Marcello and Telstra Corporation Limited [2002] AATA 30 (18 January 2002)

Last Updated: 3 May 2002

DECISION AND REASONS FOR DECISION [2002] AATA 30

ADMINISTRATIVE APPEALS TRIBUNAL )

GENERAL APPEALS DIVISION ) No N2000/644 ) N2000/1411

Re Danielle Stella Marcello

Applicant

And Telstra Corporation Limited

Respondent

DECISION

Tribunal M J Sassella, Senior Member Dr MEC Thorpe, Member

Date 18 January 2002

Place Sydney

Decision The decisions under review are affirmed and the Applicant qualifies for no costs in respect of these applications.

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

Senior Member

CATCHWORDS

WORKER'S COMPENSATION - claim for permanent impairment by way of hearing loss - compensable temporary aggravation of pre-existing condition - no industrial deafness found - permanent condition not caused by headset or work conditions - conditions attributable to employment were temporary aggravations of otitis externa - compensation not payable for permanent pre-existing condition

Safety, Rehabilitation and Compensation Act 1988 - ss. 4(1) "ailment", "disease", "impairment", "injury", "permanent", (9), 14(1), 19(2), 24(1), (2), (4), (5), (6), (7), 27(1), 28(1), (3), (4), (5).

REASONS FOR DECISION

M J Sassella, Senior Member

Dr MEC Thorpe, Member

History of application number N2000/1411

1. On 30 December 1998 Danielle Stella Marcello ("the Applicant") lodged a claim for compensation with Telstra Corporation Limited ("the Respondent") (T9). This claim was made in respect of recurrent ear infections, hearing loss and perforation of the left ear drum.

2. On 27 May 1999 the Respondent determined that it was liable to pay the Applicant compensation in respect of "aggravation of external otitis" (T42). However it was also determined that the effects of the compensable injury had ceased on and from 24 June 1998. It was the Respondent's opinion that, because the injury was a temporary aggravation of the external otitis, liability applied only until the date of the termination of the Applicant's employment, that date being 24 June 1998.

3. On 28 June 1999 the Respondent received a request for reconsideration of the above determination (T47). This request also suggested that the Applicant had a 10% whole person impairment in accordance with tables 7.1 and 7.2 in the Comcare guide.

Decision under review in application number N2000/1411

4. On 16 July 1999 the Respondent affirmed the determination of 27 May 1999 (T50, T51). It noted the reports of Drs Kamenyitsky, Kahn and Gillam and found that, on the balance of probabilities, the Respondent was no longer liable for compensation payments since the condition was caused by the use of foam covered headsets which the Applicant ceased using on 24 June 1998. Drs Kamenyitsky and Gillam had both agreed that the headsets were the cause of the aggravation, albeit with reservations in Dr Gillam's case. Dr Kahn had examined the Applicant after her employment with Telstra ceased and he found no evidence of infection.

5. On 5 September 2000 the Applicant lodged with the Administrative Appeals Tribunal ("the Tribunal") an application for review of this decision.

6. On 22 September 2000 the Tribunal granted the Applicant an extension of the time for the lodging of this application so that the late lodgement on 5 September 2000 was valid.

History of application number N2000/644

7. On 26 July 1999 the Applicant lodged with the Respondent a claim for permanent impairment (T53).

8. On 3 August 1999 the Respondent determined that the Applicant was not entitled to a lump sum payment for permanent injury (T54). This was because of the decision to cease all liability on 27 May 1999 (T42), a decision affirmed on 16 July 1999 (T50, T51), a decision still standing as at 3 August 1999.

9. On 3 and 14 September 1999 the Applicant requested a reconsideration of the above determination, on the latter date providing reasons for the request (T57, T59). The Applicant stated that the "decision of the Delegate is wrong in law and against the weight of evidence." It was further stated that cessation of the Applicant's employment with the Respondent was not a valid reason for denying liability for permanent impairment.

Decision under review in application number N2000/644

10. On 28 February 2000 the Respondent affirmed the decision under review in relation to permanent impairment (T69, T71). The Respondent noted the opinions of Drs Scoppa and Wilson and found that the Applicant had no permanent impairment related to her employment with the Respondent. These opinions will be examined in some detail later in these reasons for decision.

11. On 28 April 2000 the Applicant lodged an application for review of this decision with the Tribunal (T1). That application was dated 26 April 2000.

Relevant legislation

12. The following provisions from the Safety, Rehabilitation and Compensation Act 1988 ("the Act") are relevant: sections 4(1) "ailment", "disease", "impairment", "injury", "permanent", (9), 14(1), 19(2), 24(1), (2), (4), (5), (6), (7), 27(1), 28(1), (3), (4), (5).

Safety, Rehabilitation and Compensation Act 1988

...

SECT 4

Interpretation

4. (1) In this Act, unless the contrary intention appears:

...

ailment means any physical or mental ailment, disorder, defect

or morbid condition (whether of sudden onset or gradual

development);

...

disease means:

(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;

...

impairment means the loss, the loss of the use, or the damage or

malfunction, of any part of the body or of any bodily system or

function or part of such system or function;

injury means:

(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;

...

permanent means likely to continue indefinitely;

...

(9) A reference in this Act 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 he

or she was engaged by the Commonwealth or a licensed corporation in

that work or any other work immediately before the injury happened.

...

PART II - COMPENSATION

Division 1 - Injuries, property loss or damage, medical expenses

SECT 14

Compensation for injuries

14. (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.

...

Division 3 - Injuries resulting in incapacity for work

SECT 19

Compensation for injuries resulting in incapacity

...

19. (2) Subject to this Part, Comcare is liable to pay compensation to

the employee in respect of the injury, for each of the first 45

weeks (whether consecutive or otherwise) during which the employee

is incapacitated, of an amount calculated under the formula:

NWE - AE

where:

NWE is the amount of the employee's normal weekly earnings; and

AE is the amount per week (if any) that the employee is able to

earn in suitable employment.

...

Division 4 - Injuries resulting in impairment

SECT 24

Compensation for injuries resulting in permanent impairment

24. (1) Where an injury to an employee results in a permanent

impairment, Comcare is liable to pay compensation to the employee in

respect of the injury.

(2) For the purpose of determining whether an impairment is

permanent, Comcare shall have regard to:

(a) the duration of the impairment;

(b) the likelihood of improvement in the employee's condition;

(c) whether the employee has undertaken all reasonable

rehabilitative treatment for the impairment; and

(d) any other relevant matters.

...

(4) The amount assessed by Comcare shall be an amount that is the

same percentage of the maximum amount as the percentage determined

by Comcare under subsection (5).

(5) Comcare shall determine the degree of permanent impairment of

the employee resulting from an injury under the provisions of the

approved Guide.

(6) The degree of permanent impairment shall be expressed as a

percentage.

(7) Subject to section 25, where Comcare determines that the

degree of permanent impairment of the employee is less than 10%, an

amount of compensation is not payable to the employee under this

section.

...

SECT 27

Compensation for non-economic loss

27. (1) Where an injury to an employee results in a permanent

impairment and compensation is payable in respect of the injury

under section 24, Comcare is liable to pay additional compensation

in accordance with this section to the employee in respect of that

injury for any non-economic loss suffered by the employee as a

result of that injury or impairment.

SECT 28

Approved Guide

28. (1) Comcare may, from time to time, prepare a written

document, to be called the "Guide to the Assessment of the Degree of

Permanent Impairment", setting out:

(a) criteria by reference to which the degree of the permanent

impairment of an employee resulting from an injury shall be

determined;

(b) criteria by reference to which the degree of non-economic loss

suffered by an employee as a result of an injury or impairment shall

be determined; and

(c) methods by which the degree of permanent impairment and the

degree of non-economic loss, as determined under those criteria,

shall be expressed as a percentage.

...

(3) A document prepared by Comcare under subsection (1), and an

instrument under subsection (2), have no force or effect unless and

until approved by the Minister.

(4) Where Comcare, a licensed authority, a licensed corporation or

the Administrative Appeals Tribunal is required to assess or

re-assess, or review the assessment or re-assessment of, the degree

of permanent impairment of an employee resulting from an injury, or

the degree of non-economic loss suffered by an employee, the

provisions of the approved Guide are binding on Comcare, the

licensed authority, the licensed corporation or the Administrative

Appeals Tribunal, as the case may be, in the carrying out of that

assessment, re-assessment or review, and the assessment,

re-assessment or review shall be made under the relevant provisions

of the approved Guide.

(5) The percentage of permanent impairment or non-economic loss

suffered by an employee as a result of an injury ascertained under

the methods referred to in paragraph (1) (c) may be 0%.

...

Background

13. The Applicant was born on 7 January 1963 in Mauritius and migrated to Australia in 1986 (T29). She is married with two teenage children. The Applicant worked for the Respondent from 1988, initially working as a typist and then being trained as a customer service representative (T5). Prior to coming to Australia she was employed as a travel agent consultant and receptionist (T61).

Documentary medical and other evidence

14. On 14 December 1994 the Applicant presented to Dr Tat with pharyngitis (T37). He noted a "perforated right tympanic membrane, but she did not complain of any problem."

15. On 28 May 1996 the Applicant was granted a medical certificate by Dr Tat excusing her from "answering the phone all day without a break" (T3). This was in respect of the condition otitis media.

16. On 4 June 1996 Dr Chowdhury granted the Applicant a medical certificate excusing her from work for the following two days (T4). The Applicant was suffering from a middle ear infection.

17. On 13 June 1996 Dr Winkler wrote to Dr Chowdhury indicating a diagnosis of otitis externa with granulations on her tympanic membrane (Ex R2). He prescribed Sofradex to treat the problem.

18. On 26 March 1997 Dr Tat saw the Applicant and again noted a perforated right tympanic membrane (T37).

19. On 9 March 1998 Dr Kamenyitsky from Health Services Australia examined the Applicant at the Respondent's request (T5). He noted that the Applicant had on average three ear infections a year that affected either ear. The most severe occasion was in 1996 when the Applicant had two weeks off work and was referred to a specialist. Dr Kamenyitsky noted a small perforation in the right ear drum and generally scarred external canals. Further, he noted that the Applicant had small ear lobes anatomically different to the general population. An audiogram showed high tone hearing loss in both ears. Dr Kamenyitsky recommended that the Applicant should not wear the standard foam covered headset because it was most likely contributing to the ear infections. However she was also unable to wear the alternative headset unit because it slipped from her "slightly deformed ears." He also recommended finding alternative headsets that would better suit the Applicant. Dr Kamenyitsky diagnosed otitis externa and stated that this condition was likely to be troublesome as long as the Applicant used a telephone, particularly with a headset. He noted also that otitis externa can lead to potentially serious internal abcesses.

20. On 18 March 1998 the Applicant was granted a medical certificate declaring her unfit for work for two days due to "tension headaches/dizziness" (T6).

21. On 14 April 1998 the Applicant was granted a medical certificate excusing her from work for two days due to an ear infection (T7).

22. On 11 May 1998 the Applicant was granted a medical certificate excusing her from work from 11 May 1998 to 18 May 1998 due to chronic otitis media (T8).

23. On 4 June 1998 on the initial claim for compensation (T9) the Applicant stated that she began to experience headaches and pain in the left ear from approximately 1993. By 1996 she was forced to take sick leave due to "lots of pain in both ears." The Applicant continued to suffer recurrent ear infections on both sides and hearing loss from a perforated ear drum.

24. On 8 September 1998 the Applicant again presented to Dr Tat (T37). She was suffering from left jaw pain and informed the doctor that she had been having recurrent left ear infections.

25. On 1 December 1998 Dr Goyal provided a report on the Applicant (T10). He took an audiogram which showed high tone hearing loss of "moderate to severe levels." The Applicant told Dr Goyal that she had never suffered any ear problems prior to her employment with Telstra. He concluded that the Applicant would not be able to be employed in noisy environments or where she would have to wear headphones.

26. On 4 December 1998 Dr Goyal was sent a letter from Dr Khan (Ex R5). He noted inconsistencies in her hearing tests and stated that the audiograms did not suggest industrial deafness since the Applicant's employment "does not lead to this kind of deafness." Further, there was no sign of outer ear infection and if the headset had been responsible then other employees would also have caught similar infections. He concluded inter alia:

"...My impression is that she has had middle ear problems in the past and this has affected her hearing and therefore I doubt there is any compensable hearing loss..."

27. On 11 January 1999 Julia Langrehr took notes from a verbal report on the Applicant by Dr Kamenyitsky (T14). The report found the following:

1) The Applicant should not wear the foam covered headset as this would cause her have more ear infections.

2) The Applicant cannot wear the alternative device due to a genetic variation in her ear, the shape of which precludes the wearing of the microphone.

3) The problem is long term and if the Applicant were to continue using a headset it could lead to permanent and serious damage.

28. Dr Kamenyitsky further recommended that the Applicant be given a "medical redundancy."

29. On 10 February 1999 Dr Gillam (ear, nose and throat surgeon) reported on the Applicant at the request of the Respondent (T29). Dr Gillam found that the Applicant was suffering from bilateral sensorineural deafness. She was found to have 18.3% hearing loss in the left ear and "12.3 %" loss in the right ear. Binaural hearing loss was also assessed at 12.3%. The hearing loss was found to be permanent and not remediable by surgery. It might be assisted by a hearing aid. Dr Gillam opined that headset trauma would be an unusual cause of middle ear disease, being more likely to cause external otitis. However, in view of the fact that the Applicant had not suffered any ear problems prior to her employment with the Respondent, he conceded that headset trauma may have contributed to and aggravated her ear infection. He was however "slightly uncomfortable" with that diagnosis. Dr Gillam responded to the Respondent's specific questions:

1) The Applicant suffered from deafness, tinnitus and headache.

2) The conditions were employment related aggravations.

3) Work-related factors aggravated and contributed to the recurrence of the condition.

4) The conditions were caused by headset trauma and [lack of] sterility.

5) The effects of these conditions are permanent in nature.

6) Restrictions on the Applicant's employability include secretarial work and any work that requires a telephone headset.

7) The wearing of hearing aids was recommended as a possible treatment.

30. On 31 March 1999 Dr Khan (ear, nose and throat surgeon) provided a report on the Applicant (T36). He noted the Applicant's medical complaints and their history and stated the following:

"In my view the hearing loss is unlikely to be due to infection from the headset or from working as a telephonist. It would seem she has had ear problems in the past, perhaps as a child, with discharging ears and perforations which have healed over the years. This however has left her with fairly marked hearing loss on both sides. If her headphones were responsible, one would expect to see otitis externa, that is infection of the outer ear, mainly involving the pinna on both sides or on the side that she was using the headphone on. This...does not normally lead to middle ear infection or perforations of ear drums. Also, one would expect the infection to be continuing all the time if [she] was using the same headphones and other people using the same headphones would probably get infections too...

"...The type and degree of deafness again is unlikely to be due to her work conditions...

"On the whole I feel that the ear problems which Mrs Marcello has had are very unlikely to be due to her headphones used at work..."

31. On 2 April 1999 Dr Sella Thurai, general practitioner, provided a brief medical history of the Applicant (T35):

* The Applicant presented on 23 May 1996 with left otitis media and externa. She failed to respond to antibiotics and was referred to Dr Winkler.

* In November 1996 and January 1997 she presented with similar ear infections.

* In April and May 1998 the Applicant again presented with similar infections.

32. On 26 July 1999 the Applicant's claim for permanent impairment contained a considerable amount of information in relation to the ear condition (T53). In addition to loss of hearing, headaches and dizziness the Applicant was suffering from "buzzing" in both ears as well as stress and anxiety. She stated she was experiencing pain most of the time causing restrictions in her usual activities such as housework or shopping. The Applicant experienced a great deal of pain in her head which also affected the ears. The buzzing in her ears also disturbed her sleeping pattern. Further the Applicant stated that she did not feel confident driving because of her inability to hear everything that was going on outside her vehicle. She was becoming more dependent on others for transport. Also, the heaviness in her head "makes me confused and distress when I have to cross busy road." The Applicant's relationships were also suffering:

"Since my injury I have not had a proper conversation when I can understand the person I'm talking to. Most of the time I have to ask family and friends to repeat themselves due to my lack of hearing...it has reduced my self-esteem and confidence, leaving me feeling like half of what I am. My relationship with my husband and children has greatly been affected, because I am not the wife or mother I used to be before my injury. I feel very sad by this."

33. The Applicant could no longer swim or run because of her conditions. Her range of activities was greatly reduced and she found it difficult to watch television or movies because of her hearing loss.

34. On 28 October 1999 Dr Scoppa (ear, nose and throat surgeon) reported on the Applicant (T61). He took a detailed history of the Applicant's employment and medical history. A pure tone audiogram suggested a "moderately severe bilateral mixed hearing loss." Loss of hearing was 35.1% for the left ear and 30% for the right. Binaural hearing loss was calculated to be 31%. In regard to the ear infections Dr Scoppa stated:

"Ms Marcello's description of her ear infections suggests that the first episode was a middle ear infection, and that second and third episodes were outer ear infections...If indeed Ms Marcello did have a middle ear infection then in my opinion this would not have been related in any way to her employment with Telstra as the use of headset would not predispose to middle ear infection.

"...[The second and third infections] probably occurred as a result of Ms Marcello scratching her ears because of the itch that was brought on by the use of the headset that she was using whilst working for Telstra as a CSR."

35. Dr Scoppa stated that the earaches suffered by the Applicant were "probably not related to any middle ear and/or outer ear infections that Ms Marcello may have developed during her period of employment with Telstra." However Dr Scoppa did find evidence of right temporo-mandibular joint dysfunction and that "this may have resulted from the pressure caused by the regular use of a headset over the area of the temporo-mandibular joints." He recommended that the opinion of a facio-maxillary surgeon be sought. Dr Scoppa further recommended that any stress that the Applicant was under during her employment with Telstra should be evaluated because such a temporo-mandibular joint dysfunction can result from a stressful environment. It could have also been contributed to by any abnormal neck position that was assumed whilst typing with one hand and answering the telephone with the other. In regard to hearing loss, Dr Scoppa found that, if his own audiometry results were confirmed, the hearing loss is unlikely to have been caused by the Applicant's employment as "such loss of hearing does not result from outer ear infection." Dr Scoppa then addressed the question of the Applicant's dysequilibrium which "apparently came on after her third ear infection." He thought this condition was unlikely to have been caused by the outer ear infection and was more likely due to the temporo-mandibular joint dysfunction and/or cervical spine abnormalities. In conclusion Dr Scoppa found that the Applicant was unfit for her previous duties due to her hearing loss, tinnitus and vertigo.

36. On 18 January 2000 Dr Wilson, oral and maxillo facial surgeon, reported on the Applicant at the request of the Applicant's representatives (T67). He also took a detailed work history from the Applicant. The Applicant told Dr Wilson that since leaving Telstra she had suffered no further ear infection, despite developing tinnitus and signs of depression. He noted upon examination that the "occlusal relationship between the upper and lower teeth is not ideal." Dr Wilson also noted pain and tenderness in the temporalis muscles on each side and opined that the Applicant's high level of tension and anxiety was causing this muscle pain. In conclusion he stated that the Applicant's tinnitus could be helped significantly by appropriate counselling and aversion therapy. He further noted that the specialists:

"seem to agree that the headset could have been an aggravating factor for her external ear infection but that it would not have been the cause of her middle ear infections...one wonders how or why the personnel officer at Telstra did not do everything to see that this lady was offered alternative employment as a person with hearing loss and recurrent ear infections would not be a suitable person for that type of work."

37. Dr Wilson found "no evidence of temporo-mandibular joint dysfunction "or any other abnormality associated with the orofacial region which would explain the tinnitus, vertigo or deafness." He stated that wearing a bite splint for three months might improve some of the symptoms.

38. On 10 May 2000 Dr Winkler wrote to Margaret Penman (Ex R3), audiologist, informing her of his June 1996 diagnosis (Ex R2). He stated that the Applicant should not be fitted with a hearing aid until such time as she had been assessed by an ear, nose and throat specialist.

39. On 17 March 2000 Ms Penman wrote to Dr Winkler informing him that the Applicant had a "bilateral sensory - neural loss in the low frequencies...the left revealed a severe sensory - neural loss in the high frequencies" (Ex R4).

40. On 27 June 2000 Dr Carroll (ear, nose and throat medicolegal consultant) reported on the Applicant at the request of the Respondent's representatives (Ex R1). He took a detailed history of the Applicant's conditions and he undertook a pure tone audiometric assessment. This assessment indicated a bilateral sensorineural hearing loss maximum in the high tones. Dr Carroll found a binaural impairment of 35.7% and made the following specific statements:

1) The Applicant does not suffer from industrial deafness.

2) None of the hearing loss is as result of injury sustained whilst employed by the Respondent.

3) None of the hearing loss can "reasonably be attributed to industrial noise. There is therefore no compensable whole person impairment. Her complaints of tinnitus are not work related."

Hearing and appearances

41. The Tribunal convened a hearing in this matter on 24 January 2001. Mr Robson of counsel represented the Applicant and Mr Kelly, also of counsel, represented the Respondent. The Tribunal took in the following documentary materials as exhibits:

* Exhibit TD1 - Documents prepared pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 - applicable to both applications.

* Exhibit R1 - Report of Dr R L Carroll, ear, nose and throat specialist, dated 27 June 2000.

* Exhibit R2 - Report of Dr Winkler, ear, nose and throat specialist, dated 13 June 2000.

* Exhibit R3 - Report of Dr Winkler dated 10 May 2000.

* Exhibit R4 - Selected documents from summons documents produced by Dr Winkler.

* Exhibit R5 - Selected documents from summons documents produced by Dr Khan.

* Exhibit R6 - Summons documents produced by Dr Tat.

* Exhibit R7 - Summons documents produced by the Valley Plaza Medical Centre.

* Exhibit R8 - Respondent's statement of facts and contentions dated 29 August 2000.

Findings on material questions of fact with reference to the evidence and other material in support of those findings

42. The Applicant's interest is in receiving lump sum compensation for a permanent whole person impairment involving hearing loss, headaches, dizziness, tinnitus, stress and anxiety (T53/103).

43. The Tribunal finds that the Applicant suffered from external otitis which was aggravated by the conditions of her employment when the Applicant claimed in respect of recurrent ear infections, hearing loss and perforation of the left ear drum. The Tribunal therefore finds that the Respondent's decision to accept liability was correct.

44. The Tribunal finds that the Respondent's decision that the effects of any compensable injury ceased on 24 June 1998, the date of cessation of the Applicant's employment, was correct. This is essentially because the only conditions attributable to the Applicant's employment were temporary aggravations of otitis externa.

45. The Applicant gave evidence before the Tribunal. She said that she had been medically examined prior to commencing work with Telstra. The examination had covered her hearing. No abnormality had been detected. The Applicant said she had no significant medical problems of any kind, including hearing, headache or any buzzing in the ear, prior to working for Telstra.

46. The Applicant traced her hearing difficulties to 1996, following episodes of ear infection. She has had continuous hearing problems since that time. The tinnitus commenced following the third episode of ear infection in 1996. She has had tinnitus ever since. She notices it especially at night and runs a fan to mask the effect.

47. The Applicant was asked about her headaches and explained that she has had regular, recurrent headaches since 1986 for which she takes painkillers.

48. In cross-examination counsel for the Respondent queried the Applicant's response to the effect that her hearing problems had commenced in 1996. He referred to a report by Dr Tat dated 14 December 1994 (T37) where the doctor said that the Applicant had presented with pharyngitis and he noticed that she had a perforated right tympanic membrane. This is a perforation of the ear drum. Thus, he said, her hearing problems must have commenced earlier than in 1996.

49. The Applicant agreed that she had had headaches prior to 1996. Counsel indicated that the Applicant suffered frequently from influenza and viral illnesses before 1996. The Applicant could not remember this. Counsel, however, referred to the sick leave records in T72. The Tribunal notes that these records indicate that the Applicant took sick leave for the following conditions as follows. In 1988 she had four days away because of bronchitis and upper respiratory tract infection. In 1989 she had six days away for headache, upset stomach, influenza and viral illness. In 1990 she had nine days of sick leave for infections, viral illness, migraine. In 1991 she took 10½ days off for similar reasons. Counsel continued in this vein through to 1995.

50. The Applicant insisted that her ear infections only ever commenced at work. She said she had no further infections after 1996 but had discharge from the ears up until 1998. Counsel indicated that these discharges occurred well after cessation of the use of headsets. He observed that Dr Sella Thurai dispensed several medical certificates for ear infections in April and May 1998 (T7, T8). The Applicant had told Dr Carroll that in June 2000 she had blown her nose and noticed an escape of air from the left ear.

51. Several ear doctors had identified problems with the hearing tests carried out on the Applicant (Dr Carroll, Ex R1/2-3; Dr Winkler, Ex R5). Counsel put to the Applicant that she had not fully complied with the doctors' requests. She said that she had tried her best.

52. The Applicant told her counsel in re-examination that she had tried using a headset up to 1998.

53. Dr R L Carroll, the ear, nose and throat specialist, was called to give evidence for the Applicant. He explained some differences between otitis media and otitis externa. With otitis media the ear is never itchy, there is pain, there is impaired hearing and there could be discharge. With otitis externa there is an itch, there is pain and there is discharge. When he saw the Applicant on 23 June 2000 (Ex A1) she had neither condition. There was evidence, however, of past instances of both conditions.

54. Dr Carroll explained that middle ear infections usually ascend from the nose. They can progress to the outer ear if an ear drum breaks. Infection does not travel from the outer to the inner ear. Dr Carroll did not agree with Dr Goyal (T10) that an infection can spread from the outer to the inner ear. In Dr Carroll's view, the headset could be an aggravating cause only. That should have ceased when the headset was not used any longer or when her employment ceased.

55. Dr Carroll found the Applicant's history of headaches inexplicable in relation to the use of a headset.

56. Dr Scoppa had written that "recovery from middle ear and outer ear infections is usually complete and total with no residual sequelae" (T61/124). Dr Carroll agreed in general with Dr Scoppa on this point.

57. Counsel put Dr Winkler's comments in Ex R2 and Ex R3 to Dr Carroll. Dr Winkler had examined the Applicant in 1996 and found otitis externa with granulations on her tympanic membrane. He intended seeing her after the granulations resolved but there was no follow up. He noted that she had not been fully evaluated and there was a possibility of cholesteatoma in her left ear. Dr Carroll explained that a cholesteatoma is a skin cyst out of place in the middle ear which erodes the bone. It can cause hearing loss, loss of balance and tinnitus but not headaches. There were no granulations when he saw the Applicant in June 2000. Dr Carroll said that disequilibrium can develop from otitis media but not otitis externa. The Applicant reported no disequilibrium when she saw Dr Carroll.

58. Dr Carroll discussed tinnitus. 35% of the population have the disease at some stage and 100% of the population have had transitory tinnitus. It usually accompanies sensorineural hearing loss or conductive hearing loss but it can co-exist with normal hearing. It cannot be verified or assessed as to its degree of seriousness. In the Applicant's case it would probably be present if she has the degree of hearing loss she asserts.

59. As regards the Applicant's hearing loss he regarded the available figures as unreliable, as explained in his report. She does not suffer from industrial deafness. That would require exposure to 85 decibels of noise over eight hours a day for 45 years of working life. At Telstra the decibel level is likely to be lower than 70. If she has no genuine hearing loss the Applicant may have no tinnitus. There was nothing in the Applicant's employment to cause sensorineural hearing loss.

60. The doctor considered that the Applicant could do telephone work even with the hearing loss he had recorded. She would need a volume control and/or hearing aids, but this would be quite feasible.

61. He assessed a whole person impairment level of only 5% in accordance with table 7.2 of the Comcare guide, however he did not see her as having any work-related impairment.

62. In cross-examination Mr Robson attempted to shift Dr Carroll from his position that an infection does not travel from the outer ear to the middle ear. This attempt was unsuccessful. In Dr Carroll's observation infections of the ear move from the internal to the external, never in the opposite direction.

63. Mr Robson put to Dr Carroll that there was evidence that headphones could assist in bringing about infections in the outer ear. Dr Carroll considered that such effects were in fact aggravations of pre-existing conditions. The infection is limited to the external ear and does not affect the middle ear. A middle ear infection cannot arise from the wearing of headphones. Dr Carroll refused to agree that an infection could travel to the inner ear where it is motivated by a virulent bacterium and a headphone earpiece is providing an ideal environment for an infection.

64. Dr Gillam was called by Mr Robson to give evidence. He said that headset trauma may have contributed to the Applicant's ear infection by way of aggravation. He said that the Applicant's hearing loss would be permanent. Dr Gillam disagreed with Dr Carroll that it is impossible for an infection to travel from the outer to the inner ear.

65. The Tribunal notes Dr Gillam's original report (T29) where he wrote:

"The stated cause, i.e. headset trauma, would in my opinion be an unusual cause of middle ear disease, being in itself a far more likely cause of external otitis involving the skin of the external ear canal.

"In the event, however, that I am obliged to rely on the dependability of her history and the absence of ear disease at the pre-employment medical it must be conceded that although unusual, headset trauma may have contributed to and aggravated her ear infection. Having said that, however, I am, I must say, slightly uncomfortable with that diagnosis."

66. In the Applicant's final submissions Mr Robson stressed that the Applicant's credibility had not been impugned and he submitted that Dr Gillam's evidence should be preferred to that of Dr Carroll as he was the more balanced expert witness. He had also been commissioned by the Respondent to provide his report. The Applicant's three conditions, hearing loss, tinnitus and headache, began in 1996.

67. In the Respondent's final submissions Mr Kelly agreed that there was no attack on the Applicant's credit. The Respondent accepted that Ms Marcello had exhibited symptoms. The degree of such disabilities as headache was, however, a problem.

68. Dr Kamenyitzky provided the strongest support for the Applicant. However, he did not explain in T5 or T14 what the relationship was, if any, between the Applicant's ear infections and her use of a headset. He simply accepted the Applicant's theory that there was a connection.

69. Dr Gillam saw headset trauma as an unlikely cause of middle ear disease (T29). He did not comment on any connection between ear infection and upper respiratory tract infection or viral infection. His evidence is highly equivocal.

70. Dr Goyal wrote (T53/112) on 19 July 1999 that the Applicant suffers from recurrent otitis externa and aggravation of otitis externa. She shows signs of otitis externa, scarred tympanic membrane and hearing loss. "[A]ggravation of otitis externa per se would not typically give these symptoms; however extension of external otitis to involve middle ear infection could lead [to] the symptoms; which in my opinion is the case with Mrs Marcello".

71. Against the Applicant's position are three ear, nose and throat specialists, Drs Khan (T36), Scoppa (T61) and Carroll (Ex R1). Dr Khan was the Applicant's treating specialist. Dr Scoppa was the Applicant's expert specialist.

72. Mr Kelly addressed the issue of the Applicant's headaches. These could not constitute a permanent impairment. No medical practitioner has provided an assessment related to the Comcare guide. They are of long standing, having occurred before 1996. In T9 the Applicant said she had them from 1993. In oral evidence she said they began in 1986. Additionally, the Applicant's attendance on general practitioners has reduced in recent years. Ex R7 and R8 suggest that she had seen a general practitioner only twice in the year 2000.

73. As regards the Applicant's hearing loss, Mr Kelly queried how much her hearing had reduced. She does not have industrial deafness (Ex R1, R5). Dr Khan considered that clinically the Applicant did not show any obvious handicap and was communicating quite well (T36/69), apparently even without a hearing aid. Dr Scoppa considered that if the degree and nature of hearing loss he obtained was confirmed by cortical evoked response audiometry that loss is unlikely to have been caused by Ms Marcello's employment with Telstra as such hearing loss does not result from outer ear infection (T66/125). If it is accepted that the Applicant has compensable hearing loss then it is likely that her tinnitus is also compensable.

74. The Tribunal cannot make findings as to any level of hearing loss as the audiometric results are inconsistent. A number of doctors comment on this, as indicated earlier.

75. As regards the Applicant's dysequilibrium, she told Dr Carroll that her balance was normal by 23 June 2000 but that when she has infections she could feel as if falling backwards or of spinning if bending forward. These effects would last a few minutes. As these effects occur only when the condition flares the Applicant's dysequilibrium is not permanent. She told Dr Carroll she had had no ear infections since 1997 (Ex R1/2), however there are several certificates from as late as 1998 (T7, T8), although no evidence for any later period.

76. Dr Carroll supported only a 5% whole person level of impairment if the Applicant's hearing loss is compensable.

77. The Tribunal has found that the effects of the Applicant's employment on her disabilities ceased on 24 June 1998. This involves a number of subsidiary findings. These are:

* The Applicant has suffered no permanent hearing loss as a result of her work for Telstra. The Applicant has hearing loss of an indeterminate level. Dr Goyal (T10; T53/112) found high tone hearing loss at a moderate to severe level in the left ear. Dr Gillam found 18.3% loss in the left ear and "12.3%" in the right ear (T29/51) [the right ear measurement should apparently be 10.8% - T29/55] and 12.3% bilaterally. However, he thought headset trauma an unusual cause of middle ear disease suggesting that the results would be external only. Dr Khan found moderate to marked sensory loss in both ears but thought the cause unlikely to be the headset (T36). He wrote,

"If her headphones were responsible, one would expect to see otitis externa, that is infection of the outer ear, mainly involving the pinna on both sides or on the side that she was using the headphone on. This type of infection is more like contact dermatitis does not normally lead to middle ear infection or perforations of ear drums. Also, one would expect the infection to be continuing all the time if she was using the same headphones and other people using the same headphones would probably get infection too. ... The type and degree of deafness again is unlikely to be due to her work conditions."

This was the state of the evidence before the decision-makers. Dr Scoppa (T66/124-125) commented on the doubtful audiometric results. He said that any middle ear infection had nothing to do with Telstra (T66/124). He considered that the headset may have caused the Applicant to scratch at her ears and that could have produced outer ear infection (T66/124). There was no ongoing middle ear or outer ear infection by October 1999 (T66/124). Dr Carroll's audiometric results indicated 35.7% binaural hearing loss but he was uncertain if absolute thresholds had been reached (Ex R1/2). He noted that Dr Gillam's assessment of 12.3% was much less than that recorded by himself and Dr Scoppa (Ex R1/3). He said that the Applicant's hearing loss was not caused by her employment, that she had no industrial deafness and that her "ear infections may have antedated her employment or developed during that time. Uncomplicated otitis externa does not lead to any permanent hearing impairment. It may cause a temporary conductive deafness if the external auditory canal occludes but this is reversible. It does not lead to perforation of the eardrum or otitis media. It is not associated with any sensorineural hearing loss. Otitis media is quite unrelated to the use of a telephone or headset. All the permanent ear abnormalities are therefore unrelated to her Telstra employment" (Ex R1/3). Dr Khan said there was no industrial deafness, that there were problems with the audiometric results and that middle ear problems in the past had led to the Applicant's hearing loss. It was doubtful that the Applicant's hearing loss was compensable (Ex R5). In the Tribunal's view the evidence is such that it cannot be satisfied on the balance of probabilities that the Respondent is in any way liable for the Applicant's hearing loss.

* Upper respiratory tract infection/viral effects.

* The Applicant's headaches are discussed in any detail only by the Applicant (T9), Dr Scoppa (T66/122) and Dr Carroll (Ex R1). However, as has already been noted, these commenced long before the Applicant suffered from ear infections. She also did not include headaches amongst the ongoing symptoms cited for Dr Scoppa (T66/123). She told Dr Carroll she still has frequent headaches (Ex R1/2). Dr Carroll did not assess these in that report but saw them as "inexplicable", presumably in relation to the Applicant's ear abnormalities, in his oral evidence. The Tribunal is unable to find sufficient evidence as to the severity or aetiology of any ongoing headaches to permit any confident finding linking the headaches with the Applicant's work for Telstra.

* The Applicant's "dizzyness" (the word she uses in T53) is taken to be the same as the dysequilibrium addressed by Dr Scoppa in T66. She seems not to have raised this symptom with anyone else. Dr Scoppa doubted that it was related to any outer ear infection. He thought it could be related to temporo-mandibular joint dysfunction or cervical spine abnormalities (T66/125). The Tribunal notes that Dr Wilson (T67) identified a less than ideal occlusal relationship between the Applicant's upper and lower teeth and "pain and tenderness in the temporalis muscles on each side and also in the masseter and pterygoids which are part of the masticatory muscle system" caused probably by her "high level of tension and anxiety" (T67/137). He saw nothing to explain her "vertigo", which the Tribunal takes to refer to her dizziness or dysequilibrium. Dr Wilson's findings concerning the Applicant's teeth do not relate to any work-caused disability. His findings as regards the temporalis muscles might possibly be descriptive of a compensable condition if there was evidence that Telstra caused the tension and anxiety. However, there has been no evidence advanced to that effect. The Tribunal finds that any dizziness, dysequilibrium or vertigo suffered by the Applicant is, on the available evidence, not compensable by the Respondent.

* The Applicant's "buzzing" (T53/103) most probably refers to tinnitus. The Tribunal accepts the medical evidence discussed earlier that was to the effect that tinnitus could be accepted as compensable if the Applicant's hearing loss were so accepted. The Tribunal has, however, found that the Applicant's hearing loss is not compensable and makes the same finding regarding tinnitus.

* The Applicant claimed for permanent impairment for stress and anxiety. The Tribunal finds that the Respondent is not liable for any such condition of the Applicant for the same reasons as it has decided that Telstra is not liable for any tension and anxiety.

Conclusion

78. The Tribunal has found that the Respondent's decision that all compensation liability ceased on 24 June 1998 was the correct or preferable decision. It has also found that the Respondent is not liable to compensate the Applicant for any permanent impairment suffered by her.

Decision

79. The decisions under review are affirmed and the Applicant qualifies for no costs in respect of these applications.

I certify that the 79 preceding paragraphs are a true copy of the reasons for the decision herein of M J Sassella, Senior Member

Signed: .....................................................................................

Associate

Date/s of Hearing 24 January 2001

Date of Decision

Counsel for the Applicant Mr Robson

Solicitor for the Applicant Graham Jones, Graham Jones Lawyers

Counsel for the Respondent Mr Kelly

Solicitor for the Respondent Natalie Fisher, Henry Davis York