Susan Stephenson and Telstra Corporation Ltd
[2012] AATA 857
•6 December 2012
[2012] AATA 857
Division GENERAL ADMINISTRATIVE DIVISION File Numbers
2010/2505
2011/5465
Re
Susan Stephenson
APPLICANT
And
Telstra Corporation Ltd
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 6 December 2012 Place Brisbane The reviewable decisions are affirmed.
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Senior Member Bernard J McCabe
CATCHWORDS
COMPENSATION – Workplace injury – Aggravated ear condition – Resulting psychiatric condition – Insufficient medical evidence – Decisions affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
REASONS FOR DECISION
Senior Member Bernard J McCabe
6 December 2012
Susan Stephenson was employed by Telstra in a call centre. She says she has aggravated an ear condition – most likely acoustic shock syndrome, but certainly tinnitus, headaches, dizziness and balance issues – as a result of an incident in her workplace in March 2010 (although she also referred to another possible incident in January 2010 that might have contributed to her current condition(s)). She also says she has developed a psychiatric condition as a result of her inability to cope with her work-related physical symptoms.
Telstra says it is not liable under the Safety Rehabilitation and Compensation Act 1988 (“the Act”) for Mrs Stephenson’s physical symptoms or her psychiatric condition. It doubts whether incidents occurred at work in January and March 2010 as she claimed. It argues there is insufficient medical evidence to support her claim in relation to the physical symptoms in any event. The parties acknowledged the applicant cannot succeed in her claim for a psychiatric condition unless she is also successful in relation to the physical symptoms.
I do not think Mrs Stephenson’s claim for compensation can succeed. It follows the decisions must be affirmed. I explain my reasons below.
THE FACTUAL BACKGROUND
Mrs Stephenson commenced work at Telstra in Townsville in 2009, although she had earlier worked for one of Telstra’s agents. She had worked in sales but by 2009 she was working in the call centre. In that role, she was often required to listen to calls made on problematic lines. Many of the calls were marred by static or noise. She wore a headset in the course of her work which was connected to a computer and the phone line through a device known as a Soundshield, which was manufactured for Telstra by a company called Polaris. I will have more to say of this technology later.
The applicant said there was no evidence of hearing problems when she commenced work at Telstra but problems began to emerge during 2009. She was a keen Karaoke singer and attended Karaoke nights twice a week. In September 2009, she experienced hoarseness of voice. She noticed she would also occasionally experience tinnitus, nausea and headaches and some other symptoms that indicated an ear problem. She said in her statement (exhibit 5) that the problems would emerge on Sunday mornings after participating at a Karaoke night conducted in a closed venue the night before. I note she said she did not experience problems following Karaoke nights held at open-air venues. She mentioned the other symptoms to Dr Altman, an ear, nose and throat (ENT) surgeon who saw her about her hoarseness of voice. in November 2009 on referral from her general practitioner. Dr Altman and her general practitioner did not reach any conclusion about the ear problems at that point.
Mrs Stephenson said in her statement that she began to miss some Karaoke sessions around the end of the year, and she resorted to using cotton wool or ear plugs and would sit at the back of the room. The physical symptoms did not emerge when she took these measures.
The applicant had some time on modified duties to cope with her hoarseness of voice but she was back at her usual job on 13 January 2010 when she took a call from a customer who complained about a fault on his line. She said she recalled the line was very crackly. The call was otherwise unremarkable. She did not file an incident report in relation to the call. I note she took the call wearing her headset attached to the Soundshield device.
Early the following morning, on 14 January, the applicant woke feeling very ill. She said she had severe nausea, a bad headache, she felt off-balance and had an ear ache. She saw the doctor and took time off work. The symptoms settled but reappeared when she returned to work two days later. They continued intermittently until she went on holidays on 22 February 2010. Mrs Stephenson noted the symptoms were aggravated by a lengthy call she took from her sister while she was on leave. She said in her statement that the episodes of illness were lasting longer: whereas before January they might last a couple of hours and only appeared in the first place if she had been exposed to loud noise at Karaoke, the symptoms became more intense and lasted for days at a time – although she said they were also set off by exposure to any loud noise.
Mrs Stephenson said in her oral evidence that she wanted to identify the reason why her condition had deteriorated in January. On the morning of 8 March 2010, after returning to work from leave, she tried to track down information in relation to the call she had taken from the customer on a crackly line on 13 January. She surmised that was the cause of the increased intensity of the symptoms, although she agreed there was nothing remarkable about the call apart from its crackly quality. She was told by her managers that the calls could not be isolated and there was no way of checking what had occurred.
Later that afternoon, the applicant took a call from a customer complaining of a fault. She was wearing her usual headset that was connected to the computer and phone line through a Soundshield device. The call proceeded uneventfully until the point at which the customer terminated the call once their discussion concluded. The applicant said the noise of him hanging up was like a loud clunk – as if he had dropped the receiver. There was no suggestion the customer was dissatisfied and slammed the phone down; it was just a loud noise. The applicant said she experienced immediate pain in her ears and cried out. She threw off her headset and clutched at her ear. Her account of her reaction was confirmed by a co-worker, Ms Tropea, who provided a statement (exhibit 3) and gave evidence at the hearing.
Mrs Stephenson was apparently in a distressed state following the call. She was seen by her managers who subsequently completed an incident report. An ambulance was called. The headset and Soundshield device were disconnected and sent for testing. (although it seems some of the data on the device may have been lost when they were disconnected)
The applicant has not worked since the date of the incident, although she says she would like to do so. The symptoms continue. She continues to struggle whenever loud noises occur (a condition known as hyperacusis (also spelled hyperacousis). It was clear from her oral evidence that she feels aggrieved and hurt that no one at Telstra contacted her while she was off work to see how she was doing. She said her manager only showed an interest after Mrs Stephenson complained. I note Ms Tropea gave evidence that she and other colleagues did remain in contact with Ms Stephenson.
The applicant says her life has been seriously compromised by her conditions. She thinks Telstra is responsible.
THE MEDICAL EVIDENCE
I will say at once that the medical profession appears to have some difficulty dealing with the physical symptoms reported in cases like Mrs Stephenson’s. Complaints about pain are always difficult to pin down, because pain is an elusive concept. It is also difficult to objectively verify whether someone experiences headache, hyperacousis, dizziness, ear-ache or tinnitus. Psychiatric symptoms are also difficult to verify.
I indicated earlier that the parties accepted the claim in respect of the psychiatric symptoms could only succeed if the applicant was also successful in relation to her claim in respect of the physical symptoms. The report from Dr Jetnikoff, who examined Mrs Stephenson at the request of Telstra, broadly confirms the applicant suffers from a chronic adjustment disorder which is linked to her physical symptoms. I have no reason to doubt the existence of the psychiatric condition: she was clearly in a distressed state when she gave evidence. But it is not necessary that I deal any further with Dr Jetnikoff’s evidence now in light of the conclusions I have reached in relation to the other evidence, which I will explain.
I was not provided with any specialist opinion that suggested a diagnosis which would explain Mrs Stephenson’s physical symptoms. Mr Stephenson, who represented his former wife at the hearing, suggested the condition might be summed up as acoustic shock syndrome. But I was not given any specialist medical opinion to that effect.
It is not necessary that I identify a formal diagnosis for the applicant to succeed, of course. It is enough that I am satisfied there is something going on outside the normal range of functioning. I will assume in the applicant’s favour that she does experience symptoms including tinnitus, hyperacousis, dizziness, headaches, ear-ache and loss of balance. Those symptoms appear to have been building for some time – at least since mid to late 2009, according to the notes obtained under summons from her general practitioner.
ESTABLISHING A CONNECTION BETWEEN THE APPLICANT’S SYMPTOMS AND HER WORKPLACE
The applicant says her condition – however it is described – was aggravated by the incident on 8 March 2010, and possibly by the earlier incident in January when she took a call on a crackling line. My assessment of both incidents must take into account the technical evidence.
Unfortunately, the technical evidence is limited. The headset and Soundshield device were both returned to the manufacturer, Polaris, for assessment. The Soundshield was found to be in proper working order. A problem was identified with the wiring in the headset: exhibit 9. An internal report from Polaris (exhibit 10) reported the wiring problem led to the headset “intermittently making noises.” The report explained the wiring was the product of a breakdown in insulation which “result[s] in breaks of contact which manifest as noise.”
Mr Stephenson insisted this was an important revelation, but the evidence from Mr Guest (the managing director of Polaris) put the report in context. Mr Guest explained it is the Soundshield that acts to prevent damaging noises being transmitted to the listener. The fact the headset may have been faulty was irrelevant. The noises that emanated from the headset could not have been loud, and the Soundshield would certainly (in his view) have blocked the transmission of any noise loud enough to do damage.
Mr Guest was very confident that his company’s product did what it was designed to do. Mr Stephenson pointed out some of the data downloaded from the device raised more questions than it answered, and some of the data was effectively wiped. That is unfortunate. I would add that, in an ideal world, I would have been provided with some evidence of independent testing to confirm the device was working, rather than relying on the manufacturer’s opinions regarding its own products.
While there were some questions left unanswered, the evidence before me confirms the Soundshield device was in working order, and it would have suppressed any loud or damaging noise from being transmitted through the phone to the headset. While Mrs Stephenson says she suffers from hyperacousis, I was not provided with any medical evidence that would enable me to evaluate a claim that not-very-loud or otherwise unremarkable sounds would trigger acute symptoms. In those circumstances, I cannot accept the applicant’s claim that her physical symptoms are work-related.
CONCLUSION
The reviewable decisions are affirmed.
I certify that the preceding 23 (twenty three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.
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Associate
Dated 6 December 2012.
Dates of hearing 21 - 22 November 2012 Advocate for the Applicant Mr Stephenson Counsel for the Respondent Mr C Clark Solicitors for the Respondent Sparke Helmore Lawyers
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