Department of Ageing, Disability and Home Care v Vogel
[2009] NSWWCCPD 51
•15 May 2009
| 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 Vogel. The terms of the Arbitrator’s orders have been set out in a Certificate of Determination issued by the Commission on 6 February 2009 in the following terms:
“The determination of the Commission in this matter is as follows:
1.That the Respondent pay weekly compensation to the Applicant at the following rates:
a. $354 per week from the 26/06/07 to the 26/09/07, pursuant to section 36 of the Workers Compensation Act 1987 (the 1987 Act)
b. $354 per week from the 27/09/07 to the 3/01/08, pursuant to section 38 of the 1987 Act,
c. $170.94 per week from the 4/01/08 to the 17/01/08, pursuant to section 40 of the 1987 Act,
d. $ 354 Per week from the 18/01/08 to the 31/01/08, pursuant to section 40 of the 1987 Act,
e. $73.30 from 1/02/08 to the 14/02/08, pursuant to section 40 of the 1987 Act and
f. $173.06 per week from the 15/02/08 to the 28/02/08, pursuant to section 40 of the 1987 Act.
2.That the Respondent pay the Applicant’s section 60 of the 1987Act expenses upon production of invoices, receipts or HIC Notice of Charge.
3.That the Applicant’s claim pursuant to section 66 of the 1987 Act be referred by the Registrar to an Approved Medical Specialist for assessment of the percentage of whole person impairment to her right lower extremity arising from the injury (meningococcal infection) on the 20/06/07. All documents attached to the Application and the Reply are admitted to evidence, to be forwarded to the AMS.
4.That the Respondent pay the Applicant’s costs as agreed or assessed . On the application of the Applicant and the Respondent I certify that this matter involved complex questions of law and the maximum payable in respect of the Applicant’s and the Respondent’s costs under Table 1 is to be increased by 15%.”
By an appeal filed on 5 March 2009, the Department seeks leave to appeal the Arbitrator’s determination.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
It is not disputed that the monetary thresholds in section 352(2) of the 1998 Act are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
THE EVIDENCE
Ms Vogel’s evidence is set out in her statement of 17 November 2008, and may be summarised as follows:
(a)she commenced work with the Department as a care worker on 23 May 2005. At that time she was in “complete health” and was taking no medication. She lived on a horse-stud some kilometres from Mittagong;
(b)on Wednesday, 20 June 2007, she provided personal care to male residents at Sunshine Lodge in the Lodge’s basement bathroom. The personal care provided included showering, shaving, hair grooming, dental care and some bowel care;
(c)she described the basement bathroom as small, overcrowded and poorly ventilated;
(d)one of the residents, Mr Reid, coughed directly into her face and she was aware of sputum entering her left eye. She described Mr Reid as a very heavy smoker who was known to scavenge cigarette butts from public bins;
(e)she described the residents as homeless people who were being rehabilitated from alcohol and drug abuse and who had mental conditions. Whilst she was provided with gloves, foot cover and plastic aprons, she was not provided with a face mask on a regular basis unless a client had an open wound that required treatment;
(f)whilst residents were not permitted to smoke in the Lodge, many of them smoked and it was difficult to avoid being exposed to smokers. A great percentage of the residents, including Mr Reid, had a “smoker’s cough”;
(g)Ms Vogel did not work on 21 June, but did work on Friday, 22 June 2007 in the ladies bathroom, again providing personal care. None of the residents was unwell, apart from coughing as a result of heavy smoking;
(h)the occupational health and safety standards at the Lodge were substandard and hand washing facilities were not of occupational health and safety standards. The building was old, overcrowded and had poor facilities;
(i)over the weekend of 23 and 24 June 2007, Ms Vogel was at home with her husband. Also at home were her adult son and two friends, Brenda Chat and Kerri Horne. Ms Vogel does not recall either of her friends coughing or sneezing on her during their stay at her home;
(j)Ms Vogel worked between 9.30am and 11.30am on Monday, 25 June 2007. At 5pm on that day she became feverish and began vomiting. At 2am on the morning of 26 June 2007, she awoke with excruciating pain in her right knee. She attended at the emergency department of Bowral District Hospital where she was given pain relieving medication and sent home;
(k)on 28 June 2007, Ms Vogel attended on her usual general practitioner, Dr Hanbury, who drained fluid from her right knee and prescribed indocid and pain relieving medication. Ms Vogel again saw Dr Hanbury on Saturday, 30 June 2007 because of severe pain in her right knee;
(l)on Monday, 2 July 2007, Ms Vogel attended on Dr Rewais, a general practitioner at the same practice as Dr Hanbury, and was told that her tests confirmed the diagnosis of meningococcal septicaemia. An ultrasound of her knee at about that time revealed a ruptured baker’s cyst in her right knee;
(m)Ms Vogel was admitted to Bowral Hospital on 2 July 2007 where she was diagnosed as having septic arthritis of the right knee and ankle, the specific diagnosis being “meisseria meningitidis”. She underwent an arthroscopic wash out of the right knee and an open arthrotomy of the right ankle and was discharged on 7 July 2007;
(n)on Monday, 9 July 2007 Ms Vogel spoke with her supervisor, Ms Langford. She describes her conversation with Ms Langford as follows:
“I discussed with Sue as with my doctor the concerns re: my workplace (Sunshine Lodge) and that on the balance of probability the client/client’s coughing and Mr Frank Reid, in particular when he coughed and his expectorant went into my eye. We also discussed the smoking issue and taking into account the incubation period for Meningococcal and the fact that I went from [my] work place to home in those given days, it appeared that Sunshine Lodge being my predominant work place was where I was most likely to have been infected.”
(o)on 10 July 2007, Dr Hanbury issued two WorkCover medical certificates declaring Ms Vogel unfit for work;
(p)Ms Vogel completed a “Workers’ Compensation Claim form” (‘the claim form’) on 29 July 2007 giving her injury details as follows:
“Attending to client’s personal care needs, coughed & sneezed on, sputum in left eye and exposed to passive smoking”
(q)on 4 January 2008, Ms Vogel commenced employment with a different employer as a social educator.
Ms Vogel also relies on statements from two co-workers, Anya Carolan and Claire Stopher. Ms Carolan states that she was a care worker with the Department between November 2003 and January 2008 and that she worked with Ms Vogel at Sunshine Lodge. Her duties involved close physical contact with the residents at the Lodge and included shaving, showering, dressing, cleaning teeth, combing hair, toileting, attending to wounds and dealing with clients who were incontinent. She said that 92% of the residents at the Lodge had a mental illness and some also had an intellectual and/or physical disability. Many of the clients had very poor personal hygiene habits and most smoked. Clients regularly coughed or sneezed openly without covering their mouths. Bathrooms at the Lodge were overcrowded and quite unpleasant. A number of clients riffled through rubbish bins and picked up cigarette butts from off the street.
Ms Stopher worked for the Department from 2001 until 2008. A lot of her work was at Sunshine Lodge, where she worked as a carer. The residents at the Lodge had various disabilities. The standard of hygiene at the Lodge was very poor.
Medical Evidence
The first medical evidence in the case is in the form of two WorkCover medical certificates from Dr Hanbury dated 10 July 2007, one of which was unsigned. Both refer to the injury occurring by Ms Vogel being “coughed on by residents at Sunshine Lodge”. In the signed certificate the doctor has ticked the box “yes” to the question of whether the worker’s employment was a substantial contributing factor to the injury.
The next certificate from Dr Hanbury is dated 31 July 2007. In this certificate the doctor described the injury as having occurred as follows:
“Coughed on by residents at Sunshine Lodge; Caroline lives on an isolated property & only works one to one in the community; I consider it most likely that she got the meningococcal infection from Sunshine Lodge where she spends the bulk of her working day where OH&S are substandard”
The doctor again “checked” the box indicating that employment was, in his opinion, a substantial contributing factor to the injury. Dr Hanbury repeated the above description about how the injury occurred in his nine subsequent certificates.
Dr Hanbury prepared a medicolegal report on 11 February 2008. He stated that he saw Ms Vogel on 28 June 2007 when he drained fluid from her right knee, which was subsequently tested and revealed neisseria meningitidis. He added:
“This would be consistent with working for home care in Sunshine Lodge, Mittagong where Caroline is most likely to have contacted the neisseria meningitidis, through the upper respiratory tract.”
He added that he believed Ms Vogel’s work was a substantial contributing factor to the development of her disease.
Dr Grant, consultant physician, referred Ms Vogel to Professor Bradbury, staff specialist of microbiology and infectious diseases at Concord Repatriation General Hospital, on 4 February 2008. The referral letter confirmed Ms Vogel’s history that she had “on occasions been coughed on”, but none of the residents at the boarding house had been confirmed carriers of meningococcal infection. It added that Ms Vogel lived in an isolated part of the district on Wombeyan Caves Road and that her contacts were restricted to work and shopping. Dr Grant discussed the difficulties with making claims with Ms Vogel but added that there was:
“certainly a chance that she may well have contacted [sic, contracted] the infection at her place of work. Given the absence of any confirmatory cases, it becomes a matter of speculation. Nevertheless she would be grateful for an opinion and I have indicated that microbiologists will need to provide any supportive information one way or another.”
Ms Vogel saw Professor Bradbury on 1 April 2008. He took the following history in his report to Dr Grant of the same date:
“Ms Vogel she [sic] was working at the time in a boarding house situation with numerous residents who were of various ages. Respiratory infections were common in the unit and she recalls that on many occasions she was coughed on but particularly on 20 June when she specifically remembers a specific incident. She lives in a fairly isolated situation on the Wombeyan Caves Road and her only other exposure to respiratory infection at the time would have been with shopping expeditions but she cannot remember any coughing around her or any direct contact at the time.”
The Professor stated that it is well known that meningococcal infection can be spread as a nasopharyngitis between inmates in boarding situations and passage of the organism from resident to resident in such a setting can increase its virulence “to the point where it is likely to cause infection in recipitants of the organism”. He concluded:
“There is no doubt that the organism is spread in this way by transmission of small droplets. On the balance of probability I think it very likely that she may have caught the meningococcus in her work situation. Her contact with other humans is relatively limited so that I think that the case is strong quite strong for this being acquired in her particular work situation at the time.”
Ms Vogel was examined by Dr Patrick, surgeon, at the request of her solicitors on 30 September 2008. In his report of 3 October 2008 he recorded that Sunshine Lodge was an overcrowded residence for homeless people, with up to five residents sharing a room. The bathrooms were particularly poorly ventilated. The basement bathroom was very cold and small, with two showers that worked and two toilets in the same area as the showers. Residents were allowed to smoke in doors and many of them were heavy smokers.
In respect of the events on 20 June 2007, Dr Patrick recorded:
“There was an incident on the Wednesday 20 June 2007 when she was working with a resident – a Mr R, who was not well. He inadvertently coughed directly from a short distance into her face, presumably showering her with droplets, and with some sputum going into her left eye. This was not necessarily anything very unusual. She finished what she was doing, and then washed her face.”
He also recorded that a friend of Ms Vogel’s, Kerrie (Ms Horne), who had a chronic cough, stayed with her at her residence on 23 and 24 June 2007 along with another friend, Brenda (Ms Chat), who was a heavy smoker.
Under “Opinion”, Dr Patrick concluded:
“She has, I believe – on balance of probability – acquired an occupational infection with meningococcus probably during the course of her work on/or about 20 June 2007, as described.
This would be very consistent with the subsequent history and sequence of events as given.”
After referring to the reports of Dr Anthony Millar, consultant physician, relied on by the Department (see [31] below), and Professor Bradbury’s report, Dr Patrick continued:
“In general, I agree with Dr Bradbury’s opinion and, I do believe that – on balance of probability – it is very likely that Caroline Vogel has acquired the meningococcal infection during the course of her work at Sunshine Lodge.
I believe this is a very much more likely scenario than her acquiring it – for example – from one of her visitors over the ensuing weekend.
Transmission of meningococcal infection, for example, is not unknown in close environments such as cruise ships.”
In a supplementary report, also dated 3 October 2008, Dr Patrick added that he believed Ms Vogel’s employment had been a substantial contributing factor to her injuries to her right knee and ankle.
Dr Anthony Millar’s report is dated 24 August 2007. After recording that Ms Vogel became unwell on 25 June 2007, Dr Millar incorrectly stated that “the day before the symptoms occurred she had been coughed over by a patient”.
Dr Millar was asked the following question:
“Do you feel that the condition from which this claimant is suffering is a work-related condition? Do you feel that the source of infection for meningococcal could be anywhere or the alleged coughed [sic] resident?”
The doctor replied:
“This is a difficult question to answer.
Ms Vogel feels that the person that coughed over her was probably the cause of it but there was nothing to suggest that that patient was suffering from meningococcal disease nor was a carrier of the organism.
It would be worth enquiring as to whether anybody else in the area of the said patient had any evidence of meningococcal disease at the time that this occurred. She could easy have picked this up from somebody in their home or somebody out in the street. There is no positive evidence to support either of these contentions.”
Evidence From the Sydney South West Area Health Service – Public Health Unit
The Public Health Unit from the Sydney South West Area Health Service (‘the Health Service’) conducted an investigation into the matter and produced its records to the Commission in answer to a Direction for Production served by the Department’s solicitor. The Health Service contacted the occupants of Ms Vogel’s house to ensure that they received appropriate antibiotics. It also contacted Ms Langford to obtain details of Ms Vogel’s job and information as to “possible contacts”. Ms Langford gave a representative from the Health Service a general description of Ms Vogel’s duties and the nature of her contact with clients. That contact was described as follows:
“Work at Sunshine Lodge – spends approximately 15 minutes with clients, minimal personal care assisting with showering, shaving & dressing clients.”
The contact with clients was described in the Health Service’s notes as “deemed as social contact rather than household contact due to the minimal amount of time spent with them”.
In a document headed “Case Report Form – Meningococcal Disease” (‘the Case Report Form’) (an 18 page questionnaire completed by Ms Vogel) it is recorded under “Other Risk Factors for Meningococcal”:
“A friend arrived from Korea & spent weekend with case [Ms Vogel] prior to developing illness.”
The Case Report Form included the following additional information:
(a)Ms Vogel had been in a dusty environment recently, namely, a dusty cottage (page 6);
(b)a friend (Kerrie (Ms Horne)) had a chronic cough (page 6);
(c)in respect of the two week period prior to Ms Vogel’s admission to hospital, she did not sleep in the same room as anyone else, did not share a drink from a glass, cup, bottle or can that was being used by someone else, did not share an item of food that was partially eaten by someone else, did not share a toothbrush with anybody else, did not have intimate contact (kissing) with anybody else, did not share any cigarettes with anybody else, or use a dummy (pages 7 and 8);
(d)she was employed as a personal carer providing personal care, showering, and domestic duties;
(e)in the two week period prior to her admission to hospital she had not attended any clubs, pubs, restaurants or bars (page 12), and
(f)in the same period she had contact with “4-5 people/day” who were coughing. To her knowledge she did not know anyone who had been sick with meningococcal disease (page 13).
Progress notes from the Health Service dated 4 July 2007 recorded that Kerrie (Ms Horne) had a cough for twelve years.
The Acting Director of the Health Service, Dr Mannes, wrote to the Department on 4 July 2007 confirming that one of the Department’s work colleagues had been diagnosed with meningococcal disease and attaching an information sheet (‘Communicable Diseases Factsheet from NSW Health (‘the NSW Health factsheet’)) about the illness. The letter added:
“This disease is spread through exposure to secretions from the nose and throat, requiring living in the same household, very close, prolonged or intimate contact. It is unusual for this infection to spread to other people with normal day-to-day contact and we believe the likelihood of spread to other workers is very unlikely. We have, with the assistance of your colleague, identified and treated all of these people.
Meningococcal infection is caused by a bacterium that is carried, usually harmlessly, in the nose and throat by up to 10% of people. However, occasionally carriers may pass it on to others who have been in very close contact with them. Only a very small number of people in contact with those that carry the infection develop meningococcal disease. If a carrier passes the bacterium to another person it may take up to ten days for the infection to develop, which has now passed.”
In an email from Hanisah Corner, Public Health Nurse, Infectious Diseases Surveillance Public Health Unit, at the Heath Service, dated 4 July 2007, it was stated that it was deemed unnecessary to provide contact letters to clients because of the minimal contact Ms Vogel had with clients, which was “as social contact rather than household contact”.
On 10 July 2007, Ms Helen Fuller, Acting Service Centre Manager for the Department, wrote to Patrick Maywood, Manager Communicable Diseases at the Public Health Unit, noting Ms Vogel’s claim that she had been coughed on by residents at Sunshine Lodge and requesting a risk assessment. Mr Maywood replied by email dated 11 July 2007 as follows:
“Nasopharyngeal carriage of the meningococci is common; and about 10% of the population carry meningococci at any given time without causing illness. The Public Health Unit investigates all cases of illness but the overwhelming number of cases are sporadic and the source remains undetermined.
Public Health Unit investigations of your employee’s meningococcal infection found no epidemiological or microbiological evidence suggestive of workplace acquisition. There has been no other linked cases of infection and we are now past the time that other cases would be anticipated to occur if linked to this case.”
The NSW Health factsheet gave a general description of the disease and added that “between 5 and 25 percent of people carrying meningococcal bacteria at the back of the nose and throat without showing any illness or symptoms”. On the question of how the disease is spread, the factsheet states:
“Meningococcal bacteria are not easily spread from person to person and bacteria do not survive well outside the human body. The bacteria are passed between people in the secretions from the back of the nose and throat. This generally requires close and prolonged contact with a person carrying the bacteria who is usually completely well. An example of ‘close and prolonged contact’ is living in the same household or intimate (deep) kissing. Meningococcal bacteria are not easy spread by sharing drinks, food or cigarettes. People with meningococcal disease do not easy spread the infection to others.”
The factsheet added that people at a higher risk of contracting the disease include, among others, people who are exposed to cigarette smoke and people who are exposed to smokers. People who have had only minor exposure to someone with meningococcal disease have a very low risk of developing the disease. Healthcare workers are not at increased risk unless they have been directly exposed to a case’s nasopharyngeal secretions (for example if they have performed mouth-to-mouth resuscitation or incubated the case without using a facemask).
In an unsigned and undated document prepared by Rosalee Angelostante headed “Home Care Service of NSW South Western Sydney Incident Investigation” (‘the Home Care Investigation’) it was noted that one of Sunshine Lodge’s clients, Mr Reid, coughed on Ms Vogel on 20 June 2007. Ms Vogel felt that he was a risk factor and that he could have infected her.
THE ARBITRATOR’S DECISION
In an ex tempore decision delivered on 4 February 2009, the Arbitrator made the following findings and observations:
(a)based on Seltsam v McGuiness (2000) 49 NSWLR 262 (‘McGuiness’), she had to look at whether persons in general can be affected in the manner that it is alleged that the applicant was affected and, second, she had to look at whether in this particular case Ms Vogel was affected in the way she alleged (T45.18);
(b)she was satisfied as to the diagnosis of Ms Vogel’s condition, namely, meningococcal disease;
(c)the medical evidence supports that the infection could have taken place in the way Ms Vogel alleges (T49.15) and the rest of the evidence combined with the medical evidence combined to make a commonsense conclusion that it was more likely than not that the most probable cause of the infection was at work (T49.18), and
(d)the most likely cause of the infection was Ms Vogel’s exposure to droplets of infected body fluid at work and that work was a substantial contributing factor (T49.45).
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)finding that Ms Vogel suffered an injury due to exposure to meningococcal infection on 20 June 2007, that finding being against the weight of evidence;
(b)basing her findings on incorrect assumptions with respect to the facts and giving undue weight to the opinions of Ms Vogel’s medical experts, particularly Professor Bradbury;
(c)giving excessive weight to the report of Professor Bradbury, and
(d)failing to give adequate reasons to support her decision.
SUBMISSIONS
It is submitted on behalf of the Department that:
(a)the Arbitrator erred in relying on McGuiness;
(b)Professor Bradbury’s report was based on mere conjecture and did not meet the test for an expert medical opinion set out in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 507 (‘Makita’), Hevy Lift (PMG) Ltd v Etherington [2005] NSWCA 42; (2005) 2 DDCR 271 (‘Hevy Lift’) and South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; (2007) 4 DDCR 421 (‘Edmonds’);
(c)the Arbitrator failed to have regard to the decision of Spigelman CJ in McGuiness where the Chief Judge said at [183] “epidemiological studies and expert epidemiological opinion evidence on general causation go no further than establishing a possibility”;
(d)the evidence does not support the conclusion that a resident at Sunshine Lodge had meningococcal infections and was able to spread the disease to Ms Vogel;
(e)the Arbitrator failed to have regard to Dr Grant’s report of 4 February 2008 and the email from Patrick Maywood dated 11 July 2007;
(f)reliance is placed on Carr v Baker (1936) 36 SR(NSW) 301 at 306 (‘Carr’) where Sir Frederick Jordan CJ said that where the evidence establishes that a particular situation is possible then, its existence does not go beyond mere conjecture;
(g)reliance is also placed on Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 (‘Caswell’) and Sydney County Council v Furner (1991) 4 NSWCCR 210 (‘Furner’);
(h)in the absence of confirmatory cases or other proved facts, it becomes a matter of speculation that Ms Vogel’s workplace was the source of her infection. Such speculation is not sufficient to establish the causal connection on the balance of probabilities and it was simply a guess on the part of Professor Bradbury as to the origin of the disease. If his opinion is correct then it follows that there would likely have been other cases of infection, but this was found not to be the case by the Heath Service’s Public Health Unit investigation;
(i)circumstances in Ms Vogel’s own home increased the risk and could also have been the cause of the infection. The Commission is not authorised to choose between guesses (Jones v Dunkel (1959) 101 CLR 289 at [35] (‘Jones v Dunkel’));
(j)reliance is placed on The Office of the Public Guardian v Manning [2008] NSWWCCPD 94 (‘Manning’);
(k)the Arbitrator misapplied section 9A of the 1987 Act. The evidence does not establish that Ms Vogel had close contact with clients and reference is made to Hanisah Corner’s email dated 4 July 2007. The tasks performed by Ms Vogel would be extremely unlikely to be of the nature where the disease could be contracted and, in finding otherwise, the Arbitrator erred;
(l)the Arbitrator failed to consider and give appropriate weight to the evidence of Ms Vogel’s close contact situations outside her workplace which could have been the source of the infection. Ms Vogel resided with smokers, in a dusty environment and had a visitor with a chronic cough. Professor Bradbury had not been given a true history of Ms Vogel’s contacts and exposure to other environmental considerations and factors. Professor Bradbury was wrong to say that Ms Vogel maintained a fairly isolated existence during the incubation period of the disease;
(m)the Victorian Government Health Information Sheet (‘the Victorian Health factsheet’) states that people who contract meningococcal disease are more than three times as likely to be in close contact with smokers. Ms Vogel’s husband, son and one of her friends smoked and another had a chronic cough;
(n)Ms Vogel did not maintain a fairly isolated existence during the incubation period, but was exposed to her husband, son and two friends;
(o)if the disease had increased its virulence to the point where it was likely to cause infection, as asserted by Professor Bradbury, then one would have expected linked causes. As none have been identified at the Department’s premises, it is safe to conclude that those premises were not the source of the infection and the disease had not reached a virulence where it was likely to cause infection. In circumstances where Professor Bradbury did not have a full history of other potential sources for exposure and no linked cases suggestive of the disease reaching the virulent stage, the Arbitrator placed excessive weight on the Professor’s report and opinion;
(p)Professor Bradbury’s report should have been rejected on the basis that the assumed facts in it were inaccurate and incomplete and his opinion was simply not proved;
(q)the close contact required for the transmission of the disease is household or intimate contact, not social contact. Ms Vogel’s contact with clients in the course of her employment was minimal social contact rather than household contact;
(r)Ms Vogel had close and prolonged contact in her own home and to environmental facts that increased the risk of contracting the disease. Those factors included the presence of smokers, a dusty environment, and contact with a friend who had a chronic cough;
(s)Ms Vogel is not a witness of truth and the reference to sputum going in her eye is a “recent addition” that only arose after doing her own research. The first time Ms Vogel alleged that sputum went into her eye was in the claim form dated 24 July 2007, which also referred to the Health Department’s guidelines on meningococcal;
(t)the Arbitrator gave excessive weight to Ms Vogel’s evidence in circumstances where Ms Vogel gave inaccurate and incomplete evidence;
(u)the Arbitrator failed to have regard to the independent investigation by the Health Service and the report of Dr Grant, and
(v)the Arbitrator failed to give sufficient reasons supporting her decision.
It is submitted on behalf of Ms Vogel that:
(a)the expert evidence clearly indicates that the manner in which it is alleged Ms Vogel was infected is medically possible. The next question is whether, as a matter of fact, Ms Vogel had been so infected. On this issue, the medical evidence was either neutral (Drs Millar and Grant), or supportive (Dr Patrick, Professor Bradbury and, inferentially, Dr Hanbury);
(b)the evidence supports the causal findings of an occupational infection and the Arbitrator’s finding was open on the evidence;
(c)the investigation conducted by the Health Service went to the issue of whether Ms Vogel had spread the disease rather than determining from whom she had contracted the disease. Based on the NSW Health factsheet, the Arbitrator was entitled to infer that between 5% and 25% of the residents at the Lodge were carriers of the bacteria though they did not exhibit signs of infection. As such, the inference was open that Mr Reid was a carrier of the disease;
(d)whilst it is possible that Ms Vogel could have contracted the infection at her home, Mr Reid was the most likely source of the infection. There is no evidence of a possible transmission of sputum from Ms Horne, or any other person at Ms Vogel’s home;
(e)the Department took no objection to Professor Bradbury’s report at the arbitration and the submissions regarding the admissibility of that report are otiose;
(f)Professor Bradbury’s conclusion is not a bare ipse dixit. The report detailed the factual assumptions upon which the conclusions were based and the Professor’s opinion is explicable on the face of the report in that the reader can follow the doctor’s rationale in coming to his conclusion, namely, first, on 20 June 2007 a resident coughed on Ms Vogel, second, on 25 June 2007 Ms Vogel fell ill, and, last, Ms Vogel lived in a fairly isolated situation and her contact with other humans was quite limited so as to exclude that as a likely source of the infection. No contact by Ms Vogel with people at her home involved the transmission of phlegm/sputum as did the contact with Mr Reid on 20 June 2007;
(g)the submission that the “dusty environment” referred to in the Case Report Form as Ms Vogel’s home is not supported by the evidence;
(h)the Department’s submissions do not neutralise the views of Drs Patrick and Hanbury. Causation as a matter of fact was a matter for the Arbitrator to decide on the available evidence on the basis of commonsense (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (‘Kooragang’)). Therefore, once the alleged mechanism of injury was established as a possibility, it was open to the Arbitrator to make the causal finding in the absence of medical evidence on point (Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 per Mahoney JA at 199E-G;
(i)Manning was decided on its own facts and is not binding authority in the present matter. In Manning, there was no evidence from the deceased worker of the kind given by Ms Vogel regarding her contact with Mr Reid. In addition, in that case the employer called medical evidence expressly negativing any causal link between employment and the disease, as opposed to the present case where Dr Millar’s evidence is neutral and Ms Vogel’s case is positively supported by Drs Patrick and Hanbury and Professor Bradbury;
(j)the authorities of Carr, Caswell and McGuiness do not address the issue in dispute in the present matter, namely, whether a causal chain can be proved inferentially, by relying, in part, on circumstantial evidence. Reliance is placed on the judgment of Spigelman CJ in McGuiness at [89]-[91];
(k)Dr Grant did not expressly negative Ms Vogel’s case theory as regards causation. His opinion was expressed in a report addressed to Professor Bradbury and, as such, presumably encompassed medical as opposed to legal concepts as to causation. The distinction between medical and legal causation is well recognised and reference is made to the decision of Spigelman CJ in McGuiness at [142] and [143]. Manning confirms a contraction of an infectious disease constitutes an “injury” within the meaning of section 4 of the 1987 Act (see Favelle Mort Ltd v Murray (1976) 133 CLR 580 (‘Favelle Mort’). On this basis, Ms Vogel’s injury occurred when the meningococcal bacteria entered her body as a result of Mr Reid coughing on her on 20 June 2007;
(l)Ms Corner is a registered nurse employed by the Heath Service, not the Department. She has no independent knowledge of Ms Vogel’s working conditions. The evidence from Ms Vogel, as corroborated by Mr Carolan and Ms Stopher, is to be preferred;
(m)Ms Vogel’s home is geographically isolated and that is the sense in which Professor Bradbury used that term;
(n)the submission that Ms Vogel should not be accepted a witness of truth is not one that the Commission would embrace. Ms Vogel complained on 9 July 2008 to Ms Langford, her supervisor, of being coughed on by residents at the Lodge and provided a similar history to Dr Hanbury on 10 July 2008. The report from Ms Angelostante also referred to Mr Reid. The suggestion that Ms Vogel lied was never put to her as the Department’s Counsel never sought leave to cross-examine Ms Vogel. To now raise the worker’s credit as an issue is to deny the worker procedural fairness within the rule in Browne v Dunn (1894) 6 R 67 and to deny the Arbitrator the opportunity of observing the worker’s demeanour while giving evidence, and
(o)the Arbitrator only had to articulate the reasons for deciding the case how she did and she has met that obligation (Soulemezis v Dudley Holdings (Aust) Ltd (1987) 10 NSWLR 247 (‘Soulemezis’)).
DISCUSSION AND FINDINGS
Ms Vogel’s Evidence
The evidence that Mr Reid coughed on Ms Vogel on 20 June 2007 is compelling. She complained of that event to her supervisor, Ms Langford, on 9 July 2007, just two days after her discharge from hospital. Dr Hanbury recorded a similar history in his certificates of 10 July 2007. She gave a similar history to Ms Angelostante in the course of her investigation, which seems to have been conducted in mid-July 2007.
Whether the first mention of sputum entering Ms Vogel’s eye was in the claim form on 29 July 2007, as the Department submits, is open to doubt. At paragraph 54 of her statement, Ms Vogel referred to discussions she had with Ms Langford on 9 July 2007 about the workplace and, in particular, when Mr Reid “coughed and his expectorant went into my eye” (see [14(n)] above). There is nothing from Ms Langford to rebut this evidence.
Even if Ms Vogel did not mention the sputum entering her eye until she completed her claim from on 29 July 2007, I do not accept that anything of significance turns on that delay and I do not accept that it is a ‘recent invention’, as the Department claims. Ms Vogel consistently reported the coughing incident to all the medical experts in the case. That being so, I do not accept the Department’s attack on her credit and I am comfortably satisfied that the coughing incident occurred at work on 20 June 2007, in the manner that she asserts in her claim form and her statement, and that sputum entered her eye as a result of it. I therefore do not accept the Department’s submission that the Arbitrator placed excessive weight on Ms Vogel’s evidence.
The Health Service Investigation
I have had careful regard to the investigation by the Health Service. The focus of the investigation was to identify the persons with whom Ms Vogel came into contact, while she was infectious, with a view to providing those people with antibiotics, not to determine how or from whom Ms Vogel contracted the disease. This is confirmed in Ms Corner’s email to Ms Fuller dated 4 July 2007 and Dr Mannes’ email of 3 July 2007.
Mr Maywood’s email of 11 July 2007 confirms Professor Bradbury’s evidence that “nasopharyngeal carriage of the disease is common”. His comment that the Health Service’s investigations of Ms Vogel’s infection “found no epidemiological or microbiological evidence suggestive of workplace acquisition” is of little probative value without detailed evidence of the nature of the investigation undertaken. It is not known if anybody from the Health Service inspected the relevant premises or tested Mr Reid, though that seems unlikely given that Mr Maywood stated that the Health Service did not provide “workplace assessments”.
The Department’s reliance on Ms Corner’s evidence in her email of 4 July 2007 is misplaced. It is known that Ms Corner spoke to Ms Langford about the general nature of Ms Vogel’s duties. The general description she received about Ms Vogel’s usual duties may have been accurate, but it misses the point. Ms Vogel does not allege that she contracted the disease from her general duties. Her case is that she contracted it from a client who coughed in her face causing a transmission of sputum. Ms Corner’s suggestion that “due to minimal contact that the case [Ms Vogel] has with clients, it was deemed unnecessary to provide contact letters to clients” as it involved “social contact” rather than household contact, related to the risk that Ms Vogel posed to clients, not to the risk Ms Vogel faced if a client coughed on her in the circumstances that occurred on 20 June 2007. Ms Corner did not consider the situation where a client coughed on Ms Vogel in the manner that occurred at work on 20 June 2007.
Ms Angelostante conducted an investigation and, whilst she did have a history that Mr Reid coughed on Ms Vogel and that Ms Vogel felt that he was a risk factor, it seems that nothing further was done about that risk. Ms Angelostante expressed no conclusion as to the likely source of the infection.
The Health Service did not conclude that anyone at Ms Vogel house was a possible source of the infection. In respect of Ms Horne, the investigation revealed that she had a chronic cough for 12 years, but there is no evidence that she had been linked to any previous meningococcal infections.
The Health Service’s investigation does not assist the Department.
Professor Bradbury’s Evidence
I do not accept that Professor Bradbury’s evidence is based on mere conjecture and is therefore inadmissible. In any event, Professor Bradbury’s evidence was not objected to at the arbitration and it is in evidence. I assume that the Department’s submissions go to the question of the weight to be attached to his opinion.
While the Professor’s history is less than ideal, it contains the main thrust of Ms Vogel’s case, namely, that she was coughed on at work on 20 June 2007 and became ill as a result on 25 June 2007. I do not believe it is critical that he did not record her domestic situation. That situation did not involve her being coughed on, but merely put her in the same house as smokers and a person with a chronic cough. Other than staying in Ms Vogel’s house on the weekend of 23 and 24 June 2007, there is no evidence that Ms Horne coughed on Ms Vogel in the way Mr Reid did, or at all, or that Ms Vogel had close or intimate contact with Ms Horne.
I find, as Professor Bradbury recorded, that Ms Vogel’s contact with people outside work in the days leading up to 25 June 2007 was “relatively limited” because she lived in a fairly isolated situation on the Wombeyan Caves Road and had not attended any social activities outside work and, perhaps, shopping. In these circumstances, Professor Bradbury’s history provided a “fair climate” (Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-510) for the acceptance of his conclusion that her case is “quite strong” for her infection having been acquired in her work situation.
As required by Makita, Professor Bradbury explained the basis for his conclusion, namely, that it is well known that meningococcal infection can be spread as a nasopharyngitis between inmates in boarding situations and that the organism is spread by the transmission of small droplets. His expertise has not been challenged and his conclusion is clearly based on his training and experience as a specialist in microbiology and infectious diseases. His opinion about the method of transmission of the infection is also consistent with the factsheet from NSW Health. The Arbitrator was entitled to rely on Professor Bradbury’s evidence in reaching her conclusion.
Other Medical Evidence
If I am wrong on the question of the admissibility and/or weight to be attached to Professor Bradbury’s evidence, I am comfortably satisfied that, even if Professor Bradbury’s evidence is excluded, or admitted but given no weight, the balance of Ms Vogel’s medical evidence, considered with her evidence, is sufficient to establish her case. The evidence from Dr Hanbury and Dr Patrick is not only credible but also compelling. Their histories are consistent with the established facts and their conclusions strongly support Ms Vogel having contracted the infection at work on 20 June 2007.
In his numerous medical certificates, Dr Hanbury consistently described the connection between the disease and the coughing at work on 20 June 2007 as “most likely”, and he confirmed that opinion in his report of 11 February 2008.
Dr Patrick’s evidence is even more convincing. He took a detailed history of Ms Vogel’s work and domestic circumstances. His history that Mr Reid ‘showered’ Ms Vogel with droplets is perfectly consistent with her having been coughed on at a short distance, and with Ms Vogel then washing her face. I accept that history as being accurate. He also recorded that Ms Horne had a chronic cough and that members of Ms Vogel’s house were smokers. Armed with this history, he concluded that it was “very likely” that Ms Vogel acquired the meningococcal infection in the course of her work.
Against this conclusion is the evidence of Dr Millar, who merely states that there is no “positive evidence” to support Ms Vogel having contracted the disease either at home or at work. His opinion seems to be based on his statement that there is nothing to suggest that Mr Reid was “suffering from meningococcal disease nor was a carrier of the organism”. As the disease can be contracted from a person who has no symptoms, it is not necessary to establish that Mr Reid had symptoms of the disease. That there is no evidence that he was a carrier is not determinative of the issue before me. I have found Dr Millar’s evidence unhelpful, as it goes no further than saying that the cause is not known.
I do not believe it is of any consequence that the Arbitrator had no regard to Dr Grant’s report. I have carefully considered his opinion and find it to be neutral. It does not defeat the claim, but concedes that there was “certainly a chance” that the infection was contracted at work. The fact that Dr Grant thought that, in the absence of confirmed cases of meningococcal disease at Sunshine Lodge, the connection with work was a matter of “speculation” is not determinative. The question of causation requires a consideration of all the evidence and the application of a legal standard (discussed below) to that evidence.
The evidence from Drs Patrick and Hanbury provides strong support for Ms Vogel’s claim.
McGuiness
I accept Spigelman CJ’s statement in McGuiness that epidemiological opinion evidence on general causation goes no further than establishing a possible connection between the work exposure and the disease. However, in that case the court was concerned with the strength of the association between asbestos exposure and renal cell carcinoma, aspects of the quality of the epidemiological research, and inconsistencies between the various studies. No such issues arise in the present matter because the evidence establishes that meningococcal disease can be spread by the transmission of small droplets and that Ms Vogel contracted the disease. The question in the present case is whether Ms Vogel contracted it at work or from some other source. That is a straight causation issue requiring the application of the principles discussed in Kooragang.
The principles stated in Carr, Caswell and Furner must be read in the light of the whole of the evidence in each particular case. In McGuiness, Spigleman CJ expressly observed (at [89]) that evidence of possibility “should be regarded as circumstantial evidence which may, alone or in combination with other evidence, establish causation in a specific case”. Indeed, proof beyond reasonable doubt may be established on the basis of circumstantial evidence (Spigelman CJ at [90]). The Chief Justice added (at [91]) that:
“Causation, like any other fact can be established by a process of inference which combines primary facts like ‘strands in a cable’ rather than ‘links in a chain’, to use Wigmore’s simile. (Wigmore on Evidence (3rd ed) para 2497, referred to in Shepherd v R [1990] HCA 56; (1990) 170 CLR 573 at 579).”
After an extensive review of the authorities, McDougall JA (McColl and Bell JJA agreeing) said in Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (‘Nguyen’) (at [61]):
“Where the question for decision is whether, on the balance of probabilities, event A caused result B, the burden of proof is not satisfied merely by evidence that it is possible that the causal relationship exists. See Spigelman CJ in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 at 275 [80]; and see Stein JA in the same case at 293 [201]. However, as their Honours pointed out (see for example Spigelman CJ at 276 [89], [90]; and see also Stein JA at 293 [201]), the inference of causation may be drawn from all of the evidence in the case, including expert evidence as to the possibility that the causal relationship exists. And a number of pieces of evidence, considered together, may justify the drawing of an inference as to causation when none of them, considered individually, could do so. See the metaphor employed by Lord Cairns LC, of the combined illuminative power of numerous feeble rays of light, in Belhaven and Stenton Peerage (1875) 1 App Cas 278 at 279.”
Jones v Dunkel
There is no issue that the Commission is not authorised to choose between guesses (Jones v Dunkel), but that is not what I have done. I have concluded, on the basis of the established facts, that, “as a matter of reason”, those facts “make it more probable than not that the thing to be inferred exists” (McDougall JA in Nguyen at [64]).
Manning
The evidence in Manning was completely different and that case gives the Department no assistance.
Section 9A
The Department’s arguments under this topic have been dealt with above. I do not accept Ms Corner’s evidence that the worker’s duties involved “minimal” or “social” contact only. It completely ignores Ms Vogel’s evidence, which I accept, about her close contact with Mr Reid. Having determined that Ms Vogel contracted the infection in the course of her employment when Mr Reid coughed on her on 20 June 2007, it follows that I am satisfied that her employment was, on the balance of probabilities, the cause of her injury. In these circumstances it is obvious that section 9A is also satisfied.
Ms Vogel’s Contacts Outside Sunshine Lodge
If the Arbitrator failed to give consideration to Ms Vogel’s contacts outside Sunshine Lodge, I have carefully considered that issue on review and I am satisfied that that there is no persuasive evidence that she contracted the disease as a result of those contacts. Ms Vogel’s evidence, which I accept, is that she did not have ‘close contact’ with Ms Horne, or anyone else in her house, in the days leading up to 25 June 2007.
I have carefully considered the fact that a number of members of Ms Vogel’s household were smokers and that being in contact with smokers increases the risk of contracting the disease. However, Ms Vogel was also exposed to smoke at Sunshine Lodge. In the overall assessment of the causation issue, this fact is neutral.
Other than exposure contact with her husband, son and two friends on the weekend of 23 and 24 June 2007, and contact at work on 22 June 2007 the evidence is that Ms Vogel had no contact with anyone else. This evidence comfortably establishes that she had a fairly isolated existence (as Professor Bradbury recorded) in the days before 25 June 2007. I do not accept that Ms Vogel’s contact with her family and friends at home constituted “close contact” of the kind necessary for the transmission of the disease. I consider that being coughed on by a person at such a short distance that sputum entered her eye is the kind of “close contact” that the factsheets suggest is necessary. That happened to Ms Vogel at work, not at home.
The Absence of Linked Cases
It is not correct that one would necessarily have expected “linked cases” of the disease at Sunshine Lodge and, as there were none, it is safe to conclude that the place of employment was not the source of the infection. This submission ignores the evidence that between 5% and 25% of the population carry the disease without showing any symptoms. The investigation by the Health Service was directed at offering protection to those people who came into contact with Ms Vogel after she became infected, not at discovering how she became infected. The disease is not easily transmitted from person-to-person and it is perfectly consistent that Mr Reid was the relevant carrier and that there are no other linked cases at the Lodge. It is not known if Mr Reid has coughed on other people in the manner he coughed on Ms Vogel.
Reasons
The Department argues that the Arbitrator failed to give reasons as to why she did not reject Professor Bradbury’s report. This submission is specious. As no objection had been taken to the admission of Professor Bradbury’s report, the Arbitrator was not obliged to give reasons as to why she did not reject it. Next, it is submitted that the Arbitrator failed to explain the absence of other cases of meningococcal infection at Sunshine Lodge. The Arbitrator was satisfied, as I am, that Ms Vogel contracted the infection in the course of her employment at Sunshine Lodge and she explained the essential grounds upon which she relied to support that conclusion. Having done that, I am comfortably satisfied that the Arbitrator complied with her obligation to give reasons (Soulemezis).
If I am wrong on this issue, I have reviewed and considered all of the issues argued by the Department and, for the reasons set out in this decision, I have reached the same conclusion as the Arbitrator.
Conclusion on Causation
Consistent with the evidence in the Victorian and NSW Health factsheets relating to meningococcal disease, I accept that:
(a)meningococcal bacteria can only be transmitted from human to human and cannot be contracted from animals or the general environment;
(b)it is present in between 5% to 25% of the general population without those persons having any symptoms;
(c)it exists in the nose and throats of the carrier;
(d)transmission of the bacteria requires communication of the secretions from the throat or nose of the carrier to the infected person, and
(e)the average time between infection and the display of symptoms (the incubation period) is between three and five days, but it can be up to 10 days.
Having reviewed the evidence I am comfortably satisfied that it is more probable than not that Ms Vogel contracted meningococcal disease in the course of her employment when Mr Reid coughed on her on 20 June 2007. The evidence that leads to this conclusion is:
(a)the evidence in the factsheets as to the method of transmission of the disease;
(b)the time between the incident with Mr Reid and the development of symptoms (five days) is within the incubation period for the disease;
(c)there is no persuasive evidence that Ms Vogel was exposed to the disease elsewhere;
(d)Ms Vogel had no close contact with anyone else in the 10 days before 25 June 2007;
(e)there is no evidence that anyone in Ms Vogel’s household coughed on Ms Vogel in the manner that Mr Reid did on 20 June 2007;
(f)the evidence from Drs Patrick and Hanbury strongly supports such a connection, and
(g)the other expert evidence is neutral on the issue of causation.
CONCLUSION
Having conducted a review on the merits (per Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 287 at [28]), I have concluded, for the reasons given in this decision, that the Arbitrator’s decision is correct and I agree with her conclusions. The Department has not challenged the quantum of the award entered and that award is confirmed.
DECISION
For the reasons given in this decision, the Arbitrator’s determination of 6 February 2009 is confirmed.
COSTS
The appellant employer is to pay the respondent worker’s costs of the appeal, which are assessed at $2,200.00 plus GST.
Bill Roche
Deputy President
15 May 2009
I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
0
2
0