Balkin v Nurses 2 You Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Balkin v Nurses 2 You Pty Ltd [2025] NSWPIC 367
APPLICANT:	Jodie-Lee Balkin
RESPONDENT:	Nurses 2 You Pty Ltd
MEMBER:	Rachel Homan
DATE OF DECISION:	30 July 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for compensation in respect of injuries sustained in a motor vehicle accident; dispute by reference to section 10(3A) withdrawn; whether worker was in the course of employment when the accident occurred; whether employment was a substantial contributing factor to the injury; Held – the evidence established that the worker was performing work duties and was therefore in the course of employment when the injury occurred; evidence established that the accident occurred to due syncopal episode; the requirement to wear personal protective equipment and the nature of the applicant’s work contributed to the syncope; while there was evidence of two previous pre-syncopal episodes they were due to external factors not presently relevant; Commission not satisfied that there was a probability that the accident would have occurred anyway regardless of employment; section 9A satisfied; referral to a Medical Assessor to assess the degree of permanent impairment.
DETERMINATIONS MADE:	The Personal Injury Commission determines: 1. The applicant sustained a personal injury in the course of employment pursuant to s 4(a) of the Workers Compensation Act 1987. 2. The applicant’s employment with the respondent was a substantial contributing factor to the injury pursuant to s 9A of the Workers Compensation Act 1987. The Personal Injury Commission orders: 3. The respondent to pay the applicant’s reasonably necessary medical and related treatment expenses in accordance with s 60 of the Workers Compensation Act 1987, upon production of accounts, receipts and/or a valid Medicare Notice of Charge. 4. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows: Date of injury: 23 December 2021 Body parts: Cervical spine, Lumbar spine, and Urinary and reproductive systems (bladder) Method: Whole Person Impairment. 5. The materials to be referred to the Medical Assessor are to include the Application to Resolve a Dispute and all attachments; the Reply and all attachments; the documents attached to the Applications to Lodge Additional Documents lodged by the applicant on 20 May 2025 and 10 June 2025, as well as this Certificate of Determination and accompanying Statement of Reasons. 6. The matter to be fixed for further preliminary conference upon receipt of the Medical Assessment Certificate. 7. Consideration of the admission of the documents attached to the Application to Lodge Additional Documents lodged on 22 July 2025 is deferred until the further preliminary conference. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Ms Jodie-Lee Balkin (the applicant) was a registered nurse employed by Nurses 2 You Pty Ltd (the respondent), a company of which she was also the sole owner and director. The respondent’s business involved the provision of mobile COVID testing, pathology and emergency nursing services.
On 23 December 2021, the applicant sustained serious injuries in a motor vehicle accident.
The applicant made a claim for workers compensation in respect of the injuries, which was disputed by the respondent’s insurer in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 28 June 2022. The insurer determined that the injuries occurred on a journey to or from work and there was no real and substantial connection to employment as required by s 10(3A) of the Workers Compensation Act 1987 (the 1987 Act). The decision to dispute liability was maintained following several internal reviews.
A claim for lump sum compensation was made on 14 March 2024 and subsequently amended. The claim for lump sum compensation was also disputed in a further s 78 notice issued on 19 November 2024.
The present proceedings were commenced by an Application to Resolve a Dispute lodged in the Personal Injury Commission (the Commission) on 18 March 2025. The applicant seeks lump sum compensation, weekly compensation and medical and related treatment expenses.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties appeared before the Commission for conciliation conference and arbitration hearing on 1 July 2025. The applicant was represented by Ms Katharine Young of counsel, instructed by Mr Trevor Wells. The respondent was represented by Mr Bill Loukas of counsel, instructed by Mr Danny Khoshaba. A representative from the insurer was also present.
During the proceedings, the respondent advised that it no longer pressed a dispute by reference to s 10 of the 1987 Act. At the preliminary conference, leave had been granted pursuant to s 289A(4) of the 1998 Act for the respondent to rely on a dispute as to whether the applicant had sustained an injury which satisfied the requirements of ss 4 and 9A of the 1987 Act. That dispute was maintained.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained a personal injury in the course of employment pursuant to s 4(a) of the 1987 Act;
(b) whether employment was a substantial contributing factor to the injury pursuant to s 9A of the 1987 Act;
(c)    the entitlement to weekly compensation as claimed;
(d)    the entitlement to medical and related treatment expenses as claimed, and
(e)    the degree of permanent impairment resulting from a compensable injury.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents;
(c)    documents attached to the Application to Lodge Additional Documents lodged by the applicant on 20 May 2025, and
(d)    documents attached to the Application to Lodge Additional Documents lodged by the applicant on 10 June 2025.
A further Application to Lodge Additional Documents was lodged by the applicant on 22 July 2025, after the arbitration hearing and shortly before this determination was finalised. The attached documents relate to the extent and quantification of incapacity resulting from the injury. As the respondent has not had an opportunity to comment on the admission of those documents, they have not been considered in the making of this determination. Consideration of that Application to Lodge Additional Documents will be deferred until the further preliminary conference.
Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in written statements made by her on 27 July 2022,
12 March 2025 and 16 May 2025.
In her first statement, the applicant said her role was to provide supervision of approximately 30 nurses and phlebotomists employed by the respondent.
On the day of the motor vehicle accident, the applicant left her home at Tahmoor at about 9am and drove to respondent’s office in Austral, arriving at approximately 10am. The applicant attended to her normal duties including, reviewing emails, speaking with staff about plans and changes to the day and made arrangements to drop equipment to staff at multiple locations.
The applicant left the respondent’s office at approximately 11am to deliver equipment and collect samples at various locations around Sydney’s south-eastern suburbs.
The motor vehicle accident occurred at approximately 1.20pm along the New Illawarra Road at Bangor. The applicant was wearing a face mask and it was a relatively hot and humid summer day. It had been an extremely busy time during the COVID pandemic. The applicant said she had begun to feel unwell and lightheaded. The applicant thought she might faint and was about to pull over when she blacked out. The applicant next recalled being in the car with people surrounding her, waiting for an ambulance to arrive. The applicant had no recollection of the accident itself.
The applicant recalled being assisted by ambulance officers and police. The police asked the applicant what happened and she told them she believed she had fainted. The applicant was taken by ambulance to St George Hospital.
At the hospital, the applicant complained to hospital staff that she had extreme back pain. The applicant was told that no abnormalities had been detected on her scans and she was instructed to go home and rest. The applicant was driven home and stayed in bed for two weeks. The applicant could barely walk and her pain grew worse.
On 11 January 2022, the applicant called for an ambulance because of her severe pain. The applicant was taken to Liverpool Hospital where an MRI was taken. The applicant was told that she required urgent surgery due to an L4/5 disc prolapse with foot drop. Dr James van Gelder performed an L4/5 microdiscectomy the same day.
The applicant said she remained with significant back pain, right foot drop and severe nerve pain in her right groin.
In her second statement, the applicant said she received weekly benefits from the respondent’s insurer until 23 May 2022, when her claim was denied. The applicant subsequently made a claim on her CTP insurer and received statutory benefits under that scheme until 21 December 2023.
The applicant said she had now been diagnosed with a neurogenic bladder and had to self-catheterise three to four times per day. The applicant also had bowel incontinence. The applicant also experienced neck problems with intermittent loss of feeling in both arms.
The applicant said that despite her symptoms, she had participated in a work trial performing administrative duties for two hours per day three days per week in March 2023. The applicant managed a couple of hours for two days but could not cope. The applicant could not even sit at the computer.
The applicant said she took Lyrica every day for nerve pain, which made her very sedated. The applicant also took Meloxicam, Tramadol, Panadol and Nurofen as well as Panadeine Forte when her pain was severe. The applicant took Valium at night, had interrupted sleep and was in a state of severe depression.
In her third statement, the applicant provided further detail with regard to her activities on
23 December 2021.
The applicant explained that as she was the sole owner and director of the respondent, its business registration address was her home address in Tahmoor. The respondent held a commercial lease at premises in Austral, which was used as a storage facility to stockpile personal protective equipment (PPE), test kits, electronic devices and pathology supplies, as well as an administrative office from which staff and business operations were coordinated.
All staff were required to work in full PPE, including N95/P2 respirators, face shields, gowns and gloves, at all times when collecting swabs. When travelling between collection sites in her car, the applicant wore an N95 mask and gown. The gown was made of plastic and made her sweat.
From August 2021, when the respondent partnered with Histopath, the applicant worked nearly every day, including weekends. The applicant was working 8 to 12 hours each day due to the demand for the services the respondent provided and staffing shortages.
The applicant confirmed that on the day of the accident, she departed her residence at Tahmoor at 9am and arrived at the Austral premises at approximately 10am. Upon arrival, the applicant completed a rapid COVID 19 test, held a co-ordination meeting and attended to administrative tasks.
The applicant departed the office at approximately 11am with a work vehicle fully loaded with equipment for the day. En route to her first patient, the applicant met with a staff member at Hoxton Park to exchange supplies. The applicant then travelled to her first patients who were residing at a disability care home in lockdown status at Lugarno.
Upon arrival at Lugarno, the applicant donned full PPE equipment including an N95 mask, face shield, gown and gloves. After completing the testing, the applicant removed her PPE and immediately donned a new mask and gown for the journey to the next location at Loftus.
The applicant annexed to her statement a run sheet showing the home visits scheduled for 23 December 2021, including the patients located in Lugarno and Loftus.
Whilst travelling along New Illawarra Road towards Loftus, the applicant began experiencing light-headedness. It felt hot and very stuffy in the car. The applicant attempted to remove her mask and pull over but lost consciousness and was involved in the motor vehicle accident.
The applicant said that the use of full PPE was standard operating practice for all shifts. Despite taking breaks and adhering to WHS protocols, the physical impact of the prolonged PPE use, particularly heat stress, dehydration and fatigue, was cumulative and taxing.
Also annexed to that statement was a commercial lease and correspondence relating to the premises at Austral.

Ambulance records

An ambulance electronic medical record, dated 23 December 2021, records that the applicant had said she began to feel unwell when driving, was lightheaded and felt she would faint. The applicant was about to pull over when the accident occurred.

Treating evidence

A discharge summary from St George Hospital dated 23 December 2021 indicated that the applicant had been in a motor vehicle accident after a syncopal event.
Notes from the Emergency Department recorded that the applicant worked as a COVID swabbing nurse and had been driving between locations. After getting in the car wearing “PPE/N95” the applicant felt hot and lightheaded. The applicant tried to pull over with a subsequent syncope. The applicant woke up in the car following the accident.
The notes recorded that there was no preceding headache, chest pain, visual change or palpitations to the syncope. The applicant had one previous episode, as a result of which brain imaging was undertaken but no abnormalities were detected.
A referral to a neurologist, Dr Alessandro Fois, dated 22 July 2022, from Dr Benson Riddle recorded that the applicant had been involved in a significant motor vehicle accident caused by a syncopal episode while driving. The referral noted that the applicant had seen a neurologist a few years earlier following her only other syncopal episode, however, this was diagnosed as related to a migraine and the applicant had been cleared to drive.
Dr Fois prepared a report on 25 July 2022, in which a history of the applicant having a blackout causing a car accident was recorded. The applicant had reported that she felt lightheaded and tried to pull over but did not make it in time. There had been no blackouts since.
The applicant reported that three or four years earlier, the applicant had been sitting watching television and felt a rush to her head and lightheaded sensation. The applicant felt some numbness and paraesthesia affecting the right side of her face lasting only 30 seconds. The applicant had attended hospital but was discharged home. Afterwards, the applicant saw a neurologist, Dr Mehdi Van Den Bos, and was diagnosed with a probable migraine. The applicant was referred for further investigations.
On 15 August 2022, Dr Fois recorded that he had reviewed various investigations and diagnosed a blackout of uncertain cause.
A letter from cardiologist, Dr John Mooney, dated 15 August 2022 also took a history of the applicant feeling lightheaded and restricted as she was wearing a mask over her face because of the pandemic. The applicant did not feel right, felt lightheaded and decided she needed to pull over. The applicant blacked out and was ultimately T-boned by a four-wheel-drive. There had been no blackouts since this event.
Dr Mooney recorded that the applicant felt quite well on the day of the accident although often did not drink enough water. There was nothing too different about that day and it was not necessarily hot or humid.
Dr Mooney recorded that the applicant had a couple of pre-syncopal events in the past, once when sitting down watching television and another while working in operating theatres. The applicant had to go lie down and then felt better.
Dr Mooney expressed the opinion that the applicant had an unexplained blackout with some features of neurocardiogenic syncope. The applicant was referred for various investigations.
In a letter, dated 6 March 2023, Dr Mooney reported that the examinations and investigations were unremarkable and supported a diagnosis of syncope or a transient loss of consciousness. The applicant had no prior history of syncope and no alternative diagnosis had been identified.

Dr O’Neill

Neurologist, Dr John Hugh O’Neill prepared a medicolegal report for the applicant on
22 August 2024. Dr O’Neill expressed the following opinion on causation:
“There is absolutely no doubt that the accident of 23/12/21 occurred as a consequence of vasodepressor syncope (fainting). Ms Balkan was driving between jobs on a hot December day and was in full PPE gear. She felt the onset of light-headedness/dizziness and recognised that she needed to pull over. Her last recall before the accident was of pulling off her face mask. To be clear, there is no doubt that she would not have fainted were it not for the circumstances of her employment on the date of the accident.”
In a supplementary report, dated 12 December 2024, Dr O’Neill commented on the history of “a couple of pre-syncopal events” in the past taken by Dr Mooney in his report of 15 August 2022. Dr O’Neill stated that vasodepressor syncope is usually an exaggerated physiological response to external stimuli resulting in a fall in pulse and blood pressure to the point where there is a loss of consciousness. Dr O’Neill stated:
“In this case vasodepressor syncope was caused by wearing PPE gear and a mask on a hot day whilst driving to a second worksite.
Vasodepressor syncope would not have occurred in this case were it not for the fact that Ms Balkan was driving to work on a hot day wearing excessively hot clothing including mask and PPE gear.
There is absolutely no doubt that the vasodepressor syncope would not have occurred were it not for the work situation on that day.”

Applicant’s submissions

The applicant referred to her statement evidence noting that she had been travelling from a place of work to another place of work, and was performing work related duties, when the motor vehicle accident occurred.
The motor vehicle accident occurred due to a syncopal episode in circumstances where the applicant was wearing PPE.
The applicant noted that the injury had resulted in significant, ongoing symptoms including foot drop and a need to self-catheterise. The applicant required significant pain relief including Lyrica, Panadeine Forte and Valium. The applicant’s physical injuries also had a significant impact on her psychological condition.
The applicant noted her evidence that she was working in full PPE and wearing a gown and mask while in the car when the accident occurred. The gown caused the applicant to sweat. The accident occurred in summer, in the midst of the COVID-19 pandemic, in which the applicant was involved in providing essential services. The applicant had been wearing PPE daily in a high-pressure environment, which she found tiring.
The police, ambulance and hospital records were consistent with the applicant’s version of events.

The applicant submitted that the ‘injury’ in this case was not the loss of consciousness but the injuries resulting from the motor vehicle accident. The applicant referred in this regard to the decision in Department of Corrective Services v Clifton[1] (Clifton) and the cases cited by ADP Roche in that decision relevant to the application of s 9A of the 1987 Act. The circumstances of this case were compared with those in Sidrak v Frontline Fitouts Pty Ltd (Sidrak)[2].
[1] [2006] NSWWCCPD 310.
[2] [2024] NSWPIC 653.
The applicant noted that the nature of the work performed by the applicant and the conditions in which it was performed had to be considered.
Dr O’Neill gave a clear opinion that the accident was due to a syncopal episode caused by wearing PPE, including a mask, on a hot day.
The applicant submitted that the injury clearly occurred in the course of the applicant’s employment.
Having regard to the considerations in s 9A(2) of the 1987 Act, the applicant submitted that the time and place of injury weighed in favour of the applicant’s case. The nature of the work performed required the applicant to be in the car when the injury occurred. The duration of employment was not a significant consideration. There was no medical evidence that the injury would have occurred anyway due to some hereditary risk.

Respondent’s submissions

The respondent confirmed that it did not press a dispute by reference to s 10 of the 1987 Act.
The respondent drew the Commission’s attention to s 9A(3) and submitted that a worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because it occurred in the course of employment. It was necessary for the applicant to demonstrate a connection that went beyond and above the mere fact that she was in the course of employment when the injury occurred.
In considering the factors set out in s 9A(2) of the 1987 Act, the respondent submitted that the time and place of injury were not determinative.
The respondent submitted that the nature of the work performed did not cause the accident nor did the particular tasks the applicant had to perform. Although reference was made to the wearing of a face mask, summer, and a hot and humid day, none of that suggested that a particular work activity was causative of the blackout.
The duration of the applicant’s employment was said to be of no consequence.
The respondent observed that there was evidence of a pre-existing condition which caused the syncopal event referred to in the treating doctors’ reports. This suggested a probability that the injury could have happened anyway irrespective of employment.
Dr Mooney took a history the applicant having a couple of pre-syncopal events in the past, while watching TV and in an operating theatre. He noted that the applicant needed to keep her fluids and salts up.
The respondent submitted that the applicant had a propensity to syncopal events, of which she was aware prior to the accident. Dr Mooney suggested that the applicant ought to look after herself and avoid situations where she may have a syncopal event. In this case, the applicant was the employer. She had placed herself in a position where the injury was likely to happen.
The applicant’s state of health prior to the accident and hereditary risks were therefore said to be significant contributing factors.
The respondent submitted that, at first blush, the facts of Sidrak appeared similar. However, there was a crucial difference in that the syncopal event in that case was idiopathic with no pre-existing history. There was no suggestion of a probability that a similar injury would have happened anyway. The state of the worker’s health was not relevant in that case.
The respondent submitted that the legislative purpose of s 9A was to limit the effect of s 4 of the 1987 Act to ensure that injuries in the course of employment must also be substantially related to employment. The term “substantial” implied a connection that was significant, major, or important.
Weighed against the other matters, the contribution of employment was not “substantial” in this case.
The respondent concluded that the accident occurred in circumstances where, given the propensity to syncopal events, the accident could have happened anywhere at any time. The fact that the applicant was driving a car between work locations was not enough to satisfy
s 9A of the 1987 Act.

Applicant’s submissions in reply

The applicant noted the respondent’s submission that a syncopal event could have occurred at any time regardless work. The applicant submitted that if the syncopal event had happened, for example, at home she would not have suffered the injuries she had now.
The evidence referred to only two previous pre-syncopal episodes. Those episodes did not result in a loss of consciousness. The evidence did not demonstrate a propensity. Dr Mooney suggested that there could be many causes of a loss of consciousness.
The applicant submitted that the respondent’s submissions with regard to the applicant’s actions as her own employer were irrelevant. No dispute pursuant to s 14(3) of the 1987 Act had been raised.

FINDINGS AND REASONS

Injury

Section 9 of the 1987 Act provides that a worker who has received an ‘injury’ shall receive compensation from the worker’s employer in accordance with the Act. The term ‘injury’ is defined in s 4:
“In this Act:
injury:
(a)     means personal injury arising out of or in the course of employment,
(b)     includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
The expressions, “arising out of” and “in the course of” employment were considered in Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited[3] (Badawi) at [72]:
“Section 4 defines injury as ‘personal injury arising out of or in the course of employment’. The use of the disjunctive is significant, in that two quite different tests are involved, one or other of which is sufficient to be satisfied for the purposes of s 9. It is established that the second limb of the definition ‘in the course of employment’ involves a temporal element and does not of itself contain a causative element. It was for that reason that Mr Zickar succeeded when his congenital aneurism ruptured when he was at work: Zickar v MGH Plastic Industries Pty. Difficult factual issues can arise in determining whether a worker was in the course of employment when injury was sustained, but that arises not because the principle to be applied is uncertain, but because of the fluidity of employment circumstances.”
[3] [2009] NSWCA 324 (8 October 2009); (2009) 7 DCR 75.
In Bill Williams Pty Ltd v Williams[4], Stephen J referred to the High Court decision in Kavanagh v The Commonwealth[5] in holding that the expression, “injury in the course of employment” meant an injury sustained while the worker was engaged in the work which she was employed to do or in something incidental to work. There was said to be nothing more in the concept than time measured by an activity of a particular character. Justice Stephen said,
“It is a temporal concept but the relevant timespan during which the course of employment runs is determined by the activities of the worker; so long as he is engaged in work or something incidental to it the time span endures; as soon as he ceases to be so engaged the timespan ends and with it the course of employment.
That which is incidental to a worker’s work depends upon ‘the sufficiency of the connection between the employment and the thing done by the employee' ‘which is a matter of degree, in time, place and circumstance, as well as practice, must be considered together with the conditions of the employment’: Whittingham v Commissioner of Railways (WA) per Dixon J. [1931] HCA 49; (1931) 46 CLR 22 at p.29.”
[4] [1972] HCA 23.
[5] (1960) 103 CLR 547 at p. 570.
The respondent’s submissions took no real issue with the proposition that the applicant was “in the course of employment” at the time the motor vehicle accident occurred.
I am satisfied on the evidence that has been presented to the Commission that, as a temporal question, the applicant was engaged in a work activity when she sustained the injuries in question.
The applicant has presented consistent statement evidence, which is supported by business records, that the nature of her work was to supervise and support nurses and phlebotomists performing mobile COVID testing, pathology and emergency nursing services. This work necessitated travel to various locations by motor vehicle. I accept the applicant’s evidence that on the day in question, she had attended the respondent’s business premises, where she performed work tasks prior to loading her vehicle with supplies and travelling to her first clients’ location. The motor vehicle accident occurred while the applicant was driving from that location to the next client’s location in order to continue her work activities.
On this basis, I accept that the applicant was performing work duties at the time the motor vehicle accident occurred.
I am satisfied that, on 23 December 202, the applicant sustained a personal injury in the course of her employment with the respondent for the purposes of s 4(a) of the 1987 Act.

Substantial contributing factor

In order for compensation to be payable in respect of the injuries, the applicant must also satisfy s 9A of the 1987 Act, which provides:
“9A   No compensation payable unless employment substantial contributing factor to injury
(1)    No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note. In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4.
(2)    The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):
(a)the time and place of the injury,
(b)the nature of the work performed and the particular tasks of that work,
(c)the duration of the employment,
(d)the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e)the worker’s state of health before the injury and the existence of any hereditary risks,
(f) the worker’s lifestyle and his or her activities outside the workplace.
(3)    A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:
(a)the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b)the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4)    This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
Subsection 9A(3)(a) makes clear that the fact that injury occurred in the course of a worker’s employment, is insufficient to establish that employment was a substantial contributing factor to the injury.
In Kelly v Secretary, Department of Family and Community Services[6] Emmett JA stated at [43]:
“The fact of the injury arising out of or in the course of the employment is relevant, but not determinative of itself, since both s 4 and s 9A must be satisfied. Section 9A requires that the employment concerned be a substantial contributing factor to the injury. That use of the indefinite article admits of the possibility of other, and possibly non-employment-related, substantial contributing factors. Whilst the strength of the connection between the employment and the injury is the question in issue, the determination of that question is an evaluative one, leaving a broad area for the personal judgment of the fact finder. Being an evaluative matter involving questions
of impression and degree, a finding as to relative contributing factors is a finding of
[6] [2014] NSWCA 102.
fact (Badawi v Nexon Asia Pacific Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324; 75 NSWLR 503 at [48]).”
The majority judgment (Allsop P, Beazley and McColl JJA) in Badawi is summarised in the headnote to that decision, which states:
“1. The tests for an injury ‘arising out of’ employment under ss 4 and 9 and for employment being a ‘substantial contributing factor’ under s 9A must be considered separately. It is not sufficient to find that injury arose out of employment and to therefore conclude that the employment concerned was a substantial contributing factor to the injury: [85], [91].
2. The meaning of an injury ‘arising out of’ employment for the purpose of ss 4 and 9 is settled. An injury arises out of employment if the fact that the claimant was employed in the particular job caused, or to some material extent contributed to the injury. The phrase involves a causative element and is to be inferred from the facts as a matter of common sense: [73] - [76].
3. The phrase ‘substantial contributing factor’ in s 9A also involves a causative element. It is a different or added requirement to the ‘arising out of’ employment limb of ss 4 and 9, however the causal connection required for s 9A is not less stringent than that found in s 9. Mercer v ANZ Banking Group [2000] NSWCA 138; 48 NSWLR 740 not followed: [80] - [85].
4. For employment to be a ‘substantial contributing factor’ to the injury for the purposes of s 9A the causal connection must be ‘real and of substance’. The language of the section is not to be confused with interpretations such as ‘large’, ‘weighty’ or ‘predominant’. Mercer v ANZ Banking Group [2000] NSWCA 138; 48 NSWLR 740 not followed: [82]-[83], [107].
5. ‘Employment’ for the purposes of s 9A is the same ‘employment’ that is under consideration in ss 4 and 9: [91]
6. In determining whether worker’s employment was a substantial contributing factor the matters specified in s 9A(2) must be taken into account to the extent that they are relevant: [89].
7. Section 9A(2)(b) directs attention to the nature of the work performed and the particular tasks of that work and not to what the employee was doing at the actual time of the injury. It is an incorrect approach to consider some other activity other than the employment that had preceded the injury and then seek a linkage with the employment from the standpoint of that preceding activity: [95] – [98], [105].
8. The Presidential Member’s failure to consider s 9A(2)(b) by reference to the work performed and the particular tasks of that work involved a misconstruction of the provision and was an error in point of law: [99]-[100].
9. Once it is accepted that ‘substantial’ in this case means ‘in a manner that is real or of substance’ the only answer when the test is applied to the facts of this case is that the contribution of the appellant’s employment to her injury was real or of substance: [107].”
The medical evidence available to the Commission establishes uncontroversially that the motor vehicle accident on 23 December 2021 in which the applicant sustained her injuries occurred due to a syncopal event.
The earliest records, including the ambulance and hospital notes, recorded that the applicant reported feeling lightheaded and unwell whilst driving. The applicant felt she was going to faint and was about to pull over when the accident occurred.
The matter was investigated and no evidence was found of any medical condition to account for the syncopal episode.
The hospital notes and the referral to Dr Fois, recorded that there had been a similar episode whilst sitting, watching television, years earlier but this had been investigated by neurologist, Dr Van Den Bos, and diagnosed as related to a migraine. The applicant did not report any preceding headache, chest pain, visual change or palpitation prior to the syncope on
23 December 2021. Dr Fois diagnosed a blackout of uncertain cause.
Cardiologist, Dr Mooney also investigated the matter. The history taken by Dr Mooney was of a couple of pre-syncopal events in the past including the episode whilst sitting watching television, which had been diagnosed as related to a migraine, as well as an event whilst in an operating theatre. Dr Mooney noted that there had been no blackouts since the accident. Dr Mooney’s examinations and investigations were unremarkable and he said no alternative diagnosis had been identified. Dr Mooney also diagnosed an unexplained blackout with some features of neurocardiogenic syncope.
Although Dr Fois and Dr Mooney were unable to determine the cause of the syncope, the applicant’s medicolegal expert, Dr O’Neill has given an opinion that syncope of the kind the applicant experienced was usually an exaggerated physiological response to external stimuli, resulting in a fall in pulse and blood pressure to the point where there was a loss of consciousness. The relevant external stimuli in the present case were identified by Dr O’Neill as the applicant wearing PPE gear and a face mask on a hot day while driving for the purposes of her employment. Dr O’Neill expressed a definitive opinion that there was no doubt that the syncope would not have occurred were it not for the applicant’s work situation on that day.
No competing medical opinion on this issue has been presented to the Commission.
Notwithstanding the respondent’s submissions to the contrary, I am not satisfied that the medical evidence establishes that the applicant had a pre-existing condition or hereditary risk, which caused the syncopal event. While the evidence does indicate that the applicant had experienced pre-syncopal symptoms previously, they were attributed to factors, including a migraine and work in operating theatre, which were not relevant in the circumstances currently under consideration.
The particular nature and tasks of the applicant’s employment required her to wear the PPE equipment, including the mask. While Dr Mooney commented that the weather on the day of the accident was not unduly hot and humid, I accept that it occurred in the middle of the day in summer. I accept that the wearing of a plastic gown and face mask in those circumstances made the applicant feel hot and sweaty. The only reason the applicant was wearing the mask and gown was because she was performing her work duties.
The applicant has also given evidence that her work was extremely busy around the time of the accident due to the COVID 19 pandemic. The applicant was a frontline worker. The respondent’s business had undergone rapid growth and change and, as the sole owner and director of the business, the applicant’s workload had increased accordingly. The applicant’s evidence was that she was working 8 to 12 hours each day due to demand for the respondent’s services and staffing shortages. The applicant had been working nearly every day, including weekends since August 2021. I accept that that this volume work was likely to have taken a physical toll on the applicant, although it has not been specifically identified in the medical evidence as a factor which contributed to the syncopal event.

The accident occurred during the applicant’s normal working hours, whilst the applicant was in a vehicle she was required to drive in order to perform her work duties. I accept that the fact that the syncopal event occurred while the applicant was driving resulted in significant injuries which may not have occurred if the applicant had been stationary or in another location at the time.
Taking the above considerations into account, I am not satisfied that there is a likelihood that the applicant would have suffered a similar injury at about the same time or same stage in her life had she not been at work or had not worked in her employment.
The duration of the applicant’s employment with the respondent is not a factor which weighs in either party’s favour in considering whether employment was a substantial contributing factor to the injury. Similarly, it has not been suggested that the applicant’s lifestyle or her activities outside the workplace contributed to the injury.
Weighing the relevant considerations, I am satisfied that the applicant’s employment with the respondent was a substantial contributing factor to the injury for the purposes of s 9A of the 1987 Act.

Referral of the medical dispute

Having found that the applicant sustained a compensable injury, and noting that there is a medical dispute between the parties with regard to the degree of permanent impairment resulting from the injury, I am satisfied that it is appropriate for the matter to be remitted to the President for referral to a Medical Assessor to assess the degree of permanent impairment resulting from the injury.
At the arbitration hearing, the parties made submissions with regard to the evidence of incapacity resulting from the injury. I have not addressed that evidence or those submissions in this determination as I consider it appropriate to defer such consideration until the Medical Assessment Certificate is available[7]. The matter will be listed for a further preliminary conference at that time to deal with the outstanding work capacity dispute.
[7] See, for example, Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79 at [269].
The findings I have made in this Certificate of Determination are sufficient to entitle the applicant to compensation for her reasonably necessary medical and related treatment expenses in accordance with s 60 of the 1987 Act. A general order to that effect will be made.

[2025] NSWPIC 367

30 July 2025