Woolfe v State of Tasmania
[2000] TASSC 122
•31 August 2000
[2000] TASSC 122
CITATION: Woolfe v State of Tasmania [2000] TASSC 122
PARTIES: WOOLFE, Robyn Jennifer
v
STATE OF TASMANIA
(DEPARTMENT OF HEALTH & HUMAN SERVICES)
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 14/2000
DELIVERED ON: 31 August 2000
DELIVERED AT: Hobart
HEARING DATE: 14 August 2000
JUDGMENT OF: Underwood J
CATCHWORDS:
Workers Compensation - Sufficiency of evidence and onus of proof - Particular accidents and diseases - Skin diseases and infections - Dermatitis suffered at work but not incapacitating - Subsequent incapacity due to entry of organism into broken skin - Injury being a disease not arising out of and in the course of employment.
Attorney-General (Tas) v Smith A35/1994; Smith v Attorney-General (1994) 4 Tas R 298, followed.
Aust Dig Workers Compensation [81]
REPRESENTATION:
Counsel:
Appellant: D G Grey
Respondent: P Turner
Solicitors:
Appellant: Zeeman Kable & Page
Respondent: Director of Public Prosecutions
Judgment Number: [2000] TASSC 122
Number of Paragraphs: 16
Serial No 122/2000
File No LCA 14/2000
ROBYN JENNIFER WOOLFE v STATE OF TASMANIA
(DEPARTMENT OF HEALTH & HUMAN SERVICES)
REASONS FOR JUDGMENT UNDERWOOD J
31 August 2000
The appellant was a nurse employed at the Launceston General Hospital. She made a claim for compensation. It was disputed. The dispute was based upon the proposition that any incapacity for work that the appellant may have had, and any medical expenses that she may have incurred, did not result from an injury which was a disease within the meaning of the Workers Rehabilitation and Compensation Act 1988 ("the Act"), s25(1)(b).
This issue went to the Workers Rehabilitation and Compensation Tribunal ("the Tribunal") for determination. By order dated 1 May 2000, the appellant's application for compensation was dismissed. The Tribunal based the order of dismissal upon a finding it made that although the appellant had suffered an injury, being a disease, the appellant had not established that this injury had arisen out of and in the course of her employment.
By the notice of appeal, the appellant contends that this finding of fact constituted an error of law in that no tribunal, acting reasonably and properly instructed as to the law, could have made it.
The undisputed facts were that from time to time, the appellant suffered from dermatitis on her hands. This dermatitis was due to the use of the products Hepiclean and Hexol, which she was obliged to use frequently in the course of her employment to wash and sterilise her hands. These periodic outbreaks of dermatitis healed after a period away from her work and contact with cleansing agents.
On 18 January 1999, the appellant noted the presence of dermatitis on the forefinger of her right hand, similar in appearance to the dermatitis that had previously appeared on her hands. This dermatitis did not incapacitate the appellant from working, but she did not work after 18 January as she was due to commence a holiday break the following day.
Over the next 10 days, the appellant spent time with her family, both at home and on holiday at Orford. The dermatitis did not heal. A few days after the appellant commenced her holidays, she noticed signs that indicated that her finger might have become infected. As this got worse, the appellant consulted a general practitioner on 28 January 1999. The finger was painful. An antibiotic was prescribed. By the end of the day, the pain was so bad and the swelling so marked, that the appellant returned to the doctor and in result was admitted to hospital that evening. Antibiotics were administered intravenously and she underwent surgery the next day. There followed a period of incapacity for work and medical expenses were incurred. There is also some residual disability.
The undisputed evidence before the Tribunal was that the appellant's finger had been infected by an organism called Streptococcus Pyogenes. In its reasons for judgment, the Tribunal cited this passage from the medical evidence:
"(The worker) has a specific, chronic and recognised syndrome of skin damage and dermatitis secondary to Hexol. This is common in health workers and I believe that it is the damage in the skin that lowered her resistance to the invasion of the organism Streptococcus Pyogenes with subsequent infection in the pulp space and the lymph vessels."
The evidence was that the organism is present in the ordinary environment, as well as in the hospital environment. The Tribunal said that:
"The conclusion on the evidence is that this organism could have been acquired at anytime and that there was no way to establish any link between the acquisition of the organism and the worker's work duties."
No complaint is made about any of the foregoing upon the hearing of this appeal. The appellant's complaint is about the ultimate conclusion reached by the Tribunal.
In the course of its reasons for judgment, the Tribunal observed that had the appellant been incapacitated from work by the dermatitis, then there would be no doubt that her incapacity was due to an injury being a disease that arose out of and in the course of her employment and to which her employment contributed to a substantial degree, as is prescribed by the Act, s25(1)(b). However, as the Tribunal pointed out, she was not incapacitated by the dermatitis. Incapacity did not occur until on or about 28 January 1999, and came about because of the entry into the wound of the organism Streptococcus Pyogenes.
The Act, s3(5) provides:
"(5) For the purposes of this Act, where a worker suffers an injury that is a disease, that injury shall be deemed to have occurred ¾
(a) on the day on which the worker became totally or partially incapacitated by reason of that injury; or
(b) …".
Accordingly, the appellant did not suffer an injury until on or about 28 January 1999 when the infection in the finger had spread and caused her to seek medical help. With respect to the meaning of disease, the Tribunal cited part of the following passage from Attorney-General (Tas) v Smith A35/1994 at 5 - 6:
"I consider that the key to the distinction between injuries which are and which are not diseases is to be found in the word 'development' appearing in the definition of 'disease'. That word suggests that the definition is limited to conditions which might be said to develop. It is implicit from the use of that word that the definition is concerned with autogenous conditions and conditions which find their origin in the environment in which a worker finds himself which naturally progress (whether gradually or suddenly) as distinct from physiological change, not related to any such condition, which results from external trauma. The external trauma which made the pre-existing tinea (which in itself was a disease) in Pasminco Australia Ltd v Fairchild (supra) incapacitating did not result in the worker having suffered an injury other than a disease. It remained a disease, namely tinea. On the other hand the physiological change which occurs when a worker falls and breaks his leg is not an injury which is a disease because it cannot aptly be described as having developed in the relevant sense. Where an injury finds its origin in an external traumatic event causing immediate injury and is unrelated to any condition from which the worker is suffering, it is not an injury which is a disease because it cannot be said to have developed. That view is consistent with the approach taken by Crawford J in FAI General Insurance Company v Morrisson A79/1993. Where an injury is suffered by a developing clinical condition becoming disabling, then it is an injury which is a disease, even if some external trauma has caused it to become disabling."
See also Pasminco v Fairchild A57/1991 and Smith v Attorney-General (1994) 4 Tas R 298.
To explain the process which led to the appellant's incapacity, the Tribunal's reasons for judgment then set out the following passage from the medical evidence:
"On clinical grounds (the worker) had streptococcal pyodermia which spread from the superficial tissues of the skin to the pulp space and consequently to the deep tissues of the hand and wrist. The fact that she had redness spreading up her arm suggested that she also had lymphangitis a complication that denotes imminent septicaemia."
The medical evidence also explained that pyodermia is a localised streptococcal infection of the skin, caused by the organism Streptococcus Pyogenes.
The Tribunal concluded that streptococcal pyodermia was a disease and further, that it was the disease that incapacitated the appellant from working. The Tribunal found upon the medical evidence that there were two separate diseases. The first, dermatitis, was quite separate from the second, streptococcal pyodermia. The evidence showed quite clearly that streptococcal pyodermia was not a natural progression or development of dermatitis. It was the natural development or consequence of the opportunistic entry into the damaged surface of the skin of the organism Streptococcus Pyogenes. As the evidence failed to established that Streptococcus Pyogenes arose out of and in the course of the appellant's employment with the respondent, the Tribunal dismissed the application. It reasoned that although the dermatitis was also a disease, that disease did not lead to incapacity and therefore, it was not open to find that the appellant suffered an injury which was a disease by reason of the contraction of dermatitis. No fault can be found with that reasoning. The Tribunal was entitled to distinguish this case from Fairchild (supra), as in that case the incapacity arose out of the development of the disease tinea. Similarly, the Tribunal was entitled to point out, as it did, that unlike Sherriff v Community Pride Inc [1999] TASSC 47, this was not a case where the disease may have been caused by the employment but did not become incapacitating, and therefore not suffered, until after employment had ceased.
In my view, no fault can be found with either the reasoning or the conclusion of the Tribunal. It is in accordance with the law and the undisputed facts before it. The appeal is dismissed.
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