Walmsley v Adventist Health Care Limited
[2022] NSWPIC 612
•3 November 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Walmsley v Adventist Health Care Limited [2022] NSWPIC 612 |
| APPLICANT: | Patricia Walmsley |
| RESPONDENT: | Adventist Health Care Limited |
Member: | John Isaksen |
| DATE OF DECISION: | 3 November 2022 |
CATCHWORDS: | WORKERS COMPENSATION - Claim for weekly payments for two and a half weeks when worker was incapacitated due to COVID-19; worker is employed as a registered nurse and seeks the benefit of section 19B of the Workers Compensation Act 1987 (1987 Act); respondent provides expert evidence to reverse the presumption in favour of the worker which she is afforded by section 19B of the 1987 Act; Held – respondent is not able on the available evidence to reverse the presumption in favour of the worker; award of weekly payments for the period claimed. |
| determinations made: | 1. The respondent is to pay the applicant $1,274.70 per week from 10 February 2022 to 28 February 2022 pursuant to s 36 (1) of the Workers Compensation Act 1987 (the 1987 Act). |
Background
The applicant in these proceedings, Patricia Walmsley, is employed on a part time basis as a registered nurse with the respondent, Adventist Health Care Limited.
The applicant tested positive to COVID-19 on 10 February 2022 following a polymerase chain reaction (PCR) test.
The applicant was not able to return to work until 1 March 2022 due to having a persistent cough.
The applicant claims weekly payments of compensation as a result of having no current work capacity from 10 February 2022 to 28 February 2022.
The applicant relies upon the provisions of s 19B of the 1987 Act.
The respondent has issued dispute notices dated 7 March 2022 and 1 July 2022 wherein it disputes liability on the basis that the applicant’s covid diagnosis does not relate to her workplace or employment.
Issue in dispute
Whether the applicant obtains the benefit of s 19B of the 1987 Act and is entitled to weekly payments of compensation for the period from 10 February 2022 to 28 February 2022.
The relevant legislation
Section 19B of the 1987 Act relevantly provides:
“19B PRESUMPTIONS RELATING TO CERTAIN EMPLOYMENT IN RELATION TO COVID-19
(1) If a worker, during a time when the worker is engaged in prescribed employment, contracts the disease COVID-19 (also known as Novel Coronavirus 2019), then for the purposes of this Act, it is presumed (unless the contrary is established)--
(a) that the disease was contracted by the worker in the course of the employment, and
(b) the employment—
(i) in the case of a person to whom clause 25 of Part 19H of Schedule 6 applies--was a substantial contributing factor to contracting the disease, or
(ii) in any other case--was the main contributing factor to contracting the disease.
(2) A worker is taken to have contracted COVID-19 for the purposes of this Act if the result of a medical test—
(a) that complies with requirements prescribed by the regulations in relation to the disease, and
(b) that was carried out for the purpose of determining if the worker has contracted the disease,
is a result prescribed by the regulations in respect of the disease.
(3) A worker is taken to have contracted COVID-19 for the purposes of this Act if the worker is classified by a medical practitioner as having COVID-19, having satisfied the epidemiological or clinical criteria (or both) prescribed by the regulations for the purpose of making that classification.
(4) For the purposes of this Act, the date of the injury in relation to COVID-19 is the date of whichever of the following occurs first—
(a) the worker is diagnosed by a medical practitioner as having COVID-19 following a prescribed test result, as referred to in subsection (2),
(b) the worker is classified by a medical practitioner as having COVID-19, as referred to in subsection (3),
(c) the worker dies as a result of COVID-19.
(5) For the purposes of this Act, it is presumed (unless the contrary is established) that a worker the subject of a presumption under subsection (1) is incapable of work as a result of COVID-19 for the period starting on the date of the injury and ending (unless sooner ended by the death of the worker)—
(a) on a date established in accordance with the regulations, or
(b) if no regulations are made under paragraph (a)--on a date that is 7 days after the date on which a medical practitioner certifies that the worker no longer has the disease.
……
(9) In this section--
‘prescribed employment’ means employment in any of the following--(a) ……..
(b) the health care sector, including ambulance officers and public health employees,
(c) ……”
The evidence
The following documents were in evidence before the Personal Injury Commission (the Commission) and considered in making this determination:
(a) Application for Expedited Assessment and attached documents;
(b) Reply and attached documents, and
(c) Application to Admit Late Documents filed by the respondent on
14 October 2022.
Procedure before the Commission
This matter was listed for video conference on 24 October 2022 and submissions were made and recorded by both parties to the dispute.
Mr Gaitanis appeared for the applicant, instructed by Ms Bates. Mr Combe appeared for the respondent instructed by Ms Petrolo.
It was agreed that the applicant’s pre-injury average weekly earnings (PIAWE) were $1,341.80.
The applicant’s evidence
The applicant has provided a statement dated 31 August 2022.
The applicant states that since August 2016 she has been working 20 hours per week as a registered nurse at the San Day Surgery Hornsby (‘SDSH’), which is owned by the respondent. She states that her first day of work for the new year of 2022 was on
11 January 2022.The applicant states that SDSH is a small facility with two theatres. She states that she works in many areas including admissions, recovery and the discharge lounge. She states that she is the ‘dog’s body’ of the facility.
The applicant states that her interaction with patients includes the following:
(a) escort patients into the discharge lounge and help them get off a trolley and into a recliner chair;
(b) strip and handle linen from a trolley;
(c) empty garbage and waste;
(d) clean chairs and other places which have been occupied by a patient, and
(e) providing food to patients without the assistance of kitchen staff.
The applicant states that patients were required to complete a rapid antigen (RAT) before being admitted to SDSH. She states that these tests were to be conducted by the patient at their home, unless the patient forgot to do it and it was done on admission.
The applicant states that in addition to working closely with patients, she was in close contact with another registered nurse who she understands tested positive to covid on 12 January 2022. She states that this nurse worked closely with the applicant in the handover from theatre to recovery. The applicant states that the nurse sent the applicant a text message on 12 January 2022 to say that she and her daughter had tested positive.
The applicant states that she was able to do a RAT on the evening of 14 January 2022 and that the test was negative.
The applicant states that she was not well at the time she took the RAT and had not been well since had a Astra Zeneca vaccination. She states that she continued to have a persistent runny nose, cough and chest pain.
The applicant states that she continued to work until Thursday 27 January 2022. She states that her son experienced significant chest pains on Monday 31 January 2022 and she took him to Hornsby Hospital, but she did not go into the hospital herself.
The applicant states that she was supposed to work on 1 February 2022, but she could not take up the shift because her son had tested positive to covid. She states that her daughter and husband then tested positive to covid.
The applicant states that she tested positive to COVID-19 on 10 February 2022 following a PCR test. She states that her “symptoms had essentially remained the same throughout”.
The applicant states that she continued to have a cough after the mandatory period of isolation and was not cleared to go back to work until 1 March 2022.
The respondent’s evidence
Therese Neville has provided a statement dated 7 October 2022. Ms Neville states that she is employed as a rehabilitation coordinator with the respondent. She states that she has never met Ms Walmsley in person.
Ms Neville states that another registered nurse advised the respondent on
12 January 2022 that she had tested positive to covid. She states that this nurse did not return to work until 24 January 2022, after the employee had registered a negative RAT.Ms Neville states that the applicant was not identified as a high risk contact from this employee, and that she believes the applicant returned to work on 18 January 2022 after providing a negative RAT. She states that none of the employee’s co-workers tested positive to covid.
Ms Neville states that the applicant’s last day of work prior to the applicant testing positive for covid was 27 January 2022.
Ms Neville states that there were no other staff members who tested positive to covid in January 2022 except for the employee she has referred to in her statement. She states that there was another employee whose son tested positive, but not the employee.
Ms Neville states that during the period from 10 January 2022, when SDSH re-opened after Christmas, there were no known covid positive patients through the day surgery.
There is an email in the Application from Ms Neville dated 28 February 2022 which states:
“There were 2 staff members that tested positive some time earlier in January. The surgery was closed over Christmas until 10th January. One staff member did not return until 31.1.22 as they tested positive prior to the surgery re-opening. The other staff member tested positive on 18.1.22 and returned to work on 25.1.22. This staff member works in theatres and Patricia works in recovery so unlikely to have crossed paths. And Patricia did not test positive until 10.2.22.”
The medical evidence
Dr Flecknoe-Brown, consultant physician and clinical pathologist, has provided a report at the request of the respondent dated 13 October 2022.
Dr Flecknoe-Brown attaches a copy of the National Guidelines for Public Health Units on COVID-19 dated September 2022, issued by the Communicable Diseases Network of Australia (CDNA). He writes that the Guidelines refer to an incubation period for the variants of the predominant strain of COVID-19 between December 2021 and
March 2022 (being Omicron) of an average of three days, with a range of 0-10 days.Dr Flecknoe-Brown refers to the statement provided by the applicant and concludes that, on the balance of probabilities, the applicant did not contract COVID-19 at work because her last day of work was 27 January 2022 and she did not test positive for infection until
10 February 2022, which was some 14 days later.Dr Flecknoe-Brown concludes:
“Caring for three family members with the disease is, more likely than not, the source of her infection. Although it is technically possible to isolate within a household, the procedures did not prevent her son and subsequently her daughter from acquiring COVID-19 after her husband had been infected. In addition, the period between 1 and 10 February is within the accepted incubation period for the B.1.1.529 Omicron variant of COVID-19.”
A short summary of submissions by the parties
Mr Combe for the respondent submits that the determination of this dispute must be based on expert scientific evidence, and the decision maker should not call upon or revert to personal experience of COVID-19 when making a determination of this dispute.
Mr Combe submits that the expert evidence supports a finding that the most likely cause of the applicant contracting COVID-19 was when she was caring for her son and then her daughter and husband because the period during which she provided that care was within the incubation period for her own contraction of the disease on 10 February 2022. He submits that this expert evidence, which is made on the balance of probabilities, is sufficient to reverse the onus placed on the respondent by the provisions of s 19B of the 1987 Act.
Mr Gaitanis for the applicant submits that COVID-19 is a complex phenomenon which cannot be restricted to an exact scientific analysis undertaken by Dr Flecknoe-Brown.
Mr Gaitanis submits that Dr Flecknoe-Brown has not considered other possible causes for the applicant contracting COVID-19, including that it came from exposure or contact with patients at SDSH.
Decision
Section 19B of the 1987 Act provides that if a worker engaged in prescribed employment, which includes the health care sector, contracts the disease COVID-19, then it is presumed that the disease was contracted in the course of employment unless the contrary is established.
The dispute notices issued on behalf of the respondent and the expert evidence relied upon by the respondent addresses the potential exposure of the applicant to fellow employees, but they do not address whether the applicant might have contracted the disease from a patient attending SDSH.
The issue of whether the applicant might have contracted the disease from a patient attending SDSH between 11 January 2022 and 27 January 2022 is made even more pertinent because of the applicant’s evidence, which is not challenged by any evidence from the respondent, that patients were allowed to be admitted to SDSH so long as they returned a negative RAT. There are a couple of reasons as to why this means that there was a real possibility of the applicant contracting COVID-19 in the course of her employment.
Firstly, the respondent did not insist upon a patient providing evidence of a positive PCR test for admission to SDSH, which is a more reliable test for COVID-19. It is stated in the National Guidelines for Public Health Units on COVID-19 dated September 2022, which is included in the Reply, that the sensitivity of a RAT is inherently lower than a PCR. Part 5 of the Guidelines states:
“Rapid antigen tests (RATs) are an alternative testing method that can be self-administered and provide fast results following the collection of a respiratory sample. RAT sensitivity is inherently lower than NAAT. Performance of different RATs can vary from test to test and depend on the VOC and the prevalence of infection in the community.”
NAAT is “nucleic acid amplification testing”, which the Guidelines state is the “gold standard” for diagnosing symptomatic SARS-CoV-2 infection. The Guidelines state that NAAT should be prioritised in several situations including:
“for those at risk of exposing people at high-risk of severe disease including those who live or work in a high-risk setting”
Secondly, the admission of a patient to SDSH was contingent upon their truthfulness that they had returned a negative RAT. The respondent had no independent or alternative means of checking if a patient might be covid positive.
Ms Neville states that during the period from 10 January 2022 there were no known covid positive patients through the day surgery, but that conclusion is based upon a less than ideal system for monitoring the disease from incoming patients as set out in the National Guidelines for Public Health Units on COVID-19 dated September 2022.
There is also no evidence that there was any checking up by the respondent following a patient’s discharge from SDSH to enquire if a patient might have recently acquired COVID-19.
Mr Combe submits that the applicant did not have COVID-19 symptoms for 10 days after the other employee advised that she had tested positive for covid. However, the applicant states that she had a runny nose, cough and chest pain from at least 14 January 2022, when she took a RAT, until 10 February 2022, when she tested positive from a PCR test.
There is no expert evidence on the question of whether the symptoms which the applicant complained of throughout most of January 2022 and up until 10 February 2022 could be due to both a vaccination (which the applicant attributes her initial symptoms to) and the contraction of COVID-19 during that same period.
There is also no expert evidence as to how long the applicant could have retained traces of the COVID-19 infection and remained symptomatic once she had become infected. The incubation period might have a range of 0-10 days, which on Dr Flecknoe-Brown’s analysis places the applicant outside of any time she was working for the respondent, but there remains the possibility that the applicant contracted the disease while she was working for the respondent and that she still retained traces of COVID-19 when she ultimately underwent a PCR test on 10 February 2022.
The respondent bears the onus of establishing a contrary position which reverses the presumption made in favour of the worker as provided for by s 19B of the 1987 Act. The respondent only relies upon one possible cause for the applicant contracting COVID-19 and without considering the real possibility that the applicant contracted the disease due to exposure to patients at SDSH. One possible theory provided by Dr Flecknoe-Brown, even if is stated to be on the balance of probabilities, does not reverse the presumption in favour of the applicant when there are other possible causes for the applicant’s contraction of the disease which have not been addressed by Dr Flecknoe-Brown at all.
I also do not agree with a submission made by Mr Combe that the applicant’s case is directed towards her being exposed to a co-worker who had covid in mid-January. The applicant does spend some time in her statement addressing her exposure to this
co-worker, but that is in response to the dispute notices which rely on this aspect of the applicant’s employment to deny liability. Furthermore, it is not for the applicant to prove how she came to contract the disease, but rather for the respondent to reverse the presumption provided for in s 19B.For the reasons I have given, I do not consider that the respondent has reversed the presumption which favours the applicant in s 19B of the 1987 Act. There will be an award of weekly payments of compensation for the period from 10 February 2022 to 28 February 2022 at the rate of $1,274.70 per week, being 95% of agreed PIAWE, pursuant to s 36 (1) of the 1987 Act.
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