During the COVID pandemic employers were supported by the NSW Government, including through the mandates directing when and where face masks were to be worn.
A recent presidential member decision in the Personal Injury Commission (PIC) confirmed a certificate of determination where the member had concluded that the public order enforcing the mandatory wearing of face masks was the main contributing factor to the exacerbation of a pre-existing injury, and this was NOT a work-related factor.
Bjekic v State of New South Wales (Western Sydney Area Local Health District)  NSWPICPD 27.
Mr Bjekic (the appellant) was employed by the insured as a security officer at Mt Druitt Hospital. He returned to work after an undisputed work-related injury in October 2020 completing suitable duties as a COVID Marshall.
The appellant suffered from a pre-existing sinus condition, which was aggravated by the wearing of a mask. To alleviate these symptoms, he would often wear the mask below his nose rather than over it. He was stood down because of his inability to properly wear the mask and subsequently lodged a claim for compensation.
There was significant medical evidence to support the claimant’s assertion that wearing the mask aggravated his symptoms. On appeal it was noted that none of the medical experts addressed the question of whether the appellant’s employment was the main contributing factor.
The member had stated that the relevant test was one of causation which required an overall consideration of the evidence including any non-work-related causes.
The insurer declined liability for the injury on the basis that employment was not a main contributing factor to the aggravation of a disease injury. On 18 March 2022, the matter progressed to arbitration where the member had determined the appellant’s employment was not a substantial contributing factor or the main contributing factor to the injury and entered an award for the respondent.
The decision was appealed by Mr Bjekic on two grounds:
- The Member was in error to conclude that section 4(b)(ii) of the Workers Compensation Act 1987 was not satisfied in the circumstances of the case.
- the Member was in error in taking into account irrelevant considerations when making his decision and failed to take into account relevant considerations.
On appeal, Wood DP analysed the original decision of the member and referred to the test provided by AW v AW
where Snell DP advised the test to determine if something is a main contributing factor to the aggravation of a disease “involves an evaluative process…both work and non-work related.”
Wood DP agreed with the respondents’ submissions, that the member had correctly applied the test for “main contributing factor” in AW v AW in placing importance on the non-work related causative factor. The mandating of the need to wear a mask was not a direction from the employer. As the wearing of the mask was the causative factor it could not be said the employment was the main contributing factor.
It is evident the workers compensation system is still dealing with the effects of COVID. The decision in this matter is significant as the PIC upheld a decision where it was determined a government public health order was the main contributing factor and even though the employer was a public health service (part of the State of NSW), the mandatory direction was not made by the employer.
This is important in matters where COVID public health directives can be established on the facts as the main contributing factor. In such cases, there is a strong case that employment causation cannot be established (but of course, each case will depend on its facts!).
Please reach out to Naomi Tancred, Partner should you require any further information or assistance.
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Blog written by Hicksons' Partner, Naomi Tancred and Paralegal, Connor Wares.