Causation and COVID

Bjekic v State of New South Wales (Western Sydney Area Local Health District) [2023] NSWPICPD 27

The Applicant was employed by Western Sydney Local Health District (the Respondent) as a Security Officer working out of Mt Druitt Hospital.  In order to manage the spread of COVID-19, numerous Public Health Orders (PHOs) were issued with respect to the requirement to wear masks in all public hospitals.

As of October 2020, the Applicant worked as a COVID-19 Marshall and he was advised by the Respondent that he was required to wear a face mask at work in line with the PHO.

The Applicant alleged that his pre-existing sinus condition was aggravated by wearing a mask. When further restrictions came into effect in June 2021, the Applicant was stood down because of his inability to wear the mask.

The Applicant lodged a worker’s compensation claim which was disputed pursuant to sections 4(a), 4(b)(ii) and 9A of the Workers Compensation Act, 1987 (NSW) (the 1987 Act).

The matter proceeded to arbitration in the Personal Injury Commission (PIC), where the Member determined that the Applicant’s employment was neither a substantial contributing factor, nor the main contributing factor to the Applicant’s injury. Rather, the injury was determined to have been caused by the directive issued by NSW Health and imposed upon the Respondent. The Member stated:

“It was the effect of the orders which was a substantial contributing factor, in the absence of any other contributing factors. In these circumstances it was in fact the only substantial factor, and possessed the qualities of being both real and of substance.”

Accordingly, the Member ordered an award for the Respondent. The Applicant appealed the decision.

The Appeal Grounds

It was contended by the Applicant that the Member of the PIC erred by concluding that section 4(b)(ii) of the 1987 Act was not satisfied in the circumstances of the case. Further, it was asserted that the Member had considered irrelevant matters when making his decision and failed to take into account relevant considerations.

Decision on Appeal

With respect to section 4(b)(ii), Deputy President Wood observed that the Member had correctly noted that the onus of proof rested on the Applicant and that the relevant test was one of causation, which involved a consideration of all the evidence, including all non-work-related factors.

The Member had recorded that it was ‘common ground’ between the parties that the mandating authority was the NSW Government who had issued the restrictive regulations, and that while the injury occurred in the course of the Applicant’s employment, the ‘substantial’ cause was the Orders issued by the NSW Government who had imposed upon the Respondent orders leading to a change in the Applicant’s employment.

As a result, the Deputy President stated it was apparent that the basis for the Member’s determination was that the injury was caused by the directives from the Government of New South Wales and not by the Respondent. The Member had reached this determination by noting the ‘common ground’ between the parties and by considering the available evidence. The Deputy President confirmed there was “no error in that approach” taken by the Member.

Furthermore, Deputy President Wood noted that the Member had observed at first instance that there had been no reference to;

“any regulatory or other authority allowing any employer affected by the health orders to waive compliance with them to cater to an individual’s particular medical case.”

The Deputy President confirmed that this observation by the Member was undoubtedly correct. There was no evidence demonstrating that the Respondent had the power to waive the requirement that the Applicant wear a mask.

The Deputy President confirmed the Member’s finding that the power to grant an exception to the wearing of face masks at hospitals rested with the Minister for Health and not with the Respondent.

The Deputy President concluded that the Applicant had failed to establish that the Member had erred by taking into account irrelevant considerations and failing to take into account relevant considerations.

Implications

In recent times, the PIC has had to deal with a number of disputes wherein workers have suffered injury or aggravated a pre-existing condition due to the restrictions implemented by their employers in order to prevent the spread of COVID-19 and in compliance with PHOs issued by the NSW Government. One of those PHOs required health staff who work in hospitals to wear a face mask to mitigate the risk of transmitting the virus to patients who may be more vulnerable to its effects.

This case confirms that where an injury has been caused or aggravated by changes in employment required to comply with Government mandates/PHOs, employment may not be considered a substantial or the main contributing factor to any development of such injury or to any aggravation of same. Causation remains a factor which needs to be looked at clearly and both medical and factual evidence is required to fully investigate and explain this issue.

Should you have any queries concerning a particular workers compensation matter, please contact our team on either  (02) 8297 5900 or (02) 4929 9333.