Beasleigh and Telstra Corporation [1999] AATA 98 (22 February 1999)

Last Updated: 25 February 1999

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [1999] AATA 98

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q1997/616

GENERAL ADMINISTRATIVE DIVISION )

Re WENDY ANNE BEASLEIGH

Applicant

And TELSTRA CORPORATION

Respondent

DECISION

Tribunal Mr K L Beddoe (Senior Member)

Mr H M Pavlin (Member)

Dr K P Kennedy OBE (Member)

Date 22 February 1999

Place Brisbane

Decision The Tribunal decides that the decision under review is affirmed.

(Sgd) K L Beddoe

Decision No 98/1999 (Senior Member)

CATCHWORDS

COMPENSATION : Incapacity to work - whether continuing liability - deafness claimed to be caused by headphone shrieks

Safety Rehabilitation and Compensation Act 1986 s 14

REASONS FOR DECISION

22 February 1999 Mr K L Beddoe (Senior Member)

Mrs H M Pavlin (Member)

Dr K P Kennedy OBE (Member)

1. On 24 March 1997 a delegate of the respondent determined that it was not liable for continuing payment of compensation for high frequency sensori-neural deafness (T152). The effect was to cease further liability which had been first admitted by a determination notified on 5 April 1993 where liability was accepted in respect of "Acoustic Trauma" (T25). The determination of 24 March 1997 was affirmed on reconsideration (T159). Liability was ceased with effect on and from 1 March 1997. The applicant sought review in this Tribunal of the reviewable decision.

2. The question at issue arises for consideration under the Safety Rehabilitation and Compensation Act 1986 ("the Act"). Section 14 of the Act provides, in effect, that the respondent is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

3. "Injury" is defined in s 4(1) of the Act as follows:

"(a) a disease suffered by an employee; or

(b) an injury (other than a disease) suffered by an employee, being 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), being an aggravation that arose out of, or in the course of, that employment.

But does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;"

4. "Disease" is also defined in s 4(1) as follows:

"(a) any ailment suffered by an employee; or

(b) the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation;"

5. A reference to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury being:

(a) an incapacity to engage in any work; or

(b) an incapacity to engage in work at the same level at which she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened. (S4(9)).

6. At the hearing Ms Johnson of counsel appeared for the applicant and Mr Dickson of counsel appeared for the respondent. The documents lodged in the Tribunal pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 were placed before the Tribunal and further documents tendered by the parties were marked as exhibits (A and 1 to 6).

7. Oral evidence was given by the applicant, her husband, a supervisor employed by the respondent and four medical witnesses.

8. The applicant was employed by the respondent and its predecessor as a telephone exchange telephonist. The applicant's claim for compensation had its beginning in an accident report dated 17 November 1981 (T5) which reported "screech" in the ear from a telephonist's headphone while employed as a directory assistance telephonist with the respondent's predecessor. That was the first of a number of accident reports included in the T documents also reporting similar shrieks in the telephonic equipment operated by the applicant in the course of her employment.

9. We have no reason to doubt that the accident reports were made bona fide.

10. The applicant had commenced employment with the then Postmaster-General's Department in 1963 as a telephonist at the Tarcutta Exchange.

11. She gave evidence of her medical history and said that she enjoyed good health and on commencing employment was passed fit on examination by a Commonwealth Medical Officer.

12. In 1972 the applicant and her family moved to live in Queensland; the Tarcutta telephone exchange having been closed. She eventually obtained employment as a telephonist at the Nambour telephone exchange in 1973 and was appointed as a permanent officer in 1976, in respect of which she was passed fit at a further medical examination.

13. The applicant stated that by 1981 it was common for the telephonists at the new Nambour exchange to suffer "shrieks" in their head sets. The head sets in question were head clip single speaker headsets so that the telephonist only listened with one ear - generally, in the applicant's case - her right ear. She said the "shrieks" were apparently caused by technical defects in the exchange. Apparently it was difficult to isolate the cause and her reaction to a "shriek" was to remove her headset quickly from her ear.

14. Eventually the applicant resigned her employment at the Nambour Exchange in 1985 but she re-entered employment at the Exchange in 1988 at the time of the World Expo in Brisbane. Upon re-employment she noticed that she had suffered a hearing loss and she said she went to see Dr Moore and then Dr Menzies about that hearing loss. She was not hearing properly and still suffered "shrieks" from time to time which she says she mostly reported.

15. By 1993-1994 she said she was suffering stress at work because she could not hear the callers properly. She also suffered ear infections at this time together with tinnitus. She spent some time on other duties and ceased employment at the Nambour Exchange in January 1995. She was then employed by the respondent at a store facility and some work at Hervey Bay but was unable to cope with heavy lifting duties.

16. She has not worked since ceasing employment with the respondent in early 1997. More specifically, in relation to her claim, the applicant said in her evidence in chief, that her concerns about her hearing had begun really in the late 1980's and early 1990's. She later stated that about 1993 or 1994, she had started to get a couple of ear infections and by then she was experiencing a lot of tinnitus. She became stressed at work - the tinnitus became worse and her stress levels rose because her hearing problem seemed to be affecting her work.

17. In examination in chief the following exchange was recorded by the Tribunal:

Q. These ear infections that you have mentioned about how long did these infections last?

A. Well I think that they went for about 18 months to 2 years. I think that I had them for quite a long time. I was getting really stressed about having them - as soon as I would get a cold, then it would hit my ear, and it would go straight into my ears.

18. Later, the applicant stated that she had ceased working at the Nambour Exchange in 1995. Since that time she had had no further ear infections and the tinnitus had settled to an acceptable level.

19. When cross examined by Mr Dickson concerning her ear infections, the applicant agreed that in January 1994, Dr Jacobs had diagnosed bilateral middle ear infection and that in March (or May) 1994 Dr Johnson had given her a certificate for eustachian obstruction to both ears. She had been diagnosed with glue ear by Dr Menzies in 1991. She also acknowledged that she could have had middle ear infection before 1993/94.

20. In response to a question from the Tribunal, the applicant said that she thought that her tonsils had been removed at about the age of 9 years but she did not know the reason for their removal.

21. The applicant's husband was also called to give evidence. He stated that he operated the family fruit farm and the applicant did not participate in the farming operations. He corroborated the evidence in relation to "shrieks" said by the applicant to have occurred since the 1980s but only on the basis of what his wife had told him over the years. He also said that the applicant had difficulties with hearing, especially when there is background noise. He has noted the hearing loss as being in the right ear rather than the left ear. In response to a question from Ms Johnson Mr Beasleigh said, in effect, that the applicant had not told him which ear had experienced the shrieks. We find that response somewhat at odds with the other quite specific evidence given by Mr Beasleigh so as to cast doubt on the veracity of his evidence.

22. Ms Johnson also called one of the applicant's supervisors at the Nambour Exchange to give evidence. Shirley May McKinlay was clear in her evidence about a long history of "shrieks" being experienced by operators at the Nambour Exchange. She worked at the Exchange from 1974 and had worked as a supervisor since 1980 although not formally appointed until 1986. Her evidence corroborates the evidence of the applicant as to the experience of suffering shrieks and we accept, and find, that it is more likely than not that the applicant experienced the "shrieks" as claimed by her. Mrs McKinlay also said that the respondent's predecessor had taken steps to eliminate the "shrieks" from the system and they had declined in number over the years. She also said that she had noted the applicant having hearing difficulties in her later years of employment.

23. We turn now to the medical evidence.

Evidence of Dr Bruce Moore

24. Dr Bruce Moore is a specialist ENT surgeon. Four written reports earlier prepared by Dr Moore, on 21 June 1993, 10 October 1994, 7 November 1994 and 25 November 1994 respectively, were included within the T documents. The initial report of 21 June 1993 had related to an examination on the day that the applicant had reported experiencing a shriek. In his report of 10 October 1994 to Work Directions Australia, he stated:

"It does appear the progressive loss in the right ear related to repeated noise exposure in her work with Telecom." (T67)

25. In that letter, he had also commented that audiometric evaluation had revealed a severe high frequency hearing loss which was a little more pronounced in the right ear. In that letter, Dr Moore made no mention of the likely causative factor for the hearing loss in the left ear.

26. In a letter of 7 November 1994 (T76) Dr Moore forwarded an audiogram result and stated that the findings were consistent with her history of noise exposure. Finally, in the report of 25 November 1994 (T84) Dr Moore stated that he had calculated binaural hearing loss at 8.5% in October 1993 and at 11% on 25 October 1994, based on audiometry results.

27. Dr Moore also gave evidence by telephone. In his evidence in chief, he said that in the past he had seen other Telecom employees who had complained of shriek exposure but he had not seen Telecom employees complaining of this entity in the last few years. He also said that if a person were exposed to a loud noise on one side of the head, then he would expect the effects to be just on that side. Audiometry had revealed high frequency hearing loss which was more pronounced on the right side.

28. In 1993 he had recorded both ears as normal, but in 1994 the tympanic membranes had appeared dull. In 1994 the applicant had been referred by her doctor because she felt that her hearing loss had become worse. On that occasion when he examined her she had evidence of middle ear congestion.

29. Dr Moore also said that the applicant had told him that she could recall having quite a lot of earache as a child and he had made the judgment that it had most likely been otitis media. He had made that judgment right or wrongly, from her description that it was most likely otitis media.

30. In his initial evidence, Dr Moore said that he had at the time felt the hearing loss to be less likely to be due to otitis media but anything was possible. He had felt that otitis media may have caused some transient change. He also stated that he could not recall having seen anybody from Telecom complaining of shriek exposure since seeing the applicant.

31. In cross examination Dr Moore agreed with Mr Dickson, that there might well have been hearing loss in one or both ears from more than one cause. Among other causes for inner ear loss, he mentioned the possibility of an hereditary cause, recurrent infection, other noise exposure, previous concussion etc. He confirmed that he had not assigned any responsibility for the condition in the left ear as being due to shrieks.

32. In relation to the other Telecom employees referred to him because of shrieks Dr Moore, in reply to a question from the Tribunal, said that there had been some who had come to him who had normal hearing and that he could not recall anybody with significant hearing loss.

33. When Mr Dickson referred Dr Moore to the report of Dr Coman, Dr Moore said that tympanosclerosis noted by Dr Coman on his examination could be consistent with some hearing loss but that the change could be present without any hearing impairment being present.

34. Mr Dickson told Dr Moore that the following question had been put to Dr Coman:

"On the balance of probabilities as distinct from possibilities do you consider that employment with Telstra contributed in a material degree to the contraction, aggravation, acceleration or deterioration of Mrs Beasleigh's condition?"

Dr Coman responded "No"!

Mr Dickson asked Dr Moore if he would agree with Dr Coman about that? Dr Moore replied that he would have to say that primarily it is likely to have been the middle ear involvement over the years.

35. Dr Moore later said that he would not exclude a contribution to the greater loss in the right ear to noise. He did agree with Mr Dickson that in view of the lengthy time between events and the brevity of the individual exposures to noise the pendulum would fall very heavily to the otitis media involvement. Although Dr Moore had originally attributed the hearing loss to shrieks during the course of the cross examination he agreed that with the history outlined it would seem more likely that the hearing loss related to recurrent middle ear infection.

36. Dr Moore also agreed with the opinion of Dr Coman that Mrs Beasleigh's hearing impairment would still have occurred even with work conditions removed. He felt it most likely that there would have been steady progression of her hearing loss since childhood.

37. Dr Moore said that there would always be some question as to why the hearing in the right ear was worse than the left. In response to Mr Dickson he said that hearing loss may be asymmetric but that symmetric loss was more common.

38. When asked whether with the applicant's level of hearing would she be capable of performing her normal duties of a telephonist Dr Moore replied in the affirmative.

39. Dr Moore was referred by the Tribunal to his report of 10 October 1994 (T67) in which he reported that the audiometric examination at that time had revealed a severe high frequency loss which was a little more pronounced in the right ear. Dr Moore said that looking at that audiogram now, he would say more than a little.

Evidence of Dr W Earnshaw

40. Dr Earnshaw, a specialist ENT surgeon, reported that he had first seen the applicant in 1982. A copy of his written report to Telecom was included in the T documents (T7) but Dr Earnshaw no longer had a copy of clinical notes taken at the time. That was confirmed in his letter to Dr Norman dated 3 March 1997 (Exhibit A). When seen she had normal healthy ear drums and an audiogram had shown bilateral high frequency sensori-neural hearing loss and that was worse in the right ear. In his written report he stated:

"This lady appears to have suffered trauma from a shriek exposure but this has not in any way affected her ability to work."

41. Later in his evidence in chief Dr Earnshaw agreed that he had seen the applicant again in 1997. He had recorded that she had had ear problems as a child, with some infections. When he had examined her in 1997 he had written:

"Mild changes which would indicate possible scarring but healthy eardrums."

He said that the scarring he had observed was part of the spectrum of the condition that Dr Coman had described as tympanosclerosis. Dr Earnshaw had considered both tympanic membranes to have the same appearance.

42. Dr Earnshaw said that it was possible to have chronic serous otitis media which was not apparent on his examination but not likely.

43. When asked whether he had seen other people from Telecom who had been telephone operators and had sustained hearing damage as a result of shrieks Dr Earnshaw said that from memory, he had. He did not deny in cross examination that his experience of ear damage from telephone headsets would be very rare. He agreed that the applicant did have some underlying condition already, in that she did have high frequency loss in both ears. He had earlier reported that she had told him that she did not think that she had had any shriek exposures in the left ear.

44. In further cross examination, Dr Earnshaw said that if one assumed that the difference in hearing between the right and left ears was due to shrieks in right ear, then the difference would not have any impact on her ability to work as a teachers Aide, or in sales or retail, which had been given as examples.

45. Dr Earnshaw attributed the difference in hearing to the shrieks but all he could say was that in relation to her work at Telstra that work with Telstra had caused a small amount of deafness in one ear. He calculated that the difference in hearing loss between each ear on the Commonwealth Acoustic Laboratory table was 4.7%. He agreed that a difference of 4.7% was not much. He did not disagree with the suggestion that based on the 1982 audiogram and subsequent audiograms whatever had caused the difference between the right and left ears had occurred prior to March 1982.

46. When Mr Dickson referred to the opinions expressed by Dr Coman in Dr Coman's written report Dr Earnshaw said that he did not agree with the opinion of Dr Coman that the cause of the hearing loss was chronic suppurative otitis media. Dr Earnshaw did agree in response to a question from Mr Dickson that there was nothing about the audiometric test that would enable him to say that the changes are more consistent with shriek than other causes.

47. Dr Earnshaw indicated though that the audiometric testing had revealed high frequency inner ear deafness and he said that it was unusual to get inner ear deafness with otitis media. It was reasonably rare - not common.

48. Dr Earnshaw stated that the applicant had told him that she had some ear infections in childhood. He was not aware of the history of glue ears.

49. When it was put to Dr Earnshaw that the work with Telstra had not had any effect on her hearing Dr Earnshaw replied:

"Well, I mean, no one can be certain."

50. In response to a question from the Tribunal Dr Earnshaw said that it was his opinion that the applicant had had some sort of degenerative change in both ears, which had been responsible for hearing loss in each ear but it was hard to determine the possible cause. He also said that degenerative loss did not necessarily have to be symmetrical. He said that it was possible that the right ear may have been worse anyway.

Evidence of Dr M A Menzies

51. The third ENT specialist surgeon to give evidence was Dr M A Menzies. Dr Menzies gave his evidence by telephone. A written report from Dr Menzies to Telecom dated 20 December 1991 was included in the T documents (T13). Further reports are at T15, T20, T50 and T51.

52. In the first written report Dr Menzies stated that he had seen the applicant on that day. She had reported hearing loss following a shriek the day before but examination on that day had revealed bilateral glue ears, which was a condition not related to loud noises. An audiogram had shown a high tone hearing loss which was inner ear in type and which he thought was due to the shriek. The high tone hearing loss was however on both sides. In a subsequent report dated 6 January 1993, he stated that she could not recall a shriek in the left ear but may have had one in the past (T15).

53. In the report of 6 January 1993 Dr Menzies said that he thought it most likely that her hearing loss was due to previous shriek exposure but he could not be absolutely definite on that. In a later report he stated that he felt that her total hearing loss was due to noise exposure (T20).

54. In his evidence in chief Dr Menzies said that when he saw the applicant in 1993 he did not see any evidence of chronic otitis media. Audiograms between 1991 and 1994 did not show any significant change.

55. Dr Menzies said that he had seen other telephonists in the 80's who had ended up with permanent loss in the higher frequencies. He did not provide any further detail but said that he had thought that the shrieks had been responsible. He no longer receives referrals because of shrieks. He said that a safe noise level was dependent on the duration and intensity of the noise. He quoted a level of 95db for 8 hours as being capable of damage whereas 120db for 5 minutes or 135dB for 1 second could cause damage. He agreed in cross examination that the applicant had not described a noise at the level of 135dB. He also agreed that any noise exposure between 1991 and 1994 had not resulted in any deterioration in hearing.

56. Dr Menzies agreed that he could not say what had happened prior to 1991. He understood that Telecom had put noise limiters in place in 1983. When referred to the opinions expressed by Dr Coman, Dr Menzies said that he could not say that suppurative otitis media in the past had been responsible for the hearing loss. He agreed that shrieks in the right ear would not be expected to have resulted in binaural hearing loss.

57. Dr Menzies was in agreement with the opinion of the earlier medical witnesses that the applicant would be capable of performing her normal duties. When asked whether, if work factors had been removed, the applicant's hearing condition would still have occurred, Dr Menzies said that he could not say "yes" or "no".

58. Dr Menzies said that he was not able to comment on the applicant's childhood problems.

Evidence of Dr W Coman

59. The last medical witness called was Dr W Coman. Dr Coman has been a specialist ENT surgeon since 1966 and Associate Professor of Surgery at the University of Queensland.

60. In the report to the respondent dated 4 December 1996 (T139) Dr Coman recorded that the applicant had had her adenoids and tonsils removed as a child. She had suffered earache and middle ear infections in childhood. He noted that in 1991 she had been treated for glue ears. His clinical examination had revealed the right tympanic membrane to be tympanosclerotic and the left to have some peripheral scarring. An audiogram had shown bilateral sensori-neural hearing loss and he had assessed her hearing loss according to the National Acoustic Laboratories Hearing Handicap Table at 7.6%.

61. In that written report he stated that Mrs Beasleigh was suffering from bilateral sensori-neural hearing loss and that he believed that the cause of the hearing loss was the past history of chronic suppurative otitis media, the most recent episode being in 1991 when she was diagnosed suffering glue ear. He did not believe on the balance of probabilities that the employment with Telstra had contributed in a material degree to the contraction, aggravation, acceleration or deterioration of Mrs Beasleigh's condition.

62. Dr Coman further stated that if there had been a contribution from her work then it had been temporary. Shrieks in the right ear would not have been expected to have caused binaural hearing loss and if work factors had been removed the applicant's hearing loss would still have occurred. He believed that there had been steady progression of her hearing loss since childhood.

63. In his evidence in chief Dr Coman confirmed that he still held to the views expressed in the above written report. In that report he had also stated that with her level of hearing, she would be capable of performing her normal duties.

64. Dr Coman told the Tribunal that noise induced hearing loss occurs over a long period. Usually one needs more than 100 db and certainly 80 dB over three hours. Noise induced hearing loss is cumulative. A single event such as an explosion near the ear can result in hearing loss but such a level is associated with considerable pain. The applicant did not report significant pain with the shrieks.

65. Dr Coman stated that he could not say how long the tympanosclerosis had been present but there was no doubt it was prevent when he examined her in 1996. He said that tympanosclerosis was a monument to previous ear infection. He could not find any evidence that exposure to a shriek as described, would produce such profound hearing loss.

66. Dr Coman said that it was uncommon to see recurrent otitis media in adults without a history of ear infections in childhood. In relation to the causes of binaural sensori-neural hearing loss Dr Coman said there was a number of causes. Conditions included would be infections, drugs, aging, familial cochlear degeneration etc. In the case of the applicant he regarded the difference in hearing loss between the two ears to be minimal.

67. When cross examined by Ms Johnson, Dr Coman said that mixed hearing loss does occur with infection with sensori-neural loss being less common than conduction hearing loss. He referred to reports of sensori-neural hearing loss associated with infection having been reported in overseas literature and provided specific references in support. He said that shrieks were not a recorded method of noise induced hearing loss.

68. In further cross examination reference was made to the absence of tympanosclerosis in the reports of other ENT surgeons. Dr Coman said that he could not speak for other ENT surgeons but was most definite that the changes which he had described were present at the time of his examination.

Reports of Dr R C Jackson

69. The applicant had also been seen by another ENT surgeon, Dr R C Jackson, and reports prepared by him were included in the T documents. Dr Jackson was not available for cross examination.

70. In his report dated 12 May 1993 to Telecom (T31) Dr Jackson recorded that Mrs Beasleigh had stated that there had been many noises prior to 1984. The shrieks that she complained of however had commenced with new equipment in 1984. She had suffered one particularly loud shriek in 1985. She had noticed a change in hearing since 1984-1985. General ENT examination had revealed no obvious abnormality. Audiogram had shown typical high frequency sensori-neural deafness. In that letter Dr Jackson made no comment about the reason for the bilateral hearing loss nor did he make any reference to her previous history of ear problems. He did record that she had had a tonsillectomy. He attributed her hearing loss to noise exposure at work. He considered she was fit to return to work subject to her having peak clipping facilities as were incorporated in the Telecom headsets.

71. In a letter written to Dr Cardell on 19 July 1994 (T61) Dr Jackson stated that her hearing had deteriorated a little further since he had last tested her in 1993. Again he made no reference to ear infections experienced during 1991-1994. He referred to her anxiety and frustration for which her hearing problems were partially responsible. He commented in that letter that Mrs Beasleigh had some "mild hearing disability" and that if she were to be classed as medically unfit then it would have to be for psychiatric reasons and not for hearing reasons.

72. Apparently as a result of that report the applicant was referred to a Psychiatrist, Dr Brian Hutchinson, whose report is also in the T documents. Dr Hutchinson reported that Mrs Beasleigh did not suffer from any psychiatric disorder. He expressed the opinion that she had no work related psychiatric condition (T66).

73. In reply to a series of questions forwarded to him by the Reconsideration Delegate on 29 January 1995, Dr Jackson advised that he did not feel that otitis media had contributed materially to Mrs Beasleigh's high frequency sensori-neural deafness. He agreed that shrieks in the right ear would not be expected to have resulted in a binaural hearing loss. He also believed that Mrs Beasleigh had probably not been noise exposed since 1984 (noise limiters had been introduced in 1983).

Other Relevant Medical Information

74. Sick leave records included in the T documents provide the following information:

4/1/91 earache

18/1/91 earache

16/12/91 earache

23/6/92 earache

21/9/92 earache

29/10/92 sore throat and blocked ears

7/9/93 ears blocked - off 1 week

16/10/93 sore ears 20/10/93 sore ears

2/11/93 ears pulsing and clicking

28/1/94 bilateral middle ear infection

17/3/94 both ears blocked

8/12/94 earache and sore throat

25/1/95 sore throat and ear pains

28/1/95 ear pains

75. In addition Dr Cardell, Mrs Beasleigh's local doctor, certified her unfit for duty from 5 August 1994 to 9 August 1994 and Dr Feirell had certified her unfit for four days from 22 September 1994 due to painful right ear. In March 1994 a Dr Ray Johnson had certified Mrs Beasleigh unfit for work due to eustachian obstruction.

76. Certificates had been provided by Dr Cardell covering the period 19 May to 19 July 1994 in which he stated that she was unfit for duty due to stress related to problems at work.

77. In November 1994 Dr Greg Rolls, Commonwealth Medical Officer, recommended that because of her inability to hear words he would recommend deployment in order to avoid further anxiety related to stress. He recommended deployment to work where hearing is not crucial or likely to cause anxiety (T780).

Review of Medical Evidence

78. It is not disputed that the applicant had been exposed to shrieks while working as a telephonist at Telstra up until 1995, and we so find. It is also not disputed that the applicant has bilateral sensori-neural hearing loss with a slightly greater loss in the right ear. Dr Earnshaw assessed the difference in hearing loss between both ears at 4.7% which he regarded as "not much". Dr Moore had originally described the severe high frequency loss as "a little more pronounced in the right ear" although in a reply to a question from the Tribunal, he said that he would now say "more than a little". Dr Coman was of the opinion that the difference in hearing loss between the two ears was minimal.

79. The medical evidence clearly indicates that the high frequency hearing loss identified can be noise induced but high frequency loss is not specific to noise exposure. Similar type hearing loss can occur as a result of many other causative factors.

80. While both Dr Menzies and Dr Jackson had expressed the opinion that the exposure to shrieks had caused bilateral hearing loss, they were the only ENT surgeons to provide reports who did not, in the view of the Tribunal, offer an adequate explanation for the fact that the left ear also had a high frequency loss. Their only explanation was to suggest that the applicant may have had a shriek in the left ear which she did not remember. Such an explanation seems unlikely when one has regard to the fact that the applicant had reported shrieks on a number of occasions and that she had not recalled any shriek in her left ear and, in addition, no specialist who had examined her at those times had recorded any shrieks in the left ear.

81. Neither Dr Menzies nor Dr Jackson had made any reference to other conditions which could cause sensori-neural hearing loss. It should also be noted that although Dr Menzies had stated that he feels the hearing loss to be due to noise exposure. In an earlier report of 6 January 1993 he said that although he thought it most likely that hearing loss was due to shriek exposure he could not be absolutely definite.

82. All surgeons agreed that a shriek in the right ear would not be expected to cause bilateral hearing loss. Dr Earnshaw did not refer to other possible causes of the hearing loss in the left ear in his reports but during the course of his evidence to the Tribunal he said that he believed that the applicant had some type of degenerative change in both ears. He attributed the 4.7% difference in hearing loss between the two ears to the shrieks. When questioned by the Tribunal however he said that degenerative changes did not have to be symmetrical and that it was possible that the right ear had always been worse.

83. Towards the end of his cross examination, it was put to Dr Earnshaw that the applicant's work with Telstra had not had any effect on her hearing. Dr Earnshaw replied that no one could be certain. When the same question was put to Dr Moore and Dr Coman they each agreed that the applicant's hearing impairment would still have occurred even with work conditions removed.

84. Although Dr Moore in his original reports had attributed the hearing loss to shrieks he changed that opinion during the course of his evidence when he was made aware of more detail in relation to the applicant's previous ear problems. Dr Moore, while not completely excluding the possible contribution of noise to the greater loss in the right ear, agreed that it was more likely that her hearing loss related to past middle ear infection, rather than shrieks. In the context of a single condition he also agreed that although hearing loss could be asymmetrical, a symmetric loss was more common.

85. The Tribunal was not provided with any convincing evidence that exposure to shrieks had caused any additional hearing loss as far as the applicant was concerned. We know that bilateral sensori-neural loss was present at the first recorded ENT assessment by Dr Earnshaw in 1982. Subsequently on the applicant's own evidence her concerns about her hearing had begun really in the late 1980s and early 1990s. Her problems had become particularly acute during 1993-1994. In 1991 she had presented to Dr Menzies complaining of hearing loss following a shriek. At that time Dr Menzies noted the presence of bilateral glue ears which had caused a temporary additional hearing loss over and above the sensori-neural loss earlier identified.

86. Dr Moore had also identified middle ear congestion on another occasion when the applicant had been referred to him by her own general medical practitioner with increased impairment of hearing. That also caused a transient additional impairment of hearing. The evidence recorded above also has identified numerous ear infections based on evidence from the applicant, sick leave reports and medical certificates provided by her local doctors. As noted the infections had been particularly prominent during 1994 as a result of which the applicant had experienced episodes of anxiety and stress and the latter problems had resulted in her inability to continue to work as a telephonist beyond January 1995.

87. We are satisfied that the applicant experienced a large number of shrieks at various times during the 1980s and early 1990s. Dr Earnshaw in cross examination did not disagree with the suggestion that based on the 1982 audiogram and subsequent audiograms whatever had caused the difference between the left and right ears had occurred prior to March 1982. Dr Menzies reported that any noise exposure between 1991 and 1994 had, from examination of audiograms, not resulted in any deterioration in hearing.

88. As noted, Dr Coman stated that noise induced hearing loss is cumulative and the evidence does not support any cumulative hearing loss during the years that audiometric evaluation of any hearing loss related to shrieks is available.

89. Dr Earnshaw did not deny that his experience of ear damage from telephone headsets would be very rare and he could only say that from memory he thought that he had seen telephone operators who had sustained ear damage as a result of shrieks. Dr Menzies said that he had seen telephonists in the 1980s who had ended up with permanent loss in the higher frequency range and he had thought that shrieks were responsible. Dr Coman said that he could find no evidence that exposure to shrieks as described would produce such profound hearing loss.

90. Dr Jackson recorded that the applicant had told him that the shrieks of which she complained had commenced with new equipment in 1984 and that she had suffered one particularly loud shriek in 1985. She had noticed the change in her hearing since 1984-1985. Yet Dr Jackson also expressed the opinion that based on the provision of noise limiters in 1983 the applicant had probably not been noise exposed since 1984.

91. Dr Coman reported that at his examination in 1996 tympanosclerosis was seen. He said that tympanosclerosis was a monument to previous infection. In 1997 Dr Earnshaw reported that his examination had revealed some possible scarring which he would not have described as tympanosclerosis. He said however that the scarring which he had noted was part of the spectrum of the condition of tympanosclerosis. Apart from Dr Earnshaw the other ENT surgeons who gave evidence had not examined the applicant either at the same time as Dr Coman or subsequent to that time.

92. After consideration of all the medical evidence the Tribunal finds the opinion of Dr Coman (which was essentially supported by Dr Moore) to be the most persuasive. As we have said no objective evidence was produced to establish a clear relationship between the shrieks and the hearing loss and there is little doubt that the greatest deterioration occurred during the years that the recurrent middle ear infections were prominent. While all the specialists agreed that sensori-neural hearing loss was more often related to causes other than infection, no surgeon disagreed with Dr Coman or Dr Moore that infection could at times cause such a hearing loss.

93. In the case of the applicant it was noted that these infections had first occurred in childhood but had resulted in great anxiety and stress to her during 1993-1994. It is more likely than not that the anxiety caused by the infections has been responsible for her withdrawal from telephonist duties at the end of 1994 to early 1995.

94. Apart from the above aspects it is noted that all five surgeons are of the opinion that her hearing level would not prevent her from continuing to carry out the normal duties of a telephonist. We accept their assessment in this regard. It follows in our view that the applicant is not incapacitated for work because we are not satisfied the applicant suffered an injury as defined which has resulted in her incapacity to engage in work as a telephonist.

95. For all these reasons the Tribunal will affirm the decision under review.

I certify that this and the twenty-three (23) preceding pages are a true copy of the decision and reasons for decision herein of Mr K L Beddoe (Senior Member), Mrs H M Pavlin (Member) and Dr K P Kennedy OBE (Member)

Signed: M Boyle

Associate

Date/s of Hearing 10 and 11 September 1998

Date of Decision 22 February 1999

Counsel for the Applicant Ms Johnson

Solicitor for Applicant Poteri Woods

Counsel for the Respondent Mr Dickson

Solicitor for the Respondent Standish Partners