In the WA workers’ compensation system, there are specific industrial diseases or groups of industrial diseases listed in Schedule 3 of the Workers’ Compensation and Injury Management Act 1981 (the Act) that are deemed to be due to a worker’s employment.
Section 44 of the Act prescribes that if a worker contracts one of the listed diseases or types of diseases, performing a relevant process listed in the schedule, and provides a certificate from a medical practitioner for the disease, then the injury is deemed to be due to employment “unless the employer provides to the contrary”.
For example, if a worker provides a certificate from a medical practitioner for “mineral poisoning” (such as arsenic, phosphorus or lead) and the worker’s employment involves the use or handling of that mineral or their preparation or compound, then it will be deemed to be due to employment. The onus would then rest with the employer to prove the disease was not work-related.
In the case of Glenister v NMAHS Mental Health (Graylands Hospital) (District Court of Western Australia, 14 of 2017, Judge O’Neal, 3 February 2017), HWL Ebsworth acted on behalf of Graylands Hospital in the successful defence of a claim in which the Worker claimed that her MSRA infection was a “Communicable Disease” pursuant to Schedule 3 of the Act.
The claim highlights that even if a Worker is infected by a Schedule 3 disease and there is potentially a connection to their employment, the Worker must still provide sufficient evidence of a causal connection between a work process and a disease before the deeming provisions in the Act can be invoked.
Ms Glenister (the Worker) was employed at Graylands Hospital (the Employer) as a Registered Mental Health Nurse.
In January 2014 she attended her GP for intense right ear pain. A swab of the ear was taken and a culture of the swab revealed that her ear was infected by bacteria identified as MRSA, or Methicillin-resistant Staphylococcus Aureus (commonly known as golden staph). The Worker received treatment which included intravenous antibiotics and surgery to her ear in July 2014. She was left with damage to her right eardrum and a permanent hearing impairment. She remained off work until January 2015.
The Worker lodged a workers’ compensation claim in May 2014, claiming that the MRSA infection was a “Communicable disease” pursuant to Schedule 3 of the Act. For a communicable disease to be deemed due to employment, the employment must meet the following criteria:
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.
The Worker claimed that she satisfied this criteria on the basis that she was a nurse working in a healthcare environment which would expose her to MSRA infected patients and items such as bedding and clothing and as part of her duties. The Worker did not seek to rely on any specialist expert opinion. Liability was disputed by the Employer on the basis that sufficient evidence had not been provided to establish that the MSRA infection was related to employment.
At arbitration, the Worker relied on a Western Australian Department of Health publication entitled “HISWA Healthcare Infection Surveillance Western Australia Surveillance Manual” (HISWA report) to establish the fact that MSRA is prevalent in a healthcare environment. The HISWA report provided a summary of gathered data about healthcare infections including MSRA and an analysis of that data in relation to certain public and private healthcare facilities. Graylands Hospital, a mental health facility, was not included in the report as it was not a hospital that conducted surgical procedures.
The Arbitrator found:
- there was insufficient evidence that MSRA was a “Communicable disease” as specialist expert evidence had not been submitted to support this contention;
- the MSRA infection was not a necessary risk to the Worker’s employment because the hospital facility was a mental health facility rather than a hospital that conducts surgery or hospital admissions where an MSRA infection is more likely to occur; and
- there was no or no sufficient evidence to find the Worker suffered a compensable injury under the Act.
The Worker appealed the decision to the District Court. DCJ O’Neal provided judgment on 3 February 2017. His Honour:
- determined the Arbitrator erred in law in not accepting that there was sufficient evidence tendered by the Worker to establish that MRSA is a “Communicable disease” for the purposes of the deeming provisions of the Act. He concluded that specialist expert opinion was not necessary and a definition from Mosby’s Medical Dictionary sufficed;
- the Worker’s reliance on the HISWA report as the only evidence in support of her claim “was a substantial invitation into error”;
- evidence relied upon by the Worker was insufficient to establish the Worker’s infection could be “reasonably presumed” to have arisen in the course of her employment and, to that end, the Worker failed to prove her case (without requiring the Employer to raise a defence, or rebut the presumption created by the deeming provisions);
- notwithstanding his view in relation to defining “Communicable disease”, found that the Arbitrator was correct in his conclusion that the Worker “failed to prove her case”; and
- dismissed the Worker’s appeal.
Section 44 provides a prescriptive way that a worker can establish that a disease listed in Schedule 3 is a work-related injury. A worker however needs to adduce evidence that the disease is related to the relevant described employment process. Sufficient evidence must be provided by the worker to prove there is a causal connection between an actual work process and the disease before the disease is connected to employment. Once a Worker has provided sufficient evidence of a causal connection, then if the employer disputes the claim, the onus rests on the employer to prove it is not a work-related injury.
This article was written by Matthew Thickett, Special Counsel and Sarah Hartney, Associate.