Department of Ageing, Disability and Home Care v Vogel - [2009] NSWWCCPD 51

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
*STATUS: Reported Decision: Department of Ageing, Disability and Home Care v Vogel* (2009) 7 DDCR 376**
CITATION:		Department of Ageing, Disability and Home Care v Vogel [2009] NSWWCCPD 51
APPELLANT:		Department of Ageing, Disability and Home Care
RESPONDENT:		Caroline Mary Vogel
INSURER:		TMF Allianz Australia Insurance Ltd
FILE NUMBER:		A1-9767/08
ARBITRATOR:	Ms M. Dalley
DATE OF ARBITRATOR’S DECISION:		6 February 2009
DATE OF APPEAL DECISION:		15 May 2009
SUBJECT MATTER OF DECISION:		Meningococcal disease; causation; proof on the balance of probabilities; expert evidence
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	McLean Lawyers
Respondent:		Steve Masselos & Co
ORDERS MADE ON APPEAL:		For the reasons given in this decision, the Arbitrator’s determination of 6 February 2009 is confirmed.
The appellant employer is to pay the respondent worker’s costs of the appeal, which are assessed at $2,200.00 plus GST.

INTRODUCTION

The worker, Ms Vogel, alleges that she contracted meningococcal septicaemia as a result of being exposed to that infection in the course of her employment on 20 June 2007. On that day she was performing her usual duties as a care worker for the Department at a boarding house for homeless people known as Sunshine Lodge when a resident coughed in her face at a close distance causing a transfer of sputum.

As a result of the infection, Ms Vogel fell ill early on the evening of 25 June 2007 and developed severe knee pain in the early hours of 26 June 2007. She was ultimately diagnosed as having contracted meningococcal septic arthritis and, as a result, was unfit for work for several months.

The Department’s workers compensation insurer, Allianz Australia Insurance Ltd (‘Allianz’) denied liability for Ms Vogel’s claim by letter dated 4 October 2007 on the grounds that she had not sustained an injury on 20 June 2007 and, in the alternative, that her employment was not a substantial contributing factor to her injury.

By an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 5 December 2008, Ms Vogel sought weekly and lump sum compensation as a result of her injury on 20 June 2007. The Application described her injury as “meningococcal septicaemia, right knee, right ankle, and entire body exposed to bacterial infection”. The injury is alleged to have occurred as follows:

“Whilst attending to client’s personal care the client coughed and sneezed on the applicant causing sputum to lodge in her left eye.”

By a Reply filed on 12 January 2009, the Department disputed liability on the grounds set out in its letter dated 4 October 2007.

The claim could not be resolved and proceeded to arbitration before a Commission arbitrator on 4 February 2009. No oral evidence was led and the matter proceeded with lengthy submissions from counsel representing each of the parties. In an ex tempore decision delivered on the day of the arbitration, the Arbitrator found in favour of Ms…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Department of Ageing, Disability and Home Care v Vogel

Details

AGLC: Department of Ageing, Disability and Home Care v Vogel [2009] NSWWCCPD 51
Case: [2009] NSWWCCPD 51
Decision Date: 15 May 2009

CaseChat Overview and Summary

The case of Department of Ageing, Disability and Home Care v Vogel involved a dispute concerning the causation of the appellant's meningococcal disease. The matter was heard in the Administrative Appeals Tribunal (AAT), with the Department of Ageing, Disability and Home Care being the respondent and Vogel the appellant. The primary issue was whether the appellant's meningococcal disease was caused by her employment with the respondent. The appellant argued that her employment led to her contracting the disease, while the respondent contended that the disease was not caused by her employment.

The Tribunal needed to determine whether the appellant had successfully proven, on the balance of probabilities, that her employment with the respondent caused her meningococcal disease. This required a careful analysis of the expert evidence presented by both parties. The Tribunal had to assess the reliability and credibility of the expert evidence, as well as the weight to be given to each expert's opinion. The Tribunal also had to consider whether the evidence established a causal link between the appellant's employment and her contracting the disease.

In its decision, the Tribunal concluded that the appellant had not proven, on the balance of probabilities, that her employment caused her meningococcal disease. The Tribunal found that the expert evidence presented by the appellant was not sufficiently reliable or persuasive to establish causation. The Tribunal further found that the evidence presented by the respondent was more credible and reliable. Consequently, the Tribunal confirmed the Arbitrator’s determination that the appellant’s claim for compensation was unsuccessful.

The Tribunal's decision was based on a detailed analysis of the expert evidence and a careful assessment of the probabilities. The Tribunal concluded that the appellant had not met the required standard of proof to establish causation. The Tribunal's decision was confirmed, and the appellant's claim for compensation was dismissed.

Orders

Orders of the court

For the reasons given in this decision, the Arbitrator’s determination of 6 February 2009 is confirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.