Glenister v Nmahs-Mental Health (Graylands Hospital)
[2017] WADC 14
•3 FEBRUARY 2017
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: GLENISTER -v- NMAHS-MENTAL HEALTH (GRAYLANDS HOSPITAL) [2017] WADC 14
CORAM: O'NEAL DCJ
HEARD: 21 OCTOBER & 29 NOVEMBER 2016
DELIVERED : 3 FEBRUARY 2017
FILE NO/S: APP 15 of 2016
BETWEEN: GAYLE ANN GLENISTER
Appellant
AND
NMAHS-MENTAL HEALTH (GRAYLANDS HOSPITAL)
Respondent
ON APPEAL FROM:
Jurisdiction : WORKERS' COMPENSATION ARBITRATION SERVICE (WA)
Coram :ARBITRATOR RUTHERFORD
File No :A 16902 of 2016
Catchwords:
Workers' compensation - Appeal from Workers' Compensation Arbitration Service - Leave to appeal - Whether a question of law is involved - Proper construction of the term 'communicable disease' and its related 'Process' within sch 3 - Whether expert evidence required to establish that methicillinresistant staphylococcus aureus is a 'communicable disease' - Whether causation can be reasonably presumed - Proof of work related causation
Legislation:
Workers' Compensation and Injury Management Act 1981 (WA) s 5(1), s 32, s 44, sch 3
Result:
Appeal dismissed
Representation:
Counsel:
Appellant: Mr M L Lourey
Respondent: Mr J Ludlow
Solicitors:
Appellant: Chapmans
Respondent: HWL Ebsworth Lawyers
Case(s) referred to in judgment(s):
Bird v The Commonwealth (1988) 165 CLR 1
The Commonwealth v Thompson (1960) 104 CLR 48
O'NEAL DCJ: This is an appeal pursuant to s 247 of the Workers' Compensation and Injury Management Act 1981 (the Act) from a decision of an arbitrator of the Workers' Compensation Arbitration Service. The arbitrator dismissed the appellant's application for weekly payments of compensation, finding that there was no, or no sufficient evidence that the appellant suffered a compensable injury.
Grounds of appeal
The appellant relies on the following grounds, alleging that the arbitrator erred in law:
1.By finding that the appellant had failed to prove that Healthcare‑Associated Methicillin Resistant Staphhylococcus (sic) Aureus (hereinafter 'HA‑MRSA') was a 'communicable disease' for the purposes of column 1 of Schedule 3 of the Act, notwithstanding accepting that HA‑MRSA was relevantly both a 'notifiable' and an 'infectious' disease (at paragraph 39, page 9 of Reasons);
2.By finding, as a consequence of his error in Ground 1 above, that no medical practitioner had certified that the disease was a communicable disease (see paragraph 59, page 13) when all the legislation requires is a certificate from a medical practitioner that the disease contracted is … one of the diseases set out in column 1 of Schedule 3 and that is in the context of the particular disease being a communicable disease;
3.By finding that the appellant had failed to prove that the disease 'is or was due to the nature of (her) employment' (paragraphs 116 ‑ 119, page 23), through wrongly posing for himself the question whether her employment with the respondent would 'ordinarily tend to cause that disease' (which test the learned Arbitrator sourced from the judgment of Wyndeyer J [Windeyer J] in The Commonwealth v Thompson), when it was sufficient to enquire whether the disease was more likely encountered in the context of the applicant's workplace being a health care environment, rather than not;
4.By finding that the applicant 'did not develop a healthcare associated MRSA as defined in the HISWA report' (at paragraph 91, page 18), which was irrelevant when there was no issue between the parties that the applicant was diagnosed with HA‑MRSA;
5.By finding that the applicant had not 'contracted MRSA in the course of her employment whether at or away from the place of employment, when the italicized words connote no more than a temporal connection between the injury and the employment (and not a causal connection), which issue was not in dispute between the parties (paragraph 129, page 25); and
6.By, further to his error in 5 above, mis‑applying the test of 'significant contribution' when HA‑MRSA is overwhelmingly associated with healthcare environments, and there was no evidence the applicant had at a relevant time been in any healthcare associated environment except in the course of her employment with the respondent, at the respondent's Graylands facility or, on occasion, by escorting Graylands' patients to hospitals.
The issues raised by this appeal involve the proper construction of provisions of the Act, and the application of those provisions to the evidence at the hearing. The respondent properly concedes that an issue of law is involved, and that leave may be granted pursuant to s 247(2) of the Act.
Background
The appellant is a registered mental health nurse. She was employed as such at Graylands Hospital for about 12 years on either a full‑time or part‑time basis. She was working part‑time at Graylands when the matters relevant to this appeal arose.
The following facts, which are not in issue, are taken for the most part from the arbitrator's reasons.
In early January 2014, the appellant suffered intense right ear pain and sought medical treatment. A swab was taken of her right ear. A culture of the swab revealed that the appellant's ear was infected by bacteria. The bacterium was a methicillin‑resistant staphylococcus aureus, commonly abbreviated as 'MRSA' and commonly known as 'golden staph'. As might be apparent from its name, this bacterium is resistant to a number of antibiotics including methicillin.
As some of the medical records tendered before the arbitrator show, it is also known as 'Multi‑drug Resistant staphylococcus aureus', and 'Epidemic MRSA'. This last term offers a broad hint as to the reason for the concern that surrounds this pathogen.
The appellant required treatment with intravenous antibiotics. She was hospitalised for six days in April 2014. She did not return to work until January of 2015.
The appellant's ear problem had begun the previous year. In July 2013 she was seeking help from her GP for a painful right ear. She was diagnosed with a middle ear infection. In August 2013 she saw a Dr Greg Smith, complaining of an irritated right ear canal. This time the problem was diagnosed as an outer ear infection.
A week later, Dr Smith took a swab of the ear for the purpose of a culture. According to the appellant, the swab 'contained no material', that is, it did not identify any bacterium causing an infection. Despite that, Dr Smith started the appellant on a course of Soframycin. That antibiotic, the appellant said, 'did nothing' and she continued to have symptoms of an itchy blocked ear.
In December 2013, while at work, the appellant was examined by a Dr Walker, who was employed at Graylands. He told her that she was suffering from otitis externa. That term is used broadly to describe symptoms of inflammation or infection in the outer ear canal. The condition is sometimes called 'swimmer's ear'.
The first time that MRSA was identified as a pathogen present in the appellant's ear was following a swab in January 2014.
The pathology report with respect to that swab describes MRSA in these terms:
-MRSA is resistant to all penicillins and cephalosporins including flucoxacillin
-This is a strain of MRSA that has the potential to cause outbreaks in hospitals
…
-This is a NOTIFIABLE disease.
The evidence available to the arbitrator with respect to MRSA, its transmission and the morbidity it can cause, was relatively limited. Both parties placed reliance on the annual report for 2012 ‑ 2013 of Healthcare Infection Surveillance Western Australia (HISWA). Much of the evidence that the arbitrator had about MRSA was gleaned from this report. The only witness called who was able to say something about these matters was Ms Rebecca McCann, a registered nurse who also is or was the manager of the Healthcare Associated Infection Unit for Western Australia, the organisation responsible for the collection and analysis of the information presented in the HISWA annual report. The exact status of the evidence that she gave is not entirely clear, but she was not treated as an expert in the field of infectious disease or epidemiology.
As might be guessed from the name of this organisation, it is responsible for gathering data with respect to the incidence of infections that people acquire in the course of healthcare treatment. HISWA does not collect data across the entire community but rather from certain Western Australian healthcare facilities. There is obviously considerable interest in ensuring that members of the public who require healthcare treatment are not exposed to the risk of an infection that may pose greater health consequences than whatever led them to seek care in the first place.
Another document that was before the arbitrator was the HISWA Surveillance Manual. The Surveillance Manual describes the methodology to be used to allow participating healthcare facilities to account for 'healthcare associated infections' so as to ensure that valid comparisons are able to be made.
In essence, before an MRSA infection is counted as 'healthcare associated' by HISWA the event must meet one of two criteria, 'A' and 'B'. The criteria are plainly directed at infections acquired by patients, and not merely the presence of the bacterium on a person. I mention this because there was evidence before the arbitrator that someone can be 'colonised' by MRSA, that is, have it present on their body, without it immediately or even necessarily resulting in infection. Whether or not an infection develops is determined by a number of factors including the place colonised, the general health of the person colonised and in particular the state of their immune system, whether the skin is wounded or broken, and how long the bacterium is present. For example, it may be present briefly and harmlessly on the hands, if proper hand hygiene is exercised.
Criterion A is met where infection is first observed either more than 48 hours after hospital admission or less than 48 hours after discharge. Criterion B broadly involves infection arising within 48 hours post‑admission, when a patient either is suffering neutropenia, or infection arises at the site of some invasive procedure, such as a catheter or surgery or an incision.
HISWA is concerned about the incidence of this particular kind of infection within the 45 hospitals that are monitored. It is not interested in the incidence of infection in the broader community, except for the limited purpose of avoiding wrongly attributing a case of MRSA infection acquired in the community with one that has been acquired in a healthcare facility. Nor are mental health facilities like Graylands required to report to HISWA, because of a historically low incidence of patient infection in those kinds of hospitals.
The information received by HISWA in accordance with the Surveillance Manual is collated and analysed in a number of different ways. One of the graphs in the annual report, figure 23, sets out 'Proportions of MRSA HAIs by clone groups'. In that part of the report, this information is provided (at page 53):
Figure 23 shows the proportions of MRSA HAIs by clone groups since the 2008 – 09 reporting period. MRSA clones are broadly grouped in this report into hospital-associated clones (HA-MRSA) and community‑associated clones (CA-MRSA) based on molecular typing. HA-MRSA clones are often referred to internationally as 'health care‑associated MRSA' and were known previously as 'epidemic MRSA'. These clones are known to be highly transmissible within and between hospitals and cause outbreaks in hospital settings, however they do not spread readily in the community and are uncommon in people who have had no contact with hospitals. CA- MRSA strains have adapted to survive and spread successfully in the community and are further classified as either local WA CA-MRSA or imported CA‑MRSA.
The local WA CA-MRSA clones are the most prevalent in WA and in 2012-13 accounted for 52% of all MRSA isolated from people in both community and healthcare settings. Figure 23 shows that the majority (69%) of all MRSA HAIs were caused by these local CA-MRSA clones, and this is consistent with previous reporting periods.
The proportion of HA-MRSA clones causing HAIs has remained stable for the past four reporting periods at around 24%. The proportion of of MRSA HAI caused by imported CA-MRSA increased this reporting period to 8% of all cases compared with 7% in 2011-12.
Of the 14 HAIs caused by imported CA-MRSA, 13 (93%) were typed as the Queensland clone. This is the predominant imported CA-MRSA clone isolated in WA. The UK 15 clone is the most frequently isolated HA‑MRSA clone associated with HAIs in WA, accounting for 40 (98%) of the 41 HA-MRSA cases in 2012-13.
As can be seen from this passage, there is a distinction between particular strains of the bacterium labelled as 'HA' or 'CA', and the methodology used by HISWA. That methodology may count an infection arising from either kind of strain, 'HA' or 'CA' as a 'Healthcare Associated Infection' if the infection meets one of the two criteria. Conversely, an infection determined to have been caused by an 'HA' strain will not be counted as an 'HIA' if it was not found to meet the 'A' or 'B' criteria. The mere fact that a patient in a hospital is observed to have an infection attributable to the UK 15 clone does not mean that the infection is therefore regarded or counted as a 'Healthcare Associated Infection'. That is not sufficient proof for HISWA.
The pathology tests for the bacteria that were cultured from the swab taken from the appellant showed that the infection had been caused by a particular strain of MRSA identified as 'UK‑EMRSA‑15ST22 MRSA‑IV. This particular strain, the UK 15 clone, is one of those described as 'health care‑associated MRSA' abbreviated as 'HA‑MRSA'.
A medical certificate dated 7 May 2014 was provided by the appellant's GP. Among other things, the appellant's doctor certifies that she was suffering from 'MRSA Otitis externa infection'.
The infection was very troubling, both painful and persistent. After much specialist assistance the appellant underwent surgery on her ear in July 2014. She was however left with damage to her right eardrum and a permanent hearing impairment. It has caused her much anxiety and lost time from work.
The arbitrator received a report prepared by the appellant's GP, Dr Lee‑Baw. In her report of 3 December 2014, Dr Lee‑Baw said this of the appellant's fitness for return to work:
Initially Mrs Glenister was declared unfit for [sic] perform her duties due to her risk of infectivity when she was actively infected with MRSA. As per the microbiology test result of the ear swab, the microbiologist states 'This is a strain of MRSA that has the potential to cause outbreaks in hospitals'. Based on this, I believed that Mrs Glenister would pose a risk to patients and colleagues at work if she still continued to work … . She has not been back to work since 1 July 2014, following her myringoplasty.
After she sought compensation, the appellant was required to attend on Dr Joel Silbert, a consultant occupational physician, at the request of the respondent's lawyers. Dr Silbert was aware of the appellant's complaints in mid‑2013, and the conclusions reached by the GP who examined her at that time, as well as the ongoing and subsequent problems with her ear. Having considered the history taken from the appellant, together with the medical certificates, pathology reports and other documentation available, Dr Silbert offered the opinion that, 'Ms Glenister presents with a clinical picture consistent with the development of a right ear otitis externa and subsequent staphylococcus aureus infection'. From this the arbitrator concluded that Dr Silbert was describing two separate medical issues, one developing after the other.
After describing the history of Ms Glenister's ear problem and the conclusions available from the medical reports in evidence, the arbitrator said at pars 32 and 33:
Given the above, I find that Ms Glenister's MRSA infection first occurred in January 2014. There is no or no sufficient evidence to establish that Ms Glenister's right ear was infected by MRSA until that time, given the earlier swab results and Dr Silbert's report, even though there was a history of right ear infection since July 2013, assuming that right ear symptoms continued during the period July 2013 to January 2014, which is uncertain.
Without any medical evidence to this effect, I cannot safely deduce that an MRSA infection caused or contributed to the earlier middle ear and outer ear infections. Indeed, the evidence is to the contrary. Dr Silbert clearly distinguishes the otitis externa and MRSA as separate infections.
There is no challenge to these findings of the arbitrator.
A central issue in this case was causation. It was incumbent on the appellant to show that the infection that she developed was due to the nature of her employment or contracted by her in the course of her employment. As will be seen, one potential means of doing so was by relying on a statutory presumption.
The appellant's claim originally went forward relying on a contention that her infection was the direct result of nursing a Graylands' patient who was in fact diagnosed with a MRSA infection. As the arbitrator records (at par 80) it was subsequently discovered that that patient was determined to have a different MRSA clone than the one identified as infecting the appellant. The arbitrator, (incorporating the language of the deeming provision), recorded (at par 79) that the appellant '... effectively conceded there is no evidence to prove that there was such an action, that is a specific infection from an infected person or object'.
Before the arbitrator, and on this appeal, counsel for the appellant placed considerable reliance on the fact that the UK 15 clone has been labelled as an 'HA‑MRSA' and that the appellant was employed as a nurse in a health care facility. While these were the central props of the appellant's argument in respect of causation, the arbitrator records other evidence given on this subject:
96.Ms Glenister contends broadly that the infection is due to the nature of her employment, as she is a nurse and while working in the healthcare environment will come into contact with MRSA infected patients and in that regard points to the HISWA report to establish the fact that MRSA is prevalent in such environments.
…
101.Her further evidence is that during her employment at Graylands she nursed patients who had been diagnosed with MRSA. She knew this because as a nurse she had access to the 'notes' presumably the clinical and nursing notes for each patient. Her evidence is that one of her patients was on intravenous antibiotics to treat the MRSA infection. Ms Glenister's evidence is that she did not know what type of MRSA infection that [sic] or the other patients had. In addition, Ms Glenister gave no evidence as to when these people were patients at Graylands.
102.Her evidence, which I accept, is that as a mental health nurse, she deals with patients, and comes into physical contact with items such [as] soiled clothes, beds, and, from time to time, accompanies Grayland's patients to treating hospitals. I understand from the evidence that MRSA is spread by contact, that is, contact with an infected person or contact with contaminated objects. For example, if a person touches an object which has been touched by somebody who has an MRSA infection, then the MRSA may spread to that other person.
As the arbitrator records, there was some evidence from the appellant that from time to time she was required to accompany Graylands' patients to acute care hospitals. The evidence did not appear to arise above that level of generality. That was representative of the evidence presented on her behalf.
There was other evidence that tended to diminish whatever probative weight might be derived from the appellant's employment as a mental health nurse in Graylands Hospital as the source of her colonisation. First, Graylands Hospital is not a healthcare institution from which HISWA collects data. It appears that the incidence of MRSA infection in institutions of that kind is not such as to justify the effort of collecting the data. The position with respect to acute care hospitals and hospitals where surgery is performed, and aged care and certain other care facilities, is different.
To the extent that there was any evidence about rates of infection at Graylands, the evidence was that the UK 15 clone had not been discovered in Graylands at least in the period August 2012 ‑ August 2013. The arbitrator had before him a memorandum dated 16 September 2014 from a Ms Elva Macdonagh, infection control nurse, NMHS Mental Health, based on results from Graylands. The arbitrator sets out its contents at par 106:
106.The subject of that memorandum is 'MRSA in Graylands August 2012 – August 2013' and states as follows:
Please find our statistics for the above time frame you have enquired about.
•Graylands had no cases of Healthcare Associated MRSA (HA‑MRSA), MicroAlert C UK 15 is a MRSA clone that is classified as HA‑MRSA
•Graylands had 5 cases of Community Associated‑MRSA, MicroAlert B
•We have never had an outbreak of MRSA in Graylands
•The staff member in question had the UK 15 MRSA clone
It is improbable that a person with the MRSA clone UK 15 acquired this while working in Graylands, during the period of time specified, from August 2012 to August 2013. The person in question is more likely to have become colonised with this if they have worked in a hospital outside of WA, or been an inpatient in a hospital.
Rates of MRSA are so low in mental health that Healthcare Infection Surveillance Western Australia (HISWA) excludes mental health from MRSA Healthcare Associated Infections mandatory reporting.
The arbitrator was alive to the fact that the end of the period covered by the memorandum was prior to the time that the appellant was found to be infected with MRSA. As he notes however, there was no challenge to the accuracy of the contents of the memorandum, and no other information available on that point.
Next, there was considerable evidence before the arbitrator as to the methods imposed by the Department of Health in this state to minimise the risk of cross‑infection. The evidence was that all health care institutions in this State have relatively modest levels of MRSA infection compared to other communities. The evidence was that 'for a number of decades the Department of Health has had clear health guidelines as to the maintenance of clean health in hospitals, for example by washing hands and using sterile equipment, to prevent infection …'. The appellant gave evidence to the effect that in the course of her employment at Graylands she routinely followed those health guidelines and that in fact she adhered to that policy 'stringently'.
Ms McCann gave evidence that MRSA could be spread from person to person on contact, and that that could occur in the community, by the same means in which it was spread in hospitals. While she declined to comment about standards of infection control in doctors' surgeries, she acknowledged that MRSA could be acquired in a doctor's surgery.
Disease – the statutory provisions
The extended definition of 'injury' in s 5(1) of the Act includes the following meanings:
(b)a disease because of which an injury occurs under section 32 or 33; and
(c)a disease contracted by a worker in the course of his employment at or away from his place of employment and to which the employment was a contributing factor and contributed to a significant degree …
In div 3 of the Act under the title 'Injury: specified industrial diseases', s 32 provides as follows:
32. Some industrial diseases in Sch. 3, compensation for
Where a worker is rendered less able to earn full wages by reason of suffering from, or his death is caused by, any disease, except pneumoconiosis, mesothelioma, lung cancer, or diffuse pleural fibrosis, mentioned in column 1 of Schedule 3 and the disease is or was due to the nature of any employment in which the worker was employed at any time within one year previous to the date of being so rendered, whether under one or more employers, an injury, being that disease, of the worker occurs and this Act applies to that injury subject, however, to this Division.
Under the heading 'Disease deemed due to nature of employment', s 44 provides:
44. Diseases in Sch. 3 deemed due to employment in process in Sch. 3
If the worker at or immediately before the date on which the worker was rendered less able to earn full wages was employed in any process mentioned in column 2 of Schedule 3 and produces a certificate from a medical practitioner that the disease contracted is the disease or one of the diseases in column 1 set opposite the description of the process, such disease shall be deemed to have been due to the nature of the employment, unless the employer proves the contrary.
I will set out below portions of sch 3 'specified industrial diseases' showing the juxtaposition of some of the matters included in columns 1 and 2.
Column 1
Description of Disease
Column 2
Description of Process
Arsenic, phosphorus, lead, mercury or other mineral poisoning Any employment involving the use or handling of arsenic, phosphorus, lead, mercury, or other mineral, or their preparations or compounds. Anthrax Wool‑combing; wool‑sorting; handling of hides, skins, wool, hair, bristles, or carcasses; loading and unloading or transport of merchandise. Communicable diseases Employment in an occupation or in a situation exposing the worker to infection by the intermediate hosts of any communicable disease or by agencies transmitting any communicable disease, where within a reasonable period of incubation, specific infection has followed demonstrable action of the particular vectors or agents concerned in the transmission of that disease, or where that action can be reasonably presumed. … Poisoning by carbon bisulphide Any process involving the use of carbon bisulphide or its preparations or compounds. … Leptospirosis; endemic typhus, scrub typhus, Brills disease, swineherds disease, plague, mite dermatitis and scrub itch Employment in an occupation or in a situation exposing the worker to infection with a specific disease transmissible from animal to man where the specific infection associated with occupation or situation develops within its known incubation period and can be reasonably presumed to have occurred in the course of such employment. … Pneumoconiosis Any process entailing exposure to mineral dusts harmful to the lungs. Mesothelioma Any process entailing substantial exposure to asbestos dust. … … Hepatitis B Employment in a hospital or other medical centre or a dental hospital or dental centre or employment associated with a blood bank. Diffuse pleural fibrosis Any process entailing substantial exposure to asbestos dust.
Disposition
Ground 1
An issue which absorbed a considerable amount of time both before the arbitrator and on the appeal is whether MRSA is a communicable disease and whether it is possible to make that finding without expert medical evidence. The arbitrator easily reached the conclusion that MRSA was an infectious disease. There was evidence before him, which he accepted, that it is also a 'notifiable' disease. That is, the detection of MRSA is a matter which must be reported to Public Health authorities. None of that is challenged.
The arbitrator referred to Mosby's Medical Dictionary, 9th ed where the word 'communicable' is defined as 'transmissible by direct or indirect means, as a communicable disease'. Unsurprisingly the arbitrator concluded that 'it appears therefore that it is a disease's ability to transfer from one person to another which makes it 'communicable'. The arbitrator however held that 'there is no or no sufficiently clear medical evidence in this case identifying MRSA as a communicable disease'. Rather he said, this was a matter where he would have been assisted by expert evidence.
With respect to the learned arbitrator, our knowledge of the causes of infectious and contagious disease and the importance of antisepsis has moved along considerably since the mid‑19th century. The germ theory of infectious disease is well understood as a matter of common knowledge, as is the rationale for and importance of antisepsis to avoid contagion.
There would be a reasonable argument in my view that in 2016 a court or tribunal could take judicial notice of the fact that golden staph is an infectious disease that is readily transmitted from person to person either by direct contact or by contact with intermediate objects. It seems to me that that is properly described as a notorious fact.
In any event, so far as its ability to be categorised as a 'communicable disease', again that does not in my view appear to be a subject matter that requires expert evidence. There was a great deal of evidence about the manner in which MRSA could be transferred from person to person, both directly and indirectly. It was not controversial.
The arbitrator properly referred to the definition that appears in Mosby's Medical Dictionary. With respect to the learned arbitrator, in my view there was more than sufficient evidence here, if evidence was needed, that MRSA was a communicable disease.
I would allow ground 1.
Ground 2
Dealing with a related issue the arbitrator said, at par 59:
59.In that regard, I also note at this juncture that there is no certificate from a medical practitioner as referred in s 44 of the Act, namely a certificate that the 'disease' is a communicable disease. Although this impacts on the issue whether Ms Glenister can utilise the 'deeming' provision set out in s 44, and this aspect of this dispute is later considered, the requirement for a medical certificate tends to support my conclusion that I need medical evidence establishing that MRSA is a communicable disease.
That conclusion is challenged by ground 2.
It must be observed that a legal practitioner hoping to rely on statutory deeming provisions in order to overcome issues of proof would be prudent to have careful regard to the statutory language sought to be relied upon. It might be regarded as a courageous decision, if decision it was, not to seek a certificate from the appellant's medical practitioner in the exact terms required by s 44. In this case however Dr Lee‑Baw certified that the appellant was suffering from a 'MRSA infection'. I am satisfied that MRSA and the infection it can produce is a communicable disease, or 'one of the diseases' that falls into that category.
In my view, on its proper construction, this particular requirement of s 44 may be satisfied by a medical practitioner certifying that a person is suffering from a disease that it is established is a communicable disease. For that reason, in my view, the certificate provided by Dr Lee‑Baw meets the requirements of s 44.
It follows that I would allow ground 2.
Grounds 3 - 6
The real problem here for the appellant in seeking to rely on the deeming provision of s 44 is the failure to address directly the issues required by column 2 – 'description of process'. Both the grounds of appeal and the submissions in support tended to conflate the provisions of the schedule with the requirements of s 32.
While the arbitrator concluded that he was unable without expert evidence to determine that MRSA was a 'communicable disease', he showed no such reluctance when addressing the 'process' provisions of column 2.
In that regard he said as follows:
76.As to 'exposing the worker to infection by the intermediate hosts of any communicable disease or by agencies transmitting any communicable disease', I find as to MRSA, the 'intermediate hosts' are either people who, or objects as soiled clothes which, transfer the MRSA organism to another person.
77.As to a 'reasonable period of incubation', there is no or no sufficient evidence to establish what that is, vis-à-vis MRSA, if there [sic] an incubation period. The only evidence which may touch on this topic is from the HISWA report, which speaks of a health‑associated MRSA if it is acquired within 48 hours of surgery or admission as the case may be. From that it may be possible to deduce the incubation period is 48 hours, but I consider I would be guessing in the absence of any medical expert evidence.
78.As to 'specific infection', I presume that means a particular infection.
79.As to 'demonstrable action' of a specific infection, Ms Glenister has effectively conceded there is no evidence to prove that there was such an action, that is, a specific infection from an infected person or object.
80.Ms Glenister's original claim was based on her contention that her infection was a result of nursing a Grayland's patient who was diagnosed with an MRSA infection. However, it was subsequently discovered and it is common ground that the patient in question was diagnosed with another MRSA clone and therefore her MRSA infection could not have come from that source.
81.Further, even though Dr Lee‑Baw in her report refers to being told of Ms Glenister's colleagues being infected by MRSA, thereby pointing to another potential source of infection at work, Ms Glenister's evidence was that those were not 'her exact words' to Dr Lee‑Baw and that no colleague with whom she worked had been diagnosed with an MRSA infection during the period they were colleagues at Graylands.
82.Therefore, Ms Glenister's case was that the 'action' (the infection) can be 'reasonably presumed'. The insertion of the word 'reasonably' denotes some kind of objective basis, ie, pragmatically, there must be at least some evidence from which objectively the presumption can be made.
As the arbitrator observes, correctly in my view, the matter of a 'reasonable period of incubation' could never be determined without expert evidence. Again, correctly in my view, the arbitrator concluded that the 48 hour period referred to in the HISWA report was not sufficient in itself to resolve that issue. The timing of a 'period of incubation', reasonable or otherwise becomes even more problematic given the evidence about the potential for colonisation by MRSA.
The arbitrator may well be right in the construction he implicitly gives to this part of sch 3. However, it is questionable in my view whether other aspects of the relevant 'process' for 'communicable disease' could safely be construed and applied to any available facts without expert evidence. There was however no challenge to the construction placed on those words by the arbitrator and no challenge to his conclusion that the appellant could not bring herself within the first method of deeming that her infection was due to the nature of employment. That necessarily then left the question as to whether or not the sch 3 process could be established because 'that action' (specific infection following demonstrable action of the particular vectors of agents concerned in the transmission of that disease) can be reasonably presumed.
The arbitrator found that it could not be reasonably presumed and that, as a consequence, the appellant 'continues to carry the onus to establish that the infection occurred due to the nature of her employment.
The remaining grounds of appeal do not, with respect, appear to clearly distinguish between the proposition that a work connection could be 'reasonably presumed', and proof on the balance of probabilities that the infection was contracted 'in the course of … employment' or 'due to the nature of [her] employment'. The problem was compounded by a submission on behalf of the appellant that, as a result of all of the alleged errors of law described in the grounds of appeal,
…the learned arbitrator failed to deem the HA‑MRSA as being 'due to the nature of her employment' that would have moved the onus of rebuttal to the respondent (see Johnson v Simms Cooper (Freezing Works) Pty Ltd).
It might be thought that, logically, unless the appellant could show that her circumstances were such as to at least invoke the 'reasonably presumed' aspect of the 'communicable disease process', proof on the balance of probabilities that illness was 'due to the nature of employment' was never going to be found. Establishing that an illness was due to the 'nature of the employment' (s 32) using s 44 should, one would think, be easier than proof on the balance of probabilities that 'a disease [was] contracted by a worker in the course of his employment' in the terms of s 5(1), or simply 'due to the nature of employment'. In oral submissions counsel for the appellant accepted that proposition, and accepted that unless the appellant's infection could be 'reasonably presumed' to have occurred in the manner described by the sch 3 process, the appellant's case must fail.
Ground 3
The arbitrator found as a matter of fact that, because her work did not involve surgery or hospital admissions, that HA‑MRSA UK 15 infection was not a necessary risk or incident of the appellant's employment: par 119. The arbitrator held that 'There is little if any evidence to establish that her employment duties at Graylands 'ordinarily tend to cause that disease'' '. There is no challenge to those findings of fact.
In written submissions the appellant argues that the arbitrator effectively placed too high a burden on the appellant in proving that her infection was due to the nature of her employment, by posing the question as to whether the appellant's employment would 'ordinarily tend to cause that disease'. That test, arising from the decision of the High Court in The Commonwealth v Thompson (1960) 104 CLR 48, did not, it was submitted, reflect the correct test. Rather, the appellant argued, the correct test was whether the infection was 'more likely encountered' in the appellant's workplace, characterised as 'a health care environment' than elsewhere. Authority for this was said to be provided by the decision of the High Court in Bird v The Commonwealth (1988) 165 CLR 1.
Thompson was a claim under Commonwealth legislation brought by the widow of a Deputy Commissioner of Taxation. The Deputy Commissioner had suffered from heart disease for some time and collapsed and died from a 'coronary occlusion' while making a farewell speech for a colleague. The judge at first instance found that, consistently with the language of the relevant Commonwealth legislation, that Mr Thompson's heart disease was aggravated or accelerated by his employment and that 'the disease was due to the nature of the employment in which the employee was engaged by the Commonwealth' and the Commonwealth was accordingly liable to pay compensation.
The High Court allowed the appeal on the basis that it had not been shown that,
the 'nature' of the employment of the Deputy Commissioner of Taxation ... is shown to tend to cause or to contribute to the contraction, aggravation or acceleration of coronary disease or any of its consequences.
Nor, it was held, was there found to be any compelling evidence that Mr Thompson's death, or the disease that caused it, was ' ... in fact in any way brought about or accelerated or influenced by his employment'.
The language of the legislation that was considered in Thompson is consistent with that of s 32 of the Act, ' … disease due to the nature of … employment'. The case of Bird however dealt with different statutory provisions that bear no resemblance to anything in issue in this case.
Bird was a case where the factual issue was whether a particular type of cancer may or may not have been attributable to exposure to a particular type of radiation, encountered by the claimant. That case was also ultimately resolved on the basis of a lack of proof. There, no factual finding had ever been made that the particular cancer experienced by the claimant had in fact been caused by a radioactive substance. The claimant there was unable to bring himself within the particular deeming provision of that legislation.
I do observe that, as a matter of logic, there are different issues at play in proving causation of illnesses commonly recognised as industrial diseases, for example black lung or asbestosis, or illnesses where the aetiology is not obvious, and the proof of the cause and source of an infection. For example, with illness due to infection, matters of contribution seem unlikely to figure. Either someone has, in some way, been exposed to a particular pathogen which has led to infectious disease, or they have not.
I do not find any error on the part of the learned arbitrator in relying on the authority of Commonwealth v Thompson. Accordingly, ground 3 is dismissed. I observe that the factual finding supporting the arbitrator's conclusion in this respect is unchallenged.
Ground 4
Ground 4 challenges the arbitrator's conclusion that ' … according to my understanding of the evidence and report classifications, Ms Glenister did not develop a healthcare associated MRSA as defined in the HISWA report': par 91. The arbitrator's conclusion in that respect does follow from a consideration of the application of the criteria used by HISWA to assess whether a particular MRSA infection can be considered to be a 'healthcare associated event' or Healthcare Acquired Infection.
In my view there is a degree of confusion in the manner in which the arbitrator sought to apply criterion A and B to the circumstances of the appellant. Those criteria were never going to apply to the appellant because her infection did not follow hospital admission or discharge. HISWA is necessarily concerned with the rates of infection among patients of health care institutions, not workers.
In fairness to the arbitrator, the reliance placed on the HISWA report by the appellant, and the absence of any other substantial basis of proof, was a substantial invitation into error. As the arbitrator said with respect to the HISWA criteria, at par 95, 'Since Ms Glenister does not come within any such category I find that the HISWA report does not assist Ms Glenister'. It is plain in context that he is referring only to the criteria that HISWA use for determining whether an MRSA infection is a Healthcare Associated Infection. He is correct in saying that the criteria do not assist the appellant.
Ground 4 of the appeal effectively obscures the real issue in this regard.
It was not in fact particularly relevant whether the appellant met criterion A or B. Nor, conversely was it determinative that the particular clone that infected the appellant has been categorised as an HA‑MRSA. It would be different if there was evidence to the effect that the UK 15 clone could only be communicated in a hospital setting, as opposed for example to a doctor's surgery or from some other person encountered outside of a hospital who has been colonised with that clone. It might be different if there was tangible evidence about rates of prevalence in the community, proof of the existence of the UK 15 clone either in Graylands or in some demonstrable proximity to the appellant, at some relevant time. It might be different if the appellant had put forward evidence of probative value tending to establish the impossibility or at least significant unlikelihood that she had been or could be exposed to MRSA outside of work. That however was not the evidence.
The high water mark of proof in this respect was the comment in the HISWA report to the effect that while 'highly transmissible within and between hospitals', HA‑MRSA clones 'do not spread readily in the community and are uncommon in people who have had no contact with hospitals'. The evidence was not that HA‑MRSA cannot or does not spread within the community. The evidence of Ms McCann, was that they can and do. It begs the question as to what might be meant by 'not spread readily in the community', given the context of disease commonly labelled as 'Epidemic MRSA', for the way it can spread in a hospital. To put this another way, if something can spread like an epidemic if it takes hold in a hospital, how readily by comparison might it spread from a colonised (or infected) individual in the community to another person? How easily transmissible – or not – might it be in a doctors' surgery? There was no evidence about this.
What evidence there was, was that at a time proximate to the appellant's infection, the 'health care institution' where she worked was not regarded as having a sufficient incidence of MRSA to warrant reporting. And, while the appellant was, at the highest, from time to time required to escort patients into an acute care hospital, there was no recorded incidence of the UK 15 MRSA clone being brought into Graylands.
Nowhere do the grounds of appeal engage with the real issue with respect to the column 2 process. That is, the arbitrator's conclusion at par 113 that: '... there is insufficient evidence by which the demonstrable action can reasonably be presumed'.
The submission made on behalf of the appellant is that, given the characterisation of the UK 15 clone as HA‑MRSA, and the statement in the HISWA report that HA‑MRSA clones 'do not spread readily in the community,
Absent evidence the appellant contracted the HA-MRSA outside the 'hospital setting' (and there was no such evidence), the only conclusion available to the learned Arbitrator was that the appellant was infected with the HA-MRSA pathogen whilst at work.
With respect, unless the appellant were able to bring herself within the statutory presumption, that submission reverses the burden of proof. Unless there was some evidentiary basis for concluding that the appellant probably acquired the MRSA at work or in some work related context, or that at least the criteria described by the sch 3 process could be 'reasonably presumed', the arbitrator was entitled to find as he did that the appellant had not proved her case.
The matters raised by ground 4 did not lead to any relevant error.
Ground 4 is dismissed.
Ground 5
Ground 5 misstates the arbitrator's finding. The arbitrator did not find,
... that the applicant had not 'contracted MRSA in the course of her employment whether at or away from the place of employment ...
Rather, in the section of his reasons which is criticised by ground 5, the arbitrator found,
Based on the evidence set out earlier in the Reasons, and broadly for the reasons dismissing the claim made within s 32 of the Act, I am not satisfied that there is any or any sufficient evidence from which I can conclude that Ms Glenister contracted MRSA in the course of her employment whether at or away from the place of employment.
Ground 5 also erroneously states that it was not in dispute between the parties that there was a 'temporal connection' between the appellant's employment and her illness. The respondent did not concede that point. The respondent accepted that in some cases it will be sufficient to prove that there was a temporal connection between work and illness in order to prove that the illness was 'due to the nature of employment', but submits that this is not such a case.
Section 5(1)(c) describes one means of establishing eligibility for compensation for work related illness, where the disease is contracted 'in the course of employment, at or away from his place of employment and to which the employment was a contributing factor ... '. Section 32 and s 44 provide different means for establishing an entitlement to compensation. The arbitrator considered each of these. He referred to all the evidence that he relied on, including that of Ms McCann with respect to the ability of MRSA to be transmitted directly from one person to another. Regardless of how the UK 15 clone might be labelled or categorised, the evidence before the arbitrator did not preclude, to any significant extent, the prospect that the appellant could have been colonised by MRSA by some means other than her work duties or time at work.
The arbitrator's reasons do not reveal error and ground 5 is dismissed.
Ground 6
For the reasons set out above with respect to grounds 3 – 5, ground 6 must also fail. I do observe however that the use of the adverb 'overwhelmingly' to describe the extent of the association between HA‑MRSA and 'health care environments' at least verges on hyperbole. Second, the resort to imprecise and undefined terms such as 'health care environments' does not assist.
Further, to say that there was 'no evidence' that the appellant had 'at a relevant time' been in any 'health care associated environment except in the course of her employment ...' appears to be misconceived for at least two reasons. Her own doctors' surgery might reasonably fall within the vague ambit of a 'health care associated environment'. And, putting aside a problem observed by the arbitrator that the absence of proof does not ordinarily amount to proof, the evidence was that the appellant could have been colonised by some other person who had been in a 'health care associated environment' whatever exactly that might extend to.
For these reasons, ground 6 is dismissed.
For the reasons set out above, the appeal is dismissed.
Conclusion
For the reasons set out above I would allow grounds 1 and 2, in my view the arbitrator was correct in his conclusion that the appellant failed to proof her case. Accordingly the appeal is dismissed.
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