Aigner v Q-COMP [2011] ICQ 14

CITATION: Elizabeth Aigner AND Q-COMP (C/2011/2) - Decision <http://www.qirc.qld.gov.au> INDUSTRIAL COURT OF QUEENSLAND Workers' Compensation and Rehabilitation Act 2003 - s. 561(1) - appeal against decision of industrial commission Elizabeth Aigner AND Q-COMP (C/2011/2) PRESIDENT HALL 16 May 2011 DECISION [1] By an Application for Compensation dated 23 March 2010 and lodged with WorkCover Queensland the same day, Ms Elizabeth Aigner sought benefits for a psychological injury. The application was made pursuant to the Workers' Compensation and Rehabilitation Act 2003 (the Act). By a letter dated 29 April 2010, WorkCover Queensland informed Ms Aigner that her application had been rejected. By her solicitors, Ms Aigner sought a Statutory Review. By a letter dated 16 July 2010, Q-COMP informed Ms Aigner that Q-COMP had decided to confirm WorkCover Queensland's decision. There was an appeal to the Queensland Industrial Relations Commission (the Commission). By a decision dated 21 January 2011 and released the same day, the Commission rejected the appeal. Ms Aigner now Appeals to this Court. [2] Neither at first instance nor on the Appeal to this Court, has it been disputed that Ms Aigner had developed an "adjustment disorder with mixed anxiety and depression", which constituted a psychological injury which was a "personal injury" within s. 32(1) of the Act. Neither is it disputed on the Appeal that the "personal injury" arose out of the course of her employment, nor that the employment was a "significant contributing factor to the injury". At all times, the critical issue has been (and remains) whether the psychological injury is withdrawn from the definition of injury at s. 32(1) by the operation of s. 32(5)(a) of the Act. I should add, that it is accepted also that on the issues at s. 32(5)(a) of the Act, Q-COMP carried the onus of proof. [3] At all material times, Ms Aigner, who was a registered mental health nurse, worked at the Princess Alexandra Hospital (the Hospital) within the Mental Health Unit. The Commission found that she was employed by the Hospital. I suspect that she was employed by the State of Queensland acting through Queensland Health. In any event, it is not disputed that she and the Hospital were bound by some Queensland Health policies. [4] There were four in-patient sectors within the Mental Health Unit. To begin with, there was Grevillea Place. The Commission's description of Grevillea Place is not controversial. The description adopted by the Commission was: "Grevillea Place which is an aged care mental health unit where the patients are generally aged 65 years and over, have a mental health illness or are being assessed for a mental health illness and have some other medical problems such as medical frailty, physical disability or age related disease. The patients are referred to Grevillea Place by general practitioners, Outreach or the Hospital Emergency Department. There are 16 inpatient beds in the unit.". Ms Aigner had worked within Grevillea Place since 1992. She had not worked within the Mental Health Unit outside the aged/mental health sector. The remaining three sectors were located within the Acute Adult Psychiatric Unit (AAPU). The three sectors had a combined total of approximately 64 beds. The three sectors were spread over an East Wing, a West Wing and an Acute Observation Area. In late February/early March of 2010, the Hospital sought to move Ms Aigner (temporarily) from Grevillea Place to the East Wing of AAPU. [5] The decision to move registered nurses from Grevillea Place to AAPU was not frivolously taken. For a variety of legitimate reasons e.g. a nurse taking maternity leave, the Hospital faced a period of time within which the number of registered nurses in AAPU would fall short of the acceptable level. Without suggesting that Grevillea Place was over-staffed, there was capacity to release registered nurses to work in AAPU. The possibility of using agency nurses or casual nurses for what was envisaged to be a six month period was canvassed in evidence. It was the evidence of the Acting Nursing Director of the Mental Health Unit viz., Mr Pratt, over the period November 2009 to May 2010 that the cost of substitution for a six month period would be prohibitive. The Commission accepted and acted upon that evidence. It was plainly open to the Commission to do so. However, I should record that Mr Pratt's evidence that Ms Aigner's shift to Grevillea Place was to be for two weeks, should not be so enthusiastically embraced. Certainly, that was the expectation. However, it was the effect of the evidence of the Acting Nurse Manager for Grevillea Place viz., Ms Le Roux, over the period September 2009 to 2010 and her successor viz., Ms Burgess, that the two week period was not immutable and that it was envisaged that registered nurses might be shifted for one day periods*. The evidence was that some effort was taken to ensure that Ms Aigner was not led to believe that there was a two week ceiling on her appointment. Further, in fact, some registered nurses ultimately went to AAPU for four weeks. [*Some nurses -- 1 of 7 -- 2 within Grevillea Place (not including Ms Aigner) I should add, had always been exposed to and had always accepted such assignments.] [6] The Hospital was, of course, required to extend fairness to all registered nurses who normally worked within Grevillea Place. Fairness was not to be extended to Ms Aigner only. The Hospital sought to meet that obligation by requiring all Grevillea Place-based registered nurses, other than those contractually tied to Grevillea Place, to work shifts at AAPU on a rotational basis on an alphabetically-based roster. The Commission found that in adopting that policy the Hospital was acting reasonably. In the context of the Commission's reasons for decision, the finding was a finding that the decision was "reasonable management action" within s. 32(5)(a) of the Act. The difficulty with the finding is that in deciding to treat all nurses as anonymous and equal, the Hospital disabled itself from taking account of individual frailties and circumstances at the point of implementation of the policy. Section 32(5)(a) of the Act requires Q-COMP to demonstrate that reasonable management action was taken in a reasonable way in connection with the injured worker's employment. Circumstances personal to the injured worker actually or constructively known to the employer should not be left out of account. Georges v Telstra Corporation Limited1 is a decision upon s. 5A of the Safety, Rehabilitation and Compensation Act 1998 (Cwth), which excludes from the definition of "disease" a disease suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment. The decision does not concern s. 32(5)(a) of the local Act. However, the concepts employed by each legislative measures are sufficiently similar as to make apposite the observations of Dr Campbell (Member) at paragraphs 22 and 23: "22. I observe that the Concise Oxford Dictionary defines the word reasonable in terms of sound of judgment, sensible, moderate, not expecting too much, ready to listen to reason, within the limits of reason, not greatly less or more than might be expected, tolerable, fair. 23. I accept that the above definition provides adequate guidance upon which a decision-maker should assess a particular administrative action. I would also interpret that any assessment of reasonable in the context of reasonable administrative action must be taken on objective consideration of the administrative action taken or contemplated to be taken. Furthermore, I consider that the term 'reasonable administrative action' implies a consideration of the reasonableness of the nature of the nominated administrative action, for in my opinion the fact that the action has to be taken in a reasonable manner in so far as it relates to an employee’s employment, clearly implies that objective consideration of circumstances both leading to and creating the reasons for the administrative action to be undertaken and a consideration of circumstances that may flow as the consequence of such administrative action being taken. In such circumstances, where administrative action to be taken involves consideration of circumstances particular to the individual, implementation in a reasonable manner implies that the particular circumstances of the individual known to the employer and impliedly to the maker of the administrative action be considered. Further, the circumstances of the individual that could have become known by simple enquiry should be considered. I would also observe that administrative action in an organisation is rarely taken in isolation of a context that creates the need for administrative action. Such context may be derived from factors either external and/or internal to the organisation and the administrative action taken that relies upon such circumstances must document such, in order that administrative actions that flow appear to be grounded on detailed considerations. Similarly issues of timeliness and scope of the administrative action will be an issue for assessment. I conclude that, while the assessment of 'in a reasonable manner' relates to the administrative action contemplated and does involve the possible consideration of a variety of circumstances, the underlying assessment standard must remain an objective assessment of all the material that has been collated or should have been collated. I would also recognise that particular administrative action as pertaining to an individual employee are usually taken in accordance with a corporate policy framework and administrative instructions - frameworks and instructions that have been created as a consequence of consultation with staff and others, and often as such provide the context within and the context of a particular administrative action is taken.". [As Counsel for the Appellant points out, paragraph 22 and one aspect of paragraph 23 were adopted by Dr McPherson and Mr Kenny in a joint decision in Griffiths v Telstra Corporation Limited2. No adverse comment was made about other aspects of paragraph 23.] [7] The psychiatrist called by Ms Aigner viz., Dr Megan Archer, was told by Ms Aigner that she could not go to AAPU because the shift would involve working with staff who had bullied her over a period of years. At one point in the course of her evidence, Ms Aigner advanced the same proposition in the witness box. The Commission was not satisfied that such bullying had occurred. Counsel for the Appellant does not query that finding. However, the case mounted by Ms Aigner was not based on bullying. The case advanced was based on shortcomings in the consultative process followed by the Hospital leading up to the decision to rotate registered 1 Georges v Telstra Corporation Limited [2009] AATA 731 2 Griffiths v Telstra Corporation Limited [2010] AATA 952 -- 2 of 7 -- 3 nurses from Grevillea Place through AAPU on an alphabetical roster and shortcomings in communicating the decision to Ms Aigner (who did not wish to work within AAPU). Amongst other things the alleged inadequacy in consultation was said to preclude an affirmative conclusion that management action had been "reasonably taken". [8] The law has long since recognised the importance of consultation with those to be affected by a decision. In John v Rees and Others3, Megarry J speaking very generally, observed: "Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events.". In Federated Clerks Union of Australia v The Victorian Employer's Federation4, Murphy J took the matter a little further observing: "During this generation there has been an accelerating trend towards concentration of economic power in fewer and fewer persons. The growth of the great national corporations, their mergers and expansion into transnationals have transformed the methods of production, distribution and exchange. The power of the greatest corporations transcends that of most governments. A reaction to the submergence of the individual worker is the demand by organized workers for some share in deciding what work is to be done, by whom and when, where, and how it is to be done. The thrust of the demand is not merely the improvement in existing pay and conditions. It extends to the protection of jobs, for themselves and other workers, but is more than that; it is a demand to be treated as more than wage-hands - to be treated as men and women who should be informed about decisions which might materially affect their future, and to be consulted on them. It is a demand to emancipated for the industrial serfdom which will otherwise be produced by the domination of the corporations; a demand to be treated with respect and dignity.". The passage was cited with approval in QR Limited v Communications, Electrical, Energy, Information, Postal, Plumbing and Allied Services Union of Australia5. On its material facts, Federated Clerks Union of Australia v The Victorian Employer's Federation op. cit., was about termination, change and redundancy. However, the passage cited is expressed in language which is not restricted to those subject matters, and in Quality Bakers of Australia v Goulding and Another6 Beazley J explicitly acknowledged the importance of consultation in relation to "workplace change" outside the area of restructuring, observing: "The need for consultation with employees and, if applicable, the employees' union, in the case of workplace change or restructuring, has consistently been recognised as an essential element of fairness in the relationship between employee and employer.". More recently in QR Limited v Communications, Electrical, Energy, Information, Postal, Plumbing and Allied Services Union of Australia op. cit., at paragraphs 79 to 81, Gray J observed: "79. It is not difficult to ascertain what the consultation clauses mean by way of consultation. As cl 36.1 makes clear, consultation is to be 'Aimed at getting individuals or groups to suggest or respond to proposals'. It is to provide 'an opportunity to present a point of view or state an objection'. The exchange of information required is to ensure that there is 'the actual and genuine opportunity to influence the outcome.' The mere provision of information does nothing to promote these outcomes. Nor does the giving of opportunities to ask questions, in response to which the management line is disseminated. 80. To comply with its obligations to consult, management needed to make it clear that there would be real opportunities for employees, individually or collectively, to suggest proposals for the implementation of the government's intention to privatise part of its railway operations, and to respond to the proposals of management about such implementation. Opportunities for employees to present their points of view or state their objections were necessary. So was a genuine opportunity to influence the outcome, so that even though management was not giving up its right to make a final decision, it was prepared to do so only after hearing and considering the suggestions of employees, their responses to management proposals, their points of view and their objections. 81. Even though management retained the right to make the final decision, it is not to be assumed that the required consultation was to be a formality. Management has no monopoly of knowledge and understanding 3 John v Rees and Others [1970] Ch 345 at 402 4 Federated Clerks Union of Australia v The Victorian Employer's Federation (1984) 154 CLR 472 at 494 5 QR Limited v Communications, Electrical, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2010] FCAFC 150 6 Quality Bakers of Australia v Goulding and Another (1995) 60 IR 327 at 334 -- 3 of 7 -- 4 of how a business operates, or of the wisdom to make the right decisions about it. The process of consultation is designed to assist management, by giving it access to ideas from employees, as well as to assist employees to point out aspects of a proposal that will produce negative consequences and suggest ways to eliminate or alleviate those consequences. In his reasons for judgment, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited [2010] FCA 591 at 117-129, the primary judge set out several examples of suggestions by employees, in response to the letters of 22 January 2010, which management implemented by making changes to its original proposals. Proper consultation prior to the sending of those letters would have been likely to reveal those suggestions, and perhaps many others that would have been of value to management in deciding how to implement the privatisation decision.". [9] QR Limited v Communications, Electrical, Energy, Information, Postal, Plumbing and Allied Services Union of Australia7 was about transfer of employment. In this case, both at first instance and on the Appeal, it has been contended for the Appellant that she was to be transferred within her employment in that she was to relocate from Grevillea Place to AAPU. Such a change was said to attract an obligation to consult both on the basis of the observations discussed at paragraph [8] above and on the basis of the policies binding on the Hospital set out in a document entitled "Transfers in Queensland Health - Human Resources Policy" (effective from September 2009). The Commission did not accept that Ms Aigner was to be transferred within the meaning of the policy or at all. The key elements to the Commission's decision appear to be that Ms Aigner was to remain within the Hospital's Mental Health Unit and that any change was to be temporary. [10] As to the matter of change of location, the Shorter Oxford Dictionary (5th edition) says of "Transfer" [emphasis added]: "The action of transferring or fact of being transferred; conveyance of removal from one place, person, etc., to another. Also spec., the removal of a worker, player, etc. from one location, sphere, club etc., to another; a change of place of employment within an organization.". The Macquarie Dictionary (5th edition) gives as the first meaning of "transfer": "To convey or remove from one place, person etc to another.". Additionally, in Manly Pacific International Hotel v Doyle8, on the material facts, the New South Wales Court of Appeal appears to have accepted that an employee moved from one catering facility to another within a hotel may be described as "transferred". Here, as in that case, I should add, the change in location also involved a variation in duties which required the worker to perform duties which the worker had not performed for a very considerable period of time. [11] Neither the Shorter Oxford Dictionary nor the Macquarie Dictionary gives any support to the proposition that a transfer may not be temporary. On two previous occasions, see Queensland Police Service v Q-COMP9 and Bunnings Group Limited v Q-COMP10 at paragraph 65, other Members of the Commission have accepted that a transfer may be temporary. I accept the Respondent's submission that Ms Aigner may legitimately have been said to have been "seconded" to AAPU. However, the Oxford Compact Thesaurus (2nd edition) gives "transfer" as a synonym for "second" used as a verb. As to the policy document, viz., "Transfers in Queensland Health - Human Resources Policy", paragraph 7.3.2 Operational Reasons for Transfer, gives as one of a list (non- exhaustive), reasons for a management initiated transfer "Management of staff in ill-health situations". That example is entirely analogous with the situation in which the Hospital found itself. The obligation to consult, I should add, is explicit (see paragraph 7.4.5) and the impact on individual employees is to be considered (see introduction to paragraph 7). [12] In my view, Ms Aigner was transferred both for the purposes of the application of general principle and for the purposes of the policy document "Transfers in Queensland Health - Human Resources Policy". [13] Counsel for the Appellant has pressed the argument that because the Nurses and Midwives (Queensland Health) Certified Agreement (EB7) 2009, incorporates the provisions of the Nurses (Queensland Health) (Section 170MX) Award 2003, the Hospital was required by clause 20.1.6 of that Award to consult with the Appellant. In my view, clause 20.1.6 relates to post-transfer consultation about the terms and conditions of employment. This matter is about pre-transfer consultation. 7 QR Limited v Communications, Electrical, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2010] FCAFC 150 8 Manly Pacific International Hotel v Doyle [1999] NSWCA 465 9 Queensland Police Service v Q-COMP (2009) 190 QGIG 193 at 219 10 Bunnings Group Limited v Q-COMP (WC/2010/65) - Decision <http://www.qirc.qld.gov.au> -- 4 of 7 -- 5 [14] The decision to rotate registered nurses from Grevillea Place through AAPU on an alphabetical roster was taken without any consultation with Ms Aigner who was on leave (annual leave and sick leave). Indeed, she was not told of the policy until after her return to work. It is the submission of the Respondent that it is inherently reasonable for an employer to refrain from contacting staff who are on leave and that the Hospital had adopted that policy. At least in the case of staff on sick leave, the submission has some attraction. The problem is that the first roster showing the impact of the policy of rotation was published in her absence and showed that she had been seconded from Grevillea Place. Predictably it came to Ms Aigner's notice. (Ms Le Roux later apologised for the lapse.) Moreover, when she returned to work on a Saturday she was confronted with a roster showing her rostered on at AAPU and had no immediate access to a superior with whom to discuss the matter. Both parties to the Appeal accept the Commission's findings at paragraph [7]: "• rosters at Grevillea Place and the AAPU are available to staff in those areas some three to four weeks prior to the commencement date of the roster; • in the roster for Grevillea Place for the period 9 February 2010 to 7 March 2010 (Exhibit 1) the Appellant is rostered at Grevillea Place to work rotational shifts; • the Appellant suffered an illness on or about 20 February 2010, so from that date until 27 February 2010 the Appellant was either on sick leave or on days off and did not attend work at the Hospital; • before the Appellant attended work on Saturday 27 February 2010, she had been shown a copy of the roster for Grevillea Place for the period 8 March 2010 to 4 April 2010 (Exhibit 2) by her partner, Geoffrey Allen. That roster has the Appellant noted as 'seconded' for the first two weeks and on 'secondment' for the remaining two weeks of the roster. No particular shifts were identified in that roster as the roster was a Grevillea Place roster; • the Appellant had previously had annual leave approved for the period 8 March 2010 to 21 March 2010 which was not shown on the Exhibit 2 roster and she was angry that this was not reflected on the roster; • when the Appellant returned to work on Saturday 27 February 2010, she saw another roster for Grevillea Place for the period 8 March 2010 to 4 April 2010 (Exhibit 3) which indicated, that the Appellant was on annual leave for the period 8 March 2010 to 21 March 2010 and then rostered to work at the East Wing of the AAPU during the period 22 March 2010 to 4 April 2010. No actual shifts are indicated on the Grevillea Place roster as they would have appeared on the East Wing of the AAPU roster for the period. This was the first occasion that the Appellant knew she had been rostered to work at the East Wing of the AAPU; • the day of the week on which the Appellant first saw the Exhibit 3 roster was a Saturday. The Nurse Unit Manager, the relevant Assistant Nursing Director and the relevant Nursing Director did not work on Saturdays so the Appellant was unable to address her concerns on that day. The Appellant also stated that she was not well enough on that day to address her concerns about the roster; • on Saturday 27 February 2010 the Appellant wrote the following diary entry: '1230 - 2100 Back to work Still unwell in charge Found out from new roster about T/F to EW. not been told by anyone.'. • on 28 February 2010 the Appellant noted in her diary that she was rostered for an early shift and that she was still unwell. The nursing management for the Mental Health Unit were not at work on that day as it was a Sunday.". In its application to the facts of this case, the "no contact" policy had caused Ms Aigner to become aware of a roster quite adverse to her with no notice of the policy behind the roster: no notice of the likelihood of its repetition and no opportunity to seek information about such matters. It is not surprising that in evidence Ms Aigner described her treatment as a slap in the face. To modify the language of Wilson J in the Federated Clerks Union of Australia v The Victorian Employer's Federation and Others11, there had been scant regard for "human dignity". In its practical application in the case of Ms Aigner, the Hospital's "no contact" policy was unreasonable. 11 Federated Clerks Union of Australia v The Victorian Employer's Federation and Others (1984) 154 CLR 472 at 502 -- 5 of 7 -- 6 [15] The first conversation which Ms Aigner had with a person in authority over her, was on 1 March 2010 (a Monday) when she spoke with the Acting Nurse Manager for Grevillea Place (Ms Le Roux). Ms Aigner made plain that she was unhappy about going to the East Wing of AAPU. [16] Ms Aigner was not rostered to work on 2 March 2010. Neither was she rostered to work on 3 March 2010. She was rostered to work on 4 March 2010 (Thursday). On that day she spoke to the new Nurse Unit Manager viz., Mr Burgess, who had commenced work on 1 March 2010. Ms Le Roux was present. Ms Aigner was told about the rotation policy and that she had been rostered before a Mr Adams because Mr Adams had a contract specific to Grevillea Place. Ms Aigner was also informed that Mr Burgess and Ms Le Roux had no authority to negotiate a variation of the policy to accommodate Ms Aigner. [17] The Commission was correct to find that, either at the meeting of 4 March 2010 or at a meeting the following day, Mr Burgess informed Ms Aigner that she could and should take up her concerns with the Acting Nursing Director or the Assistant Nursing Director. However, Ms Aigner was left to organise any such meeting for herself. She had no reason to believe that she would receive anything more than courtesy. Indeed, so far from encouraging Ms Aigner to hope for change, Mr Burgess and Ms Le Roux pressed Ms Aigner to sign an "Employee Movement - Temporary" form, relating to the transfer to the East Wing of AAPU. [18] Consultation should precede a decision. Consultation should not follow a decision. It is unsurprising that Ms Aigner, who had already asked the Australian Nursing Federation (Queensland Branch) to intercede on her behalf, did not make the effort to seek out the Acting Nursing Director or the Assistant Nursing Director so as to seek the reversal or variation of a recent policy decision at such short notice* that an alternative roster might not conveniently have been put in place. [*Ms Aigner was rostered to work in the East Wing of AAPU on 7 March 2010 and from 22 March 2010 to 4 April 2010.] [19] Ms Aigner worked in Grevillea Place on 6 March 2010. It is not immediately clear whether she called in sick or claimed a family day off on 7 March 2010 (which was to be her first day at AAPU). It is clear that she did not work in the Mental Health Unit on 7 March 2010. Indeed, she has not worked at the Hospital since 6 March 2010. [20] Q-COMP contends (and the Commission accepted) that consultation with Ms Aigner would not have led to a different outcome. I suspect that post 5 March 2010, that submission is correct. Both the Hospital and Ms Aigner had slipped into intransigence (or, perhaps in Ms Aigner's case, into defeat/resignation). What would have happed if consultation had occurred before the policy decision was made and/or published is a matter of speculation. (I accept that potentially Ms Aigner might have asserted that her skills had degraded over time and that she could not cope with violent patients. I also accept also that there was evidence from Mr Pratt that skills were an aspect of rostering.) However, the critical question is not whether consultation at that earlier point would have led to a different roster and/or to acceptance of the transfer by Ms Aigner. One is concerned with conduct of the Hospital management: not with Ms Aigner's response. The critical question is whether in the absence of such consultation, the Respondent has demonstrated that in implementing a reasonable management decision about Ms Aigner's employment, the Hospital acted in a reasonable way. In my view, the Respondent who bears the onus of proof has failed to make out such a case. [21] The Commission had the advantage of seeing and hearing the witnesses and the advantage of observing the trial develop. The Commission recorded "concerns about the Appellant's bona fides in this matter". To the extent that the "concerns" recorded, relate to Ms Aigner as witness, they are arguably manifestations of her adjustment disorder. In any event, any "concerns" about Ms Aigner's evidence are irrelevant. On the issues about s. 32(5)(a) of the Act, the case developed for Ms Aigner is that, save on the issue of access to the roster showing her moved from Grevillea Place whilst on leave (which evidence was not contested), reliance need not be placed on her evidence. Nor need reliance be placed on the evidence of her partner. The evidence relied upon fell from Q-COMP's witnesses and documents generated by the Hospital or by Queensland Health. [22] Counsel for the Appellant has sought to argue the matter in terms of denial of natural justice. Whether the matter is addressed within the rubric of the consultation cases or as analogous to natural justice, one ultimately focuses on the same factual transactions and enquires whether reasonable management action was taken in a reasonable way in connection with Ms Aigner's employment. In circumstances in which the State of Queensland has not sought leave to be heard, it seems to me not to be appropriate (and to be unnecessary) to embark on analysis of the in-roads made by administrative law remedies on the relationship of employer and employee where the employer acts under Statutory authority. -- 6 of 7 -- 7 [23] I allow the Appeal. I set aside the decision of the Commission. In lieu thereof, I declare that Ms Aigner did suffer an injury for the purposes of the Act and rule that Ms Aigner's Application for Compensation was one for acceptance. I reserve all questions as to costs on this Appeal and all questions as to costs of proceedings in the Commission. Dated 16 May 2011. D.R. HALL, President. Released: 16 May 2011 Appearances: Mr K.F. Watson, instructed by Susan Moriarty & Associates, Solicitors for the Appellant. Mr P.B. Rashleigh, directly instructed for the Respondent. -- 7 of 7 --