Susan Reardon and Comcare

[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 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 5B

   THE EVIDENCE BEFORE THE TRIBUNAL

9. 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.

10. 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

11. 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

12. 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

13. 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.

14. I received evidence from Mrs Reardon about exposure to noise from an emergency evacuation warning alarm.[10] Mrs Reardon was not cross-examined about this evidence and I accept the account given by her as accurate. The impression was that the sound was very loud but I had no evidence about the decibel volume involved with this noise which lasted for a prolonged time.

    [10] Exhibit A2

15. The evidence about the total volume of the ambient sound in the work area on a daily basis was deficient. Meaning that I do not accept the testing undertaken by Mr Bell and his evidence as an accurate reflection of the total volume of ambient noise day to day while Mrs Reardon worked. I also have doubt about the accuracy of the readings he took for the call bells as I had no evidence that he was qualified to undertake such testing. His title is Senior Rehabilitation Case Manager.

16. Mr Bell’s testing was undertaken in circumstances that did not entirely match the working conditions in which Mrs Reardon worked during the relevant period 2011 to 2013. The evidence established that the testing was in a quieter environment, as a significant number of employees had been moved out of the area at the time of testing. Mr Bell measured a maximum of 66 and 77 decibels for each type of call bell tested.

17. Referring to the Code of Practice for Managing Noise and Preventing hearing loss at Work[11], Mr Bell identified some decibel levels related to particular noises. A noisy office alone is said to be 80db, as is an alarm clock. On the state of the evidence, I cannot be satisfied about the accurate decibel measure of ambient noise levels at the workplace or particular noises during the relevant time.

    [11] Exhibit R4

18. Mrs Reardon was cross-examined about a car accident in March 2012, in which an airbag deployed. It was suggested to her that this history was relevant to the cause of her conditions and that she had not disclosed it to the doctors she had seen. Mrs Reardon frankly admitted that she had not disclosed it or an earlier car accident during work hours in which an airbag had been deployed. Her reasoning was that she was not asked specifically and that it did not occur to her to be relevant. I accept that she has been entirely truthful about this.

19. Counsel for the Respondent submitted that Mrs Reardon had been selective in giving history to various doctors. I do not accept that Mrs Reardon was deliberately or consciously selective and do not make any adverse inference against her.

    THE EXPERT MEDICAL EVIDENCE

20. Dr Peter Sharman, an Occupational Physician and Dr Warwick Brennan, an Ear, Nose and Throat Specialist gave evidence to the Tribunal.

21. The substance of Dr Sharman’s evidence was that the noise to which Mrs Reardon was exposed at her workplace was capable of causing hearing loss and tinnitus and hyperacusis from which she suffered. This view was said to be based on the whole clinical picture, including history given by Mrs Reardon, his findings, imaging test results and information provided by the treating ENT, Dr Naiman and Ms Susan Grenness, an Audiologist. Dr Sharman had also conducted a workplace visit and taken measurements of noise levels on his phone. The measure taken for background noise on a quiet day (no call bell operating) was 65-70 decibels and significantly higher than the measures taken by Mr Bell for background noise which was 49 decibels.

22. I cannot be satisfied about the accuracy and relevance of the readings taken by Dr Sharman for reasons similar to those expressed about Mr Bell’s readings.

23. Dr Sharman gave evidence that he had experience and specialised knowledge concerning hearing loss in an occupational context. I accept that this is the case and consider that I am entitled to take his views into account.

24. Dr Sharman did not have knowledge that Mrs Reardon had been involved in two car accidents in the past during which air bags had been deployed, when he initially expressed his views.[12]

    [12] Report dated 12.8.13, T 21 at page 87 to 88 of the T Documents and Exhibit A 10, report dated 16.10.14

25. When cross-examined about the potential for the noise from the airbags (particularly from the second car accident which occurred in March 2012), to be causative of her conditions, Dr Sharman did not consider it particularly relevant.  He reasoned that it was important to know what the history of symptoms had been at the time. Because there was no reporting of ear related symptoms, his view was that it was reasonable to exclude this as a likely cause or contributor to Mrs Reardon’s conditions.

26. Dr Brennan gave evidence about the likely cause of Mrs Reardon’s conditions and two reports from him were received into evidence.[13] In response to specific questions posed about causation, he stated as follows in his report[14]:

    “The cause of hearing loss is uncertain. The tinnitus is most likely related to her underlying hearing impairment. The cause of her sensitivity to noise contact is uncertain.”

    “I wonder whether this patient’s sensitivity to noise is due to a pre-existing or underlying condition such as endolymphatic hydrops.” This is an inner ear disorder related to fluid retention in the inner ear.”

    [13] Exhibit R5, report dated 7.7.14 and Exhibit R6, report dated 3.2.15

    [14] Exhibit R5, paragraphs (D) and (E)

27. In regard to whether any of Mrs Reardon’s conditions had been aggravated by work, he stated in his first report as follows:

    “If Mrs Reardon had an underlying inner ear disorder predisposing her to sensitivity to noise, then she would be likely to experience difficulty from the ambient noise of a warning alarm and would also be likely to experience difficulty from the use of a headset with prolonged conversation in significant ambient noise.”[15]

    [15] Annexure A, paragraph (F) of Exhibit R5

28. The clear effect of the quoted views (which did not alter when Dr Brennan gave oral evidence), is that he does not know what has caused Mrs Reardon’s hearing loss and was unwilling to say what the likely cause was (even when given the history of the airbags deploying). He stated that the decibel volume was 165-170 decibels and the sound “very intense”. Despite this, he was unwilling to attribute the hearing loss to the airbags being deployed, because if there had been acoustic trauma, immediate symptoms in the ears ought to have been experienced, but Mrs Reardon did not apparently have such symptoms, based on her presentation to the GP very soon after the accident in March 2012.

29. It was quite clear that Dr Sharman and Dr Brennan did not consider the air bag deployments or the car accident to be particularly relevant to the cause of Mrs Reardon’s conditions.

30. Dr Brennan considered that if the noise exposure in the workplace was only between 55 and 65 decibels, it was unlikely to cause hearing loss. He stated that normal conversation was equivalent to 55 to 60 decibels.

31. The consensus of the medical evidence was that the tinnitus (ringing in the ears) was a consequence of the hearing loss.

32. Both Dr Sharman and Dr Brennan agreed that hyperacusis was a recognised medical condition and constituted a reduction of normal tolerance to everyday sounds. They agreed that it was an abnormality in the auditory pathway. Dr Brennan’s evidence was that this condition can be triggered by prolonged exposure to unpleasant noise[16].  The call bell noises were certainly that for Mrs Reardon.

    [16] Exhibit R4, last page

33. Dr Sharman and Dr Brennan were of the view that the workplace noises aggravated the hyperacusis from which Mrs Reardon suffered.

    THE APPLICABLE LEGAL PRINCIPLES

34. Whether Mrs Reardon’s conditions were significantly contributed to by employment or whether they were aggravated significantly by employment, requires consideration of what is meant by “contribution to a significant degree”.

35. This has been settled in law and it requires the contribution by employment to be substantially more than “material”.

36. In Su v Comcare[17] the requirement of contribution to a significant degree was expressed as follows, when approving of Justice Finn’s approach to interpretation in Comcare v Sahu-Kahn[18]:

    “When determining whether any contribution of the employment is of ‘a significant degree’, matters that may be taken into account are set out in section 5B(2). The assessment of causal factors that contribute to a disease is not simply relativistic. The threshold question for the purposes of the Act is whether the employment contributes to ‘a significant degree’ ‘that is substantially more than material’. This is the “evaluative threshold below which a causal connection may be disregarded”^[4]. If the contribution is to a significant degree, it is beside the point that one factor contributes to a greater extent than another. Nor does it matter that factors outside the frame of employment also contribute to a significant degree. The Act does not require employment to be the sole, proximate or dominant cause of an injury.”[19]

    [17] [2011] AATA 934

    [18] [2007] FCA 15 at paragraph[16]

    [19] At paragraphs 4 and 5 of Su v Comcare

37. I must be satisfied on the balance of probabilities, that contribution by employment was to a significant degree and it ought not be left in the area of possibility or conjecture.[20] Further, whether employment contributed to a significant degree, is a question of fact to be determined by the Tribunal in each case.[21]

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

    [21] Mellor v Australian Postal Corporation (2009) ALD 159, at paragraph [23]

38. A worsening or increase in symptoms of a non-work caused condition may constitute an “aggravation injury” for the purposes of the Act and it is unnecessary for a worsening of pathology to be present.[22]

    [22]Mellor v Australian Postal Corporation (2009) ALD 159 at paragraphs 22 to 27 and following Commonwealth of Australia v Beattie (1981) 35 ALR 369

    FINDINGS OF THE TRIBUNAL

39. The entirety of the evidence about the nature of the noise in Mrs Reardon’s workplace prior to her incapacity, conveys a clear picture that there were many types of noises of varying volumes, some loud (such as the fire/evacuation alarms) and others equivalent to mere conversation (55 to 60 decibels). The evidence portrays a busy and quite noisy workplace.

40. The evidence of Mr Bell relating to the Code of Practice and decibel levels for particular noises, strongly suggests that at any given time noise levels in the workplace were probably around 80db and at times, when radios, phone feedback, call bells and alarms were operating, the noise levels could well have exceeded 80db.

41. Despite the findings above, in the absence of specific reliable evidence about the ambient noise levels, I cannot reach any firm conclusion about the decibel range for noises to which Mrs Reardon was exposed while at work.

42. In view of this, I cannot be satisfied that her hearing loss was caused by employment in the sense that employment contributed to it to a significant degree.  I would be venturing into conjecture, if it were otherwise, because both medical experts gave evidence that typically exposure to noise levels of 70db or less for 8 hours would not cause hearing loss. Dr Sharman suggested there were some exceptions to this, but in essence agreed.

43. In the absence of reliable evidence about the decibel noise levels to which Mrs Reardon was exposed while at work, I cannot be satisfied that noise in the workplace was a significant contributing factor to the hearing loss from which Mrs Reardon suffers.

44. Further, as the evidence establishes that tinnitus is a consequence of the hearing loss, I cannot be satisfied that employment contributed to a significant degree to the condition of tinnitus from which Mrs Reardon also suffers.

45. On the basis of the medical evidence, I cannot be satisfied that employment was a significant contributing factor to Mrs Reardon’s condition of hyperacusis. Dr Sharman attributed the condition to the workplace noise, but close scrutiny of his evidence does not convince me that such attribution is valid. He agreed that the known causes of it were hearing loss, head injury, whiplash, acoustic trauma, an adverse reaction to drugs, chronic ear infection. On the other hand, he agreed that in Mrs Reardon’s case the condition appeared to be of gradual onset and not directly attributed to one of the known causes.

46. Dr Brennan suggested that the condition of hyperacusis was related to an undiagnosed inner ear condition, but does not identify what, or provide any plausible evidence that Mrs Reardon has such condition.

47. Given the state of the medical evidence it seems more likely than not that Mrs Reardon’s hyperacusis is a consequence of the hearing loss and tinnitus. As employment is not a significant contributing factor to either, I cannot be satisfied that her employment has contributed to a significant degree to the hyperacusis.

48. As a result of the above reasoning, Mrs Reardon has failed to persuade me on the balance of probabilities that employment caused her ailments. However, I am obliged to consider whether employment has caused, by a significant degree, aggravation of one or more of them. 

    WAS EMPLOYMENT A SIGNIFICANT CONTRIBUTOR TO AGGRAVATION OF HEARING LOSS, TINNITUS AND/OR HYPERACUSIS?

49. The evidence of Mrs Reardon, is that her symptoms deteriorated and became worse when using the headsets at work and when exposed to the call bell and other noises in the workplace. I accept her evidence and am comforted in doing so because her complaints are corroborated to a degree by contemporaneous records created in the employment relationship.

50. Although Mrs Reardon also said that she experienced symptoms away from work, it was apparent from her evidence that the type and frequency of them, were greater in the workplace.  She said words to the effect that “initially I had pressure in my head when using the headsets and then it became pain when using the headsets.

1. When asked about pain from noise and whether it stopped after a noise, she answered that it did not and instead built up during the working day. She said that when the call bells were introduced it was very busy and stressful and Dr Brennan acknowledged that stress was a contributor to hyperacusis.

2. On the basis of Mrs Reardon’s evidence concerning onset of symptoms, which is largely corroborated by the Department’s records and witnesses, I am satisfied that the use of the headsets and the noise in the workplace, particularly the call bells caused symptoms of pressure and discomfort from at least 2012 which later developed into pain and headache during the recurring and frequent exposures during work hours throughout late 2012 and into 2013.

3. Further, I am satisfied that by January 2013, Mrs Reardon’s symptoms had deteriorated to the point that she sought medical treatment, and after investigation was found to be suffering hearing loss, tinnitus and hyperacusis. While I cannot be satisfied that employment caused these conditions to a significant degree, I am satisfied that it aggravated the hyperacusis because it worsened her symptoms of pressure, discomfort and headache and made her more sensitive to normal sounds.  Employment was a significant contributor to the aggravation for the following reasons:

   (c)Both medical experts accept that the workplace noises were capable of making the condition of hyperacusis worse;

   (d)Dr Brennan’s evidence that there was nothing in Mrs Reardon’s past history of noise exposure outside of the workplace likely to explain her hearing loss, tinnitus or hyperacusis[23];

   (e)The absence of evidence of any diagnosed medical condition of the inner ear capable of explaining the conditions;

   (f)Dr Brennan’s evidence that hyperacusis can be triggered by prolonged exposure to unpleasant noise and the call bell was certainly that to Mrs Reardon;

   (g)The evidence of both medical experts that the hyperacusis is worsened by workplace noise and is causative of incapacity, whereas the hearing loss and tinnitus are not.[24]

   (h)Dr Brennan’s evidence that Mrs Reardon will have difficulty, which I take him to include symptoms and incapacity given the overall context of his evidence, from noise of a warning alarm and use of headsets with prolonged conversation in significant ambient noise, which was a reference to the workplace.[25]

   (i)That prior to 2011, when the call bells were not operational, and before the use of headsets caused pressure, Mrs Reardon did not have any hypersensitivity to noises, including those outside of work.

   (j)That the hyperacusis only developed after Mrs Reardon had been repeatedly experiencing difficulty with the headsets and call bells.

   [23] Exhibit R5 paragraph (H)

   [24] Last page of Exhibit R 5

   [25] Paragraph (F) of exhibit R5

4. The matters included in section 5B(2) of the Act have been considered when giving the reasons above. The authority of Australian Postal Corporation v Bessey[26] has been considered and I am satisfied on the evidence that the worsening of Mrs Reardon’s symptoms by employment factors was not transitory, but rather continued indefinitely.

   [26] [2001] FCA 266

5. Although in his report of 7 July 2014, Dr Brennan describes the aggravation by work to be one of a “minor degree”, I do not consider that is an accurate reflection of the effect of the workplace factors that have contributed including the headsets, the call bells and the customer calls. I am required to determine the question of whether employment was a significant contributor to the aggravation. I am not bound to accept Dr Brennan’s categorisation of “minor” and do not, taking into account all other evidence received.

6. 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 795

   CONCLUSION

7. 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.

8. 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.

I certify that the preceding 58 (fifty eight) paragraphs are a true copy of the reasons for the decision herein of Ms S Taglieri (Member)

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Administrative Assistant

Dated             26 May 2015

Dates of hearing	10, 11, 12 March 2015
Applicant	Mrs Susan Reardon (self-represented)
Counsel for the Respondent	Ms Carmen Currie, Barrister
Solicitor for the Respondent	Ms Naomi Richards, Australian Government Solicitor