Hunter New England Local Health Network v Turnbull - [2014] NSWWCCPD 58

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Hunter New England Local Health Network v Turnbull [2014] NSWWCCPD 58
APPELLANT:	Hunter New England Local Health Network
RESPONDENT:	Catherine Gail Turnbull
INSURER:	QBE Insurance (Australia) Ltd
FILE NUMBER:	A1-3703/13
ARBITRATOR:	Mr R Caddies
DATE OF ARBITRATOR’S DECISION:	16 June 2014
DATE OF APPEAL DECISION:	10 September 2014
SUBJECT MATTER OF DECISION:	Claim for lump sum compensation; chronic/recurrent pseudomonas infection; causation of bronchiectasis; interlocutory decision; causation of infection; error of law alleged
PRESIDENTIAL MEMBER:	Deputy President Kevin O'Grady
HEARING:	On the papers
REPRESENTATION:	Appellant:	Hicksons Lawyers
Respondent:	New Law Pty Ltd
ORDERS MADE ON APPEAL:	1. Leave to appeal against interlocutory orders is granted. 2. The Arbitrator’s findings and orders as recorded in the Certificate of Determination dated 16 June 2014 are confirmed. 3. The appellant is to pay Ms Turnbull’s costs of the appeal.

BACKGROUND

Ms Catherine Gail Turnbull was employed as a registered nurse by the appellant, Hunter New England Local Health Network. That employment commenced in 1979, following which Ms Turnbull was employed by the appellant on an intermittent basis.
In 2005 Ms Turnbull obtained qualifications as a Clinical Nurse Specialist (CNS) in respiratory medicine. Following which her duties concerned management of patients who were suffering respiratory illnesses including infection.
In March 2006 Ms Turnbull consulted her general practitioner, Dr Ross Haron, by reason of a troublesome cough. Dr Haron diagnosed acute bacterial bronchitis which, in his opinion, was due to haemophilus influenzae and pseudomonas infection. After a period of absence from work, Ms Turnbull returned to her duties following which she experienced recurrent respiratory illness.
In August 2010 Dr Haron provided a WorkCover NSW medical certificate to Ms Turnbull which certified that she was unfit for work by reason of “chronic/recurrent pseudomonas bronchitis and sinusitis”. In that certificate, Dr Haron expressed the view that Ms Turnbull’s employment was a substantial contributing factor to her injury, being the respiratory illness described. A claim for compensation benefits was presented to the appellant by Ms Turnbull. That claim was declined. Written notice of the rejection of the claim was given by the appellant’s insurer to Ms Turnbull by letter dated 8 September 2010. The matters in dispute were noted in that correspondence as being failure on the part of Ms Turnbull to make a claim for compensation within “the timeframes set in the legislation”; that no injury had been suffered in the course of Ms Turnbull’s employment, and that Ms Turnbull’s employment was a substantial contributing factor to any condition that she might “now have”.
Ms Turnbull has not worked for the appellant since 2010 but has obtained some short periods of employment working as a casual teacher with the Department of Technical and Further Education. Since ceasing work with the appellant, Ms Turnbull has continued to suffer recurrent respiratory symptoms and has undergone intensive medical treatment.
In March 2013 Ms Turnbull commenced proceedings in the Commission against the appellant seeking orders with respect to her entitlement to workers compensation benefits. It was her allegation that the condition, being acute bacterial bronchitis due to haemophilis influenza and pseudomonas infection, was caused by reason of her exposure to patients suffering pseudomonas infection whilst they were resident at the appellant’s hospital. Ms Turnbull claimed weekly payments of compensation dating from March 2010 and continuing as well as lump sum compensation. The claim was subsequently amended by deletion of the claim in respect of weekly payments. The outstanding claim concerning lump sum compensation came before Arbitrator Robert Caddies for conciliation and arbitration on 5 June 2014. The matter proceeded to hearing following which the Arbitrator delivered his determination of the dispute extempore. On 16 June 2014 a Certificate of Determination was issued in the following terms:
“The determination of the Commission in this matter is as follows:
1.       That the proceedings with respect to weekly benefits compensation at parts 5.1 and 5.2 as claimed be discontinued.
2.       That the requirement to file a notice of the discontinuance pursuant to Rule 15.7 is dispensed with.
3.       Finding that, on the balance of probabilities, the applicant suffered personal injury arising out of and in the course of her employment with the respondent as a Clinical Nurse Specialist in respiratory medicine in February 2006 when she suffered pseudomonas infection which led to the development of bronchiectasis.
4.       Finding that the employment concerned was a substantial contributing factor to her injury.
5.       Remit the matter to the Registrar for referral to an Approved Medical Specialist on the following basis:-
a.Date of Injury: February 2006
b.Matters for assessment: Permanent impairment (respiratory)
c.Method of Assessment : Whole person impairment
d.Evidence
i. Application to Resolve a Dispute and attached documents;
ii. Reply;
iii. Application to Admit Late Documents and attached documents lodged by the applicant on 19 December 2013 and 28 March 2014; and
iv. Application to Admit Late Documents lodged by the respondent dated 30 April and 4 June 2014.
6.       That the respondent pay the applicant’s costs as agreed or assessed.
7.       Having regard to the significant and unusual issues of fact and medical causation raised, I certify the matter is complex and order the costs payable, in respect of both parties, are to be subject to an uplift of 30 per cent.”

PRELIMINARY MATTERS

Thresholds

There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.

On the papers

Both parties submit that the appeal can proceed to be determined “on the papers” as is permitted by s 354(6) of the 1998 Act. Having regard to Practice Directions Nos 1 and 6 and the documents that are before me, 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.

Interlocutory

Both the appellant and Ms Turnbull assert that the decision of the Arbitrator is not interlocutory in nature. Should those assertions be incorrect this appeal may not proceed in the absence of a grant by the Commission of leave: s 352(3A) of the 1998 Act.
The Arbitrator has determined the fundamental disputes between the parties concerning the occurrence of injury as alleged and that employment was a substantial contributing factor to that injury (orders [3] and [4] noted at [6] above). Notwithstanding those determinations, no final order concerning Ms Turnbull’s right to, nor the appellant’s liability for, lump sum compensation may be made until the medical dispute concerning whole person impairment has been determined by an Approved Medical Specialist: s 65(3) of the Workers Compensation Act 1987 (the 1987 Act).
The orders recorded in the Certificate of Determination do not, in my opinion, finally dispose of the rights of the parties as was discussed by Gibbs J (as his Honour then was) in Licul v Corney [1976] HCA 6; 180 CLR 213 (at 225). The orders made by the Arbitrator are in my opinion interlocutory in nature.
Having regard to the nature of the arguments raised on appeal, I consider it desirable for the proper and effective determination of the dispute that leave be granted to the appellant to proceed with the appeal and I so order.

ISSUES IN DISPUTE

The grounds of appeal upon which the appellant relies are stated as follows:
“The decision of the Arbitrator is affected by error of law in that:
1.   There was insufficient evidence to support the finding that the pseudomonas bacteria tested to be present in 2006 was as a result of the nature of the work the worker performed with the respondent.
2.   The Arbitrator erred in determining that there was sufficient evidence to establish that the bronchiectasis diagnosed in September 2010 resulted from the pseudomonas bacteria tested to be present in 2006.
3.   The Arbitrator failed to take into account all of evidence [sic] before the Commission in assessing the issue of causation.”
The appellant seeks an order that the Arbitrator’s decision be set aside. The relief sought includes a request that the matter be re-determined on appeal, and that an award should be entered following such redetermination in favour of the appellant.

THE ARBITRAL PROCEEDINGS

The proceedings before the Arbitrator were recorded and a transcript (T) has been produced and made available to the parties. At the hearing Ms Turnbull was represented by her solicitor and the appellant was represented by counsel. The documentary evidence before the Arbitrator was identified by him at the commencement of the hearing. Particulars of that material are recorded at T1-2. No oral evidence was adduced before the Arbitrator.

The evidence

There is a statutory declaration made by Ms Turnbull dated 4 June 2012 before the Commission. Ms Turnbull, a registered nurse, had been employed “on and off” at Glen Innes Hospital since 1979. She trained as a respiratory nurse in 1997, following which she cared for respiratory patients, both inpatients and those attending the emergency department. In 2005, Ms Turnbull became qualified as a CNS in respiratory medicine. Thereafter she cared for patients with respiratory illnesses every day at work.
Ms Turnbull had not suffered chest infection or pseudomonas infection prior to 2006. She has always been a non-smoker. In the course of her work as a respiratory CNS, she was often “in close contact with patients with respiratory infections”. Patients admitted with chest infections were often not “diagnosed with pseudomonas for up to five days after admission, and were treated in normal wards in the meantime”.
In February 2006, there were two patients with “pseudomonas infection” at the hospital. Ms Turnbull was then very busy and worked long hours. She developed a cough. On 10 March 2006 she consulted Dr Haron. The evidence of Dr Haron, in a report dated 18 January 2011, establishes that an initial sputum culture grew haemophilus influenzae and a subsequent sputum culture, conducted on 29 March 2006, grew pseudomonas species, in addition to haemophilus influenzae. Dr Haron diagnosed acute bacterial bronchitis due to haemophilus influenza and pseudomonas infection. Ms Turnbull was absent from work for two weeks.
Ms Turnbull stated that, following her illness in 2006, she developed a non-productive cough, approximately three or four times per year, at which time she experienced breathlessness. In 2007, Ms Turnbull suffered a “bad episode of sinusitis” at which time she was told that pseudomonas was grown from cultures. She received antibiotic treatment and underwent nasal sinus surgery. Ms Turnbull continued thereafter to experience recurrent cough and breathlessness. The evidence of Ms Cathryn Jones, health service manager at Glen Innes District Hospital, establishes that Ms Turnbull applied in 2008 for a position in the midwifery program, which she commenced in 2009.
The evidence of Ms Janice Egan, formerly employed as a registered nurse by the appellant, found in her statement dated 13 December 2013, suggests that at relevant times a number of patients, including four chronically ill patients named by Ms Egan, were regularly treated for respiratory problems by Ms Turnbull at Glen Innes District Hospital. Some of those patients, it was stated, were known to have pseudomonas.
Ms Turnbull’s subsequent medical history is summarised in a discharge referral issued by Armidale Hospital on 9 February 2011 as follows:
“2008 September – chest infection – pseudomonas cultured – settled
2009 – Developed SVT – T/F to St Vincents – had ventricular outflow ectopic beats – started on flecainide – shortly after – developed SOB again – was started on seretide and tiotropium by Dr Baker.
Was reviewed by Dr Peter Wark at the JHH and diagnosed with bronchiectasis with pseudomonas infection, and neutrophilic bronchitis. Was started on tobramicin and ciprofloxacin, but this was ceased in December due to worsening renal function.”
Ms Turnbull returned to work in September, or early October 2009, performing duties in the maternity departments of Armidale and Tamworth hospitals. She again developed a chest infection. Pseudomonas was again cultured and antibiotic treatment was given. Between October 2009 and March 2010, Ms Turnbull was absent from work for approximately 12 weeks by reason of recurrent infection. Ms Turnbull went off work on 18 March 2010 and has not returned to work for the appellant since.
Ms Turnbull consulted Associate Professor Peter Wark, specialist respiratory and sleep medicine in September 2010. Associate Professor Wark’s report, dated 31 March 2011, records that a CT scan of Ms Turnbull’s chest conducted in 2010 “showed evidence [of] significant bronchiectasis, particularly involving the right lower lobe, associated with small airways disease and considerable mucus plugging”.
Associate Professor Wark’s report included the following diagnosis:
“[Ms Turnbull] has evidence of chronic allergic airways disease now complicated by a chronic sinusitis and bronchiectasis with evidence of mild airflow obstruction and mild airway reactivity. The presence of both the chronic sinusitis the (sic, and the) previous pseudomonas infection have all lead to significant symptoms of cough, sputum production and exercise limitation. Unfortunately the presence of these disorders lead her to be at high risk of future exacerbations of her airways disease and will increase a risk in decline in lung function.”
There is in evidence a report from Dr Gregory Kaufman, respiratory physician and allergist dated 19 October 2011. Dr Kaufman had been qualified to provide an opinion for the purposes of this litigation.
Dr Kaufman prefaced his report by noting that “the bacterial organism Pseudomonas is a common pathogen growing in the airways of patients with irreversible structural abnormalities of their airways, eg bronchiectasis”. Dr Kaufman noted that Ms Turnbull gave a history that she recalled having cared for several patients “in early 2006, just before she became unwell, who grew pseudomonas in their sputum”.
Dr Kaufman expressed the opinion that Ms Turnbull suffered from asthma and also a mild degree of bronchiectasis. That last condition could, in Dr Kaufman’s opinion, “account for recurrent cough with purulent sputum production”.
Dr Kaufman was asked to provide an opinion concerning any relationship between the “condition found on examination and the injury sustained in the accident”. Dr Kaufman took “the accident” to mean the infective bronchitis suffered in 2006. It was his view concerning that infection that it was “more likely than not that the pseudomonas organisms grown from her sputum and nasal secretions, were the result of inhaling organisms coughed up by patients she had encountered”. Dr Kaufman’s reasons for so concluding are addressed below.
Dr Kaufman proceeded to note that a CT scan had been reported to show structural airway abnormalities which he identified as bronchiectasis. He further noted that the symptom characteristics of bronchiectasis are “cough and sputum production”. He also stated that:

“Although a precise time for the development of the permanent injury to the airway walls, that defines bronchiectasis, cannot be made, it is reasonable to attribute this to the respiratory infection starting in April 2006”.

Dr Kaufman expressed the view that determining the cause for Ms Turnbull’s asthma presented difficulties. The view is expressed that “the events of April 2006 cannot be considered the cause for the asthma”.
A second report prepared by Dr Kaufman, dated 19 February 2014, made reference to the CT report which suggested the presence of bronchiectasis. Dr Kaufman acknowledged that he had not seen the CT scan, but had relied upon the radiologist’s reports. He stated:
“As bronchiectasis is due to scarring of the airway wall, improvement or resolution of bronchiectasis does not occur. It is therefore reasonable to assume that bronchiectasis is present and that this predisposes to the infective exacerbations described in the body of the report.”
Dr Kaufman had earlier in this report recorded a history of episodes of heavy productive cough of which there had been four such episodes during 2013. Treatment required administration of antibiotics and a short course of oral corticosteroids.
The respondent relied upon evidence extracted from its records which demonstrate that the patients nominated by Ms Turnbull as being patients at the time of her infection in 2006, were not in fact admitted as patients with respiratory difficulties at the relevant time.
The appellant tendered a report of Dr Paul Bartley, infectious diseases consultant physician, dated 10 May 2011. That report was addressed to Dr Haron. Dr Haron had referred Ms Turnbull to Dr Bartley for review of her complaints of chest infections and episodes of acute sinusitis. Dr Bartley noted that Ms Turnbull reported that she had acquired pseudomonas aeruginosa by reason of her close contact with respiratory patients in the course of her work. Dr Bartley expressed the following opinion in relation to the suggested nexus between work conditions and Ms Turnbull’s respiratory difficulties:
“In summary, I believe the hypothesis of occupationally-acquired Pseudomonas lower respiratory tract infection would be almost impossible to prove. Pseudomonas aeruginosa is an ubiquitous, environmental organism. Without sophisticated and robust molecular epidemiological methods such as either RFLP analysis or PFGE, then demonstrating genetic identity between her respiratory Pseudomonas isolates and those of her patients, and also demonstrating lack of genetic identity with contemporary environmental Pseudomonads; then this case would be impossible to support. I have counselled Catherine gently but directly and suggested that perhaps this would be a futile track to pursue.”
The appellant tendered a copy of a pamphlet concerning “Infection Control Droplet Precautions” dated February 2007. That pamphlet set out details concerning standard precautions to reduce risk of infection of staff that had the care of patients with diagnosed or presumed infectious conditions.
A statement by Ann McCormack dated 12 September 2012 was tendered by the appellant. Ms McCormack was at relevant times employed by the appellant as a registered nurse at Glen Innes District Hospital. Ms McCormack worked with Ms Turnbull and was her direct supervisor. Ms McCormack stated that:
“There were patients in the hospital on the first floor at Glen Innes Hospital that did suffer from pseudomonas, but I am not aware of what year that was. They would have been isolated after their pathology came back and they were diagnosed. They would have been in the ward with other people until such times as that pathology came back.”
Ms McCormack stated that Ms Turnbull would have been aware of the infection suffered by those patients and “she would be aware of the safety precautions required”.
The statement of Ms Jones referred to above includes some detail of Ms Turnbull’s duties with the appellant up to the date of termination of employment in 2012.

Submissions before the Arbitrator

It was argued on behalf of Ms Turnbull that the lay evidence, including that of Ms Egan, corroborated Ms Turnbull’s evidence concerning the presence, at the appellant’s hospital, of patients suffering from respiratory problems who were known to have pseudomonas. The evidence established, it was argued, that patients with such infection were not isolated until after pathology tests became available. It was put that, applying common sense, the issue of exposure to infection is established by that evidence. The expert medical evidence, including that of Dr Kaufman, provides a basis for concluding that the infection suffered in 2006 and the diagnosis of bronchiectasis, were each casually related to exposure to the infected patients in the course of Ms Turnbull’s employment.
It was further argued that, notwithstanding the evidence of Dr Bartley as to the suggestion of the impossibility to support a causal association between the presence of infected patients and Ms Turnbull’s diagnosed condition in 2006, the proper test as to causation was satisfied, having regard to the evidence of Dr Kaufman, found in his report dated 19 February 2014.
It was argued on behalf of the appellant that the evidence established that the patients identified in Ms Turnbull’s case as being “pseudomonas sufferers” were not present at the Glen Innes Hospital in the months leading up to the development of Ms Turnbull’s chest infection. It was argued that the factual basis of Dr Kaufman’s opinion is not made out. The thrust of argument, as advanced, was that the “factual scenario of the exposure has not been established”.
The appellant’s counsel further argued that Ms Turnbull’s recurrent chest infections had not been “adequately explained by the general medical evidence … as being consequent upon the initial infection”. It was put that many of the subsequent chest infections occurred at times “outside the time frame that [Ms Turnbull] worked in the respiratory unit”.
The evidence, it was put, does not support a conclusion that the bronchiectasis, diagnosed in 2010, was causally related to the infection which occurred in 2006. It was argued that Dr Kaufman’s evidence concerning the causal nexus between the infection and the condition, diagnosed as bronchiectasis, is not supported by any “plausible reasoning”.
Counsel for Ms Turnbull, in reply, argued that the evidence of Dr Kaufman provided sufficient evidence of the “link” between the 2006 infection, the development of bronchiectasis and the recurrent infections. It was further argued that the evidence of Dr Bartley does not address the correct test. Dr Bartley’s evidence appears, it was put, to be addressing a question of “scientific certainty” whereas the onus upon Ms Turnbull was to establish causation on the balance of probabilities.

The Arbitrator’s Decision

The Arbitrator’s Reasons for his decision are recorded between T41 and T48. It was noted by the Arbitrator that, notwithstanding the matters raised in the s 74 notice issued by the appellant, the substantive dispute concerned the occurrence of injury as alleged, as well as the question whether employment was a substantial contributing factor to the injury in terms of s 9A of the 1987 Act.
The Arbitrator proceeded to summarise the lay and expert medical evidence. It was noted by the Arbitrator that the relevant investigative scans demonstrated that Ms Turnbull suffers from bronchiectasis and he proceeded to state (at T43) that “…the question is, on the balance of probabilities, whether or not [Ms Turnbull] suffered injury by infective process which more probably than not occurred by reason of her employment with [the appellant], in or about February 2006”.
It was noted by the Arbitrator that it was common ground among the medical experts who addressed the question, that a conclusion as to the occurrence of infection in 2006 could not, as a matter of scientific certainty, be reached on the material available.
That circumstance was stated plainly by Dr Bartley with which Dr Kaufman agreed. The Arbitrator observed that, to succeed, Ms Turnbull needed to satisfy the Commission that the infection alleged was “at least a possibility medically” and that the balance of the evidence, as discussed by Spigelman CJ in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 (McGuiness), would “justify inference of probable connection”. The Arbitrator proceeded to make the following finding (at T46–47):
“In my view, adopting the commonsense approach adumbrated in the cases and particularly by Kirby P as he then was in Kooragang [Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796] , it is more probable than not that [Ms Turnbull], working as a Clinical Nurse Specialist in respiratory medicine with many sick patients as described by Dr Kaufman and [Ms Turnbull] and by lay witnesses in relation to [Ms Turnbull’s] work, strongly comes down to, in my view, as being the more likely explanation for [Ms Turnbull’s] contraction of the pseudomonas infection and leading to bronchiectasis as explained by Dr Kaufman and by Professor Wark and by the applicant’s general practitioner.”
The Arbitrator proceeded to make the following formal findings (at T47):
“I therefore find that [Ms Turnbull] has suffered an injury arising out of and in the course of her employment with the respondent and given the nature of [Ms Turnbull’s] employment, I am satisfied that the employment is a substantial contributing factor to that injury.”

SUBMISSIONS, DISCUSSION AND FINDINGS

This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”
The grounds relied upon by the appellant have been noted at [13] above. The appellant expressly states that the grounds enumerated demonstrate “error of law”. So far as grounds one and two are concerned, each error concerns a suggested insufficiency of evidence to permit particular findings of fact. Thus the Commission is here considering a suggested error of law by reason of insufficiency of evidence, as was considered by Glass JA in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 (at 155–156).

Ground one

Ground one suggests error of the Arbitrator in finding “that the pseudomonas bacteria tested to be present in 2006, was as a result of the nature of the work” performed by Ms Turnbull with the appellant. The appellant argues that there is insufficient evidence to support that finding.
Submissions put in support of this ground assert that Ms Turnbull “nominated several patients who she alleged were known carriers of the pseudomonas bacteria”. No doubt that is a reference to the evidence in her case of Ms Egan which is noted above at [20]. Ms Turnbull’s evidence concerning this subject was that, in February 2006, “we had two patients with pseudomonas infection at Glen Innes Hospital”. Ms Turnbull does not identify those patients in her statement.
It is correct, as argued by the appellant, that there is some evidence that the patients named by Ms Egan were not admitted with respiratory symptoms at the relevant time, being February 2006 (see copy of correspondence from the appellant to Ms Turnbull’s solicitors dated 14 January 2014).
It must be noted that the Arbitrator did not found his factual conclusion concerning injury upon evidence concerning Ms Turnbull’s exposure to a particular patient. It is clear, having regard to his Reasons as noted at [48] above, that the exposure inculpated in his finding was that which occurred whilst Ms Turnbull was “working as a Clinical Nurse Specialist in respiratory medicine with many sick patients as described by Dr Kaufman, and [Ms Turnbull] and by lay witnesses…”. The evidence of Ms Egan is not limited to an assertion that the only exposure experienced by Ms Turnbull was that during treatment of the four named chronically ill patients. It is clear from the Arbitrator’s Reasons (at T42) that amongst the lay witnesses, he had placed reliance upon the evidence of Ms McCormack, Ms Turnbull’s supervisor. Ms McCormack confirmed, in her statement, that patients with respiratory problems “would not be identified necessarily as suffering from a pseudomonas infection for at least five days when the pathology test results came back”.
The Arbitrator had earlier noted that before suffering the relevant infection, Ms Turnbull had been employed as a clinical nurse specialist “in respiratory medicine and she found herself caring for patients with respiratory illnesses every day at work”. It is clear that the Arbitrator had accepted the lay evidence summarised by him. It was a matter for the Arbitrator to determine the weight, if any, to be attached to that and other evidence before him.
Having accepted that Ms Turnbull was regularly treating patients with respiratory difficulties, the Arbitrator then (at T43) turned his attention to the expert medical evidence. The history taken by Dr Haron was that Ms Turnbull “had been working closely with a number of in-patients with pseudomonas respiratory infections” immediately before her consultation in March 2006. The Arbitrator also noted that in Dr Haron’s report it was recorded by way of history that Ms Turnbull had been “involved in respiratory rehabilitation and education for a number of years, so she had significant exposure at [sic] a large number of patients with chronic respiratory disease and infection”.
Dr Haron, in his report dated 18 January 2011, stated, “I agree that the history given was consistent with the condition diagnosed”. It must also be noted that the initial WorkCover NSW Medical Certificate issued by Dr Haron, described the manner in which the “injury occurred” as “nursing chronic respiratory patients”.
In reaching his conclusion concerning injury (pseudomonas infection) the Arbitrator also had regard to the evidence of Dr Kaufman and Associate Professor Wark. The Arbitrator acknowledged the evidence of those two experts, that “it is not possible to demonstrate an exact genetic match between pseudomonas grown from Ms Turnbull’s sputum and that from her patients”. It is clear that when assessing the evidence before the Commission, the Arbitrator had regard to the views expressed by Dr Bartley that it would be “almost impossible to prove” the hypothesis of occupationally-acquired pseudomonas lower respiratory tract infection.
The Arbitrator’s reasoning demonstrates, in my opinion, that he has adopted the correct approach when evaluating the evidence concerning the probability or otherwise, of Ms Turnbull’s infection having arisen out of or in the course of her employment. As stated by the Arbitrator, it was not incumbent upon Ms Turnbull to prove with scientific certainty that the infection was so caused, but rather to establish on the probabilities that such was the case.
The Arbitrator’s evaluation of the evidence included a consideration of relevant authority concerning proof of causation where the only evidence relevant to the issue is circumstantial. It is the case that the evidence relied upon by Ms Turnbull is entirely circumstantial, there being no direct evidence before the Commission as to the transmission, in fact, of infection from the patients being treated. The appellant argues that:
“the evidence does not establish that on the balance of probabilities, [Ms Turnbull’s] respiratory infection and subsequent presence of pseudomonas bacteria (an air borne bacteria), in the sputum in April 2006, was contracted in the course of employment.”
One of the authorities referred to by the Arbitrator in the course of his Reasons was that of McGuiness. It was there stated by Spigelman CJ (at [153]):
“… a circumstantial case can involve drawing a conclusion on the balance of probabilities, or indeed beyond reasonable doubt, on the basis of facts which are expressed only in terms of possibility. Whether or not the inference is open or should be drawn, depends on the quality of the underlying facts, particularly in terms of the degree of ‘possibility’ which is involved.”
It is clear that the Arbitrator has accepted the evidence of Dr Kaufman concerning the causal nexus between exposure to infection at work and Ms Turnbull’s pseudomonas infection. Included among the reasons stated for his views, Dr Kaufman stated:
“It is worth noting, that in community pseudomonas pneumonia sufferers, there is a higher incidence amongst those individuals who had been fairly recently hospitalised. The logical explanation being that they had a higher level of exposure than non-hospitalised individuals, presumably because there were patients in hospitals who were being treated for Pseudomonas respiratory infections.”
It is also clear that the Arbitrator has treated that statement by Dr Kaufman, and his other evidence, as evidence of the degree of “possibility” as mentioned by Spigelman CJ in McGuiness. That evidence, together with the lay evidence, had satisfied the Arbitrator as to the probable causal nexus. The appellant’s complaint made in this ground concerning insufficiency of evidence must be rejected.

Ground two

Ground two suggests error on the part of the Arbitrator “in determining that there was sufficient evidence to establish that the bronchiectasis diagnosed in 2010 resulted from the pseudomonas bacteria tested to be present in 2006”.
The Arbitrator’s finding concerning causation of bronchiectasis was, as noted at [48] above, that Ms Turnbull’s contraction of the pseudomonas in 2006 had led to the bronchiectasis. The appellant is correct to submit that Dr Kaufman was the only expert medical witness to express an opinion concerning the relationship between the 2006 infection and the development of bronchiectasis. I note in passing that the finding as to causation of the bronchiectasis is of importance given Dr Kaufman’s method of assessing whole person impairment as appears at page eight of his report dated 19 October 2011. That finding is also of importance given Dr Kaufman’s opinion, which appears to have been accepted by the Arbitrator, that the condition of bronchiectasis “could account for recurrent cough with purulent sputum production”.
The appellant’s argument concerning the sufficiency of the evidence raises those issues which were considered by the Court of Appeal in Fernandez v Tubemakers of Australia Ltd (1975) 2 NSWLR 190 (Fernandez). As stated by Glass JA in Fernandez, the question for the Court was “whether evidence was adduced capable of establishing as a matter of probability that the condition of the plaintiff’s hand (diagnosed as Dupuytren’s contracture) which existed in 1971 was caused by [trauma earlier in that year]”. His Honour proceeded to state the following (at 197):
“The issue of causation involves a question of fact upon which opinion evidence, provided it is expert, is receivable. But a finding of causal connection may be open without any medical evidence at all to support it: Nicolia v Commissioner for Railways (NSW) (1970) 45 ALJR 465 or when the expert evidence does not rise above the opinion that a causal connection is possible: E.M.I. (Australia) Ltd v Bes [1970] 2 NSWR 238. The evidence will be sufficient if, but only if, the materials offered justify an inference of probable connection. This is the only principle of law. Whether its requirements are met depends upon the evaluation of the evidence.”
The evidence relevant to the issue of causation of bronchiectasis is scant, however Dr Kaufman’s report includes the statement noted at [29] above. Dr Kaufman’s reasons for so concluding appear to include:
(a)     the symptom characteristics of bronchiectasis are cough and sputum production;
(b)     Ms Turnbull had been complaining of such symptoms since the 2006 infection, and
(c)     prior to 2006, Ms Turnbull had not had any significant lower respiratory tract symptoms.
The question raised by the appellant is whether, as stated by Glass JA, that evidence is of such a character as to “justify an inference of probable connection”.
Dr Kaufman’s evidence establishes, in my opinion, more than a mere possibility of there being a causal nexus between infection and the bronchiectasis. That practitioner accepts as being reasonable, an inference that such causal nexus exists. Dr Kaufman’s reasons for holding that opinion have been stated. The Arbitrator has accepted that evidence and drawn the inference as to causation. It cannot be said that the Arbitrator’s conclusion was mere speculation. The appellant’s argument suggesting error of law by reason of insufficiency of evidence with respect to this finding must be rejected.

Ground three

The appellant’s complaint in ground three concerns suggested error of law in failing to “take into account all of [the] evidence before the Commission in assessing the issue of causation”. The submissions made in support of this ground make it reasonably clear that the “causation” issue is that concerning the causal nexus found by the Arbitrator between the 2006 infection and the subsequent diagnosis of bronchiectasis. Having noted that, it must be said that the submissions tend to revert to argument concerning the sufficiency of the evidence addressed in relation to ground one.
The appellant draws attention to the evidence concerning the diagnosis of “sinus infections” before 2006 and respiratory infections recorded in 2007, 2008 and 2009. Those matters, and Ms Turnbull’s diagnosis and treatment of asthma in 2010, are said to be matters relevant to “causation” which have not been addressed by the Arbitrator.
There can be no doubt, on the evidence, that Ms Turnbull had been treated in the 1960s and 1970s in respect of allergic rhinitis. Polypectomy was conducted. It is also clear that Ms Turnbull has, since 2006, suffered from allergic rhinitis and sinusitis. The evidence establishes that Ms Turnbull has suffered from asthma for many years. Those matters are recorded in various reports provided by the medical experts, whose evidence was acknowledged by the Arbitrator as having been “taken into account” in reaching his conclusions concerning the dispute (at T41).
Whilst the medical history of Ms Turnbull was the subject of detailed summary in the course of argument before the Arbitrator, one submission made concerning that evidence was that “the asthma is not implicated in anything that is compensable before the Commission”. That matter was not in contention, and was plainly addressed by Dr Kaufman in his report dated 19 October 2011. Whilst reference was made by counsel to the evidence of Dr Bartley concerning this history, that practitioner’s evidence does not provide reasoning in support of the appellant’s argument which was summarised by counsel as follows (at T25):
“The recurrent chest infections, in my submission, have not been adequately explained by the general medical evidence in the case as being consequent upon the initial infection and certainly many of those chest infections in subsequent periods occurred outside the timeframe that [Ms Turnbull] worked in the respiratory unit.”
The difficulty with the arguments advanced with respect to this ground, which repeat matters put before the Arbitrator, is that there is no expert medical evidence which supports the appellant’s assertions concerning the relevance of those other medical conditions. By way of illustration, the argument is put on this appeal that “it is of profound significance that [Ms Turnbull] experienced a substantial worsening of her asthma condition in 2010”. The fact of worsening was not in dispute. None of the medical evidence cited in a footnote to that proposition is in any way supportive of the suggestion that the asthma was causally, or otherwise, relevant to the matters in dispute.

In my view the Arbitrator has addressed those matters raised in argument as he was bound to do (see Haris v Bulldogs Rugby League Club Ltd [2006] NSWCA 53 per Santow JA at [121]). The appellant has failed to make out any relevant error. Ground three must be rejected.

CONCLUSION

The appeal fails and appropriate orders appear below.

DECISION

The Arbitrator’s findings and orders as recorded in the Certificate of Determination dated 16 June 2014 are confirmed.

COSTS

The appellant is to pay Ms Turnbull’s costs of the appeal.

Kevin O'Grady
Deputy President

10 September 2014

I, JACQUELINE HAGGER, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE