She developed pressure, discomfort and later pain in her head at work, which she initially attributed to the headsets and also to workplace noise.

  3. By early 2013 Mrs Reardon was having frequent problems with her headsets, pain in her head and headaches. She initially consulted with her GP on 14 January 2013 and later formally notified her employer by incident report.[1]

    [1] T 13 at page 43 of T Documents

  4. On 13 May 2013 a claim for compensation was made to the Respondent.[2] Compensation was claimed for injury identified as “Hyperacusis related to workplace noise exposure, with sensorineural hearing loss and tinnitus” (“the ailments”). The claim was refused on 22 July 2013.[3] Subsequent reconsideration confirmed refusal of the claim.[4]

    [2] T 15 at page 45 to 53 of T Documents

    [3] Reviewable Decision at T 19, page 78 of T Documents

    [4] T26

  5. Mrs Reardon has applied to the Tribunal to review the refusal of her claim for compensation. The hearing occurred on 10, 11 and 12 March 2015. Further written submissions were made after the hearing by both parties with the Tribunal’s leave.

    THE ISSUES IN CONTENTION

  6. The Respondent conceded that Mrs Reardon suffered the conditions and that they are ailments for the purposes of a “disease” injury as contemplated by sections 5A(1) and 5B of the Safety Rehabilitation and Compensation Act 1988 (“the Act”).

  7. The only issue in dispute between the parties at the hearing was whether the ailments were caused by Mrs Reardon’s work with the Department.

  8. Mrs Reardon ought to succeed in this application and be entitled to compensation pursuant to section 14 of the Act, if one or more of the ailments:

    (a)were contributed to, to a significant degree…

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AGLC
Susan Reardon and Comcare [2015] AATA 360
Case
[2015] AATA 360
Decision Date

CaseChat Overview and Summary

In the matter of Susan Reardon and Comcare, the primary issue before the court was whether the applicant's hyperacusis was aggravated by her employment to a significant degree. The applicant alleged that her employment as a call centre operator contributed to the aggravation of her hearing conditions, including hyperacusis, tinnitus, and hearing loss. The court was required to determine if the characteristics of the applicant's employment played a significant role in aggravating her hyperacusis.

The court considered the evidence presented by the applicant and her supervisors, as well as witness statements from co-workers. The court found that the work environment was indeed noisy, with various "call bells" and other sounds that the applicant was exposed to while at work. While there may have been other factors contributing to the aggravation of the applicant's hyperacusis, the court held that it was sufficient if the employment characteristics contributed "to a significant degree." The court concluded that the applicant's employment did contribute to the aggravation of her hyperacusis to a significant degree. Therefore, the application was successful, and the decision under review was set aside. The matter was remitted to the respondent to give effect to these findings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Mrs Reardon ought to succeed in this application and be entitled to compensation pursuant to section 14 of the Act, if one or more of the ailments:(a)were contributed to, to a significant degree by Mrs Reardon’s employment; or(b)Were aggravated and the aggravation was contributed to, to a significant degree, by Mrs Reardon’s employment.[5][5] As required by section 5BTHE EVIDENCE BEFORE THE TRIBUNAL Mrs Reardon gave evidence, as did two of her supervisors (Linda Free and Penny Johnstone) during the relevant period in 2011 to 2013. Mr Nick Bell also gave evidence. He was a Senior Rehabilitation Case Manager within the Department. These witnesses also had signed witness statements that were taken into evidence as Exhibits. All witnesses were subject to cross-examination. I formed the view that all witnesses gave evidence to the best of their ability to aid the Tribunal and were honest. There was substantial consistency between the evidence of Mrs Reardon and Ms Free and Ms Johnstone concerning the history to Mrs Reardon’s conditions and the difficulties with headsets during 2012. Although Mrs Reardon’s evidence was more detailed about specific dates and times[6], in substance the preponderance of evidence was that the Department had been notified of the difficulties with noise, headsets, pressure and discomfort that Mrs Reardon was experiencing from at least April 2012.[7][6] T1, pages 5 to 12 of T Documents and oral evidence[7] Department’s timeline, T18 It is also apparent that Department personnel were aware of difficulties Mrs Reardon had with the call bell noises as early as 2011.[8] In her witness statement and during oral evidence, Ms Johnstone described the complaint made by Mrs Reardon as being one that the call bells were “annoying”. However, the context of the discussions were sufficiently serious to involve a request to be moved away from the bells and agreement to this.[8] Exhibit R3, Statement of Penny Johnstone The Tribunal also received signed statements from 6 of Mrs Reardon’s co-workers about noise in the working area. All had particular complaints about the call bells and described them variously. The common theme of the evidence was that the bells were loud or very loud and that they were disruptive or irritating at best and in two other cases, causative of health difficulties.[9] I do not give particular weight to these statements because the evidence content has not been tested. However, I do take into account that the Respondent did not seek to challenge their content by putting the material to Ms Free and Ms Johnstone who were called.[9] Ms Addison and Ms Ashenden On the basis of the evidence of all witnesses who gave evidence at the hearing, I am satisfied that the work environment where Mrs Reardon worked during 2011, 2012 and 2013 was noisy. It had various “call bells” which frequently made audible sound during the course of a working day. In addition, there were other sounds, general talking when taking calls, feedback from the headsets/phone calls, radios, and fire alarm and other bells at times, all of which Mrs Reardon was exposed to while at work.

Decision

Reasons for decision

Factors other than employment may have also contributed to the aggravation of Mrs Reardon’s hyperacusis. This does not mean her application ought to fail, as the characteristics of employment do not have to be the sole or major cause of the aggravation. It is sufficient if the employment characteristics contributed “to a significant degree”. [27] [27] Wiegand v Comcare (2002) 72 ALD 795CONCLUSION I am not satisfied that the conditions of hearing loss, tinnitus and hyperacusis suffered by Mrs Reardon were caused by her employment to the required significant degree. Mrs Reardon suffered aggravation of the ailment, hypreacusis and her employment contributed to such aggravation to a significant degree. The application is successful and the decision under review is set aside. Further the matter is remitted to the Respondent to give effect to these findings.

Ratio Decidendi

Legal Principle Established

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