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

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Bjekic v State of New South Wales (Western Sydney Area Local Health District) [2023] NSWPICPD 27
APPELLANT:	Predrag Bjekic
RESPONDENT:	State of New South Wales (Western Sydney Area Local Health District)
INSURER:	Employers Mutual Limited – as agent for the NSW Self Insurance Corporation
FILE NUMBER:	A1-W6221/21
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	10 May 2023
ORDERS MADE ON APPEAL:	1. The Member’s Certificate of Determination dated 13 May 2022 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – Section 4(b)(ii) of the Workers Compensation Act 1987 – whether the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the appellant’s sinusitis condition caused by the requirement to wear a surgical mask at work – AV v AW [2020] NSWWCCPD 9 discussed – alleged error by failing to take into account relevant matters and taking into account irrelevant considerations – Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 applied
HEARING:	6 April 2023
REPRESENTATION:	Appellant:
Mr R Hanrahan, counsel
Keen Lawyers
Respondent:
Mr G Young, counsel
Rankin Ellison Lawyers
DECISION UNDER APPEAL
MEMBER:	Mr J Wynyard
DATE OF Member’s DECISION:	13 May 2022

INTRODUCTION AND BACKGROUND

Mr Predrag Bjekic (the appellant) was employed by the State of New South Wales under the umbrella of Western Sydney Area Local Health District (the respondent) as a security officer at Mt Druitt Hospital. For a period of approximately two months in 2020, the appellant was unfit for work because of an undisputed work-related injury. He returned to work in October 2020, performing suitable duties as a COVID-19 Marshall.
In order to deal with the spread of COVID-19, a number of Public Health Orders and Directives were issued with respect to the requirement to wear a mask in all public hospitals and community settings.
In October 2020, the appellant was advised that he was required to wear a face mask for the duration of his shift as a COVID-19 Marshall. The appellant, who suffered from a pre-existing sinus condition, alleged that, as a result of the requirement to wear a mask, his sinus condition was aggravated. In order to alleviate his symptoms, the appellant would, from time to time, wear his mask under rather than over his nose.
When further restrictions came into effect on 23 June 2021, the appellant was stood down because of his inability to wear a mask covering his nose.
The appellant lodged a claim for compensation which was disputed by the respondent. In a dispute notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the respondent disputed that:
(a) the appellant had suffered an injury within the meaning of s 4 of the Workers Compensation Act 1987 (the 1987 Act);
(b) the appellant’s employment was a substantial contributing factor to the alleged injury, and
(c) if the injury was a disease within the meaning of s 4(b) of the 1987 Act, the appellant’s employment was not the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease.[1]
[1] Amended Application to Resolve a Dispute (Amended ARD), pp 14–20.
The matter came to arbitration before a Member of the Personal Injury Commission (the Commission) on 18 March 2022. The Member issued a Certificate of Determination on 13 May 2022, in which he found that 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 appellant appeals that decision.

WHETHER THE APPEAL SHOULD BE DETERMINED ‘ON THE PAPERS’

Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Both parties indicated that the appeal could be determined on the basis of the documents and their written submissions.
I have considered Procedural Directions PIC2 (Determination of matters ‘on the papers’) and WC3 (Presidential appeals and questions of law), the documents and submissions that are before me, and the submissions by the parties that the appeal could proceed to be determined on the basis of these documents. I was not satisfied that I had sufficient information to proceed ‘on the papers.’ A formal hearing was therefore arranged and took place on 6 April 2023. The hearing was required in order to provide the parties with the opportunity to address a number of concerns in respect of the grounds of appeal brought and the submissions made by the appellant. I also issued a Direction to the parties on 18 April 2023, calling for further written submissions in respect of certain Public Health Orders (discussed at [86]–[95] below) relating to the requirement to wear a face mask, one of which was referred to by the appellant in his appeal submissions.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

THE EVIDENCE

The appellant’s statement evidence

The appellant provided a statement dated 17 September 2021,[2] which was only slightly more legible than the copy of the statement annexed to the original Application to Resolve a Dispute (ARD). The appellant said that in October 2020, he was performing suitable duties at Mt Druitt Hospital as a COVID-19 Marshall and was asked to wear a face mask during his shift. The appellant said that, when wearing the mask, he found it difficult to breathe, his nose would become blocked, and he experienced a burning sensation. The appellant stated that he advised the Security Manager that he could not wear the mask for the entire shift, but the Security Manager told him he had to wear the mask, or he would be sent home.
[2] Amended ARD, pp 1–11.
The appellant said that he provided a medical certificate to the respondent and asked for suitable duties in a position where he was not required to wear a face mask. He said that he was then stood down until a position became available at Cumberland Hospital, where he was not required to wear the mask over his nose or wear it continuously.
It appears that the appellant then returned to Mt Druitt Hospital, where, up until 31 May 2021, he would usually wear his face mask under his nose, unless he was talking to a patient. The appellant stated that he was then told that he had been observed not wearing a mask. He said that he tried to wear the mask for longer, but it aggravated his sinus issues.
The appellant indicated that in late June 2021, a Public Health Order directed that everyone working on the grounds of a public hospital had to wear a mask. He said that he raised a suggestion that he could work outdoors, but the respondent told him he was not permitted on site without a mask. The respondent arranged for the appellant to be medically examined by Dr Peter Yu, occupational physician, who advised the respondent that the appellant was not able to wear a mask covering his nose because of his sinus condition. He was put off work and received sick leave payments. The appellant said that he could have worn a face shield or a cotton mask, but this was not acceptable to the respondent.
The appellant advised that he consulted a general practitioner, Dr Montana Ducic on 4 September 2021, who provided him with a certificate of capacity. He said he lodged a claim for workers compensation, which was denied by the respondent. The appellant asserted that there were no other factors that caused his injury, other than the long hours at work.
The appellant provided a further statement dated 1 December 2021, confirming the details of his earlier statement.[3] The appellant also gave oral evidence at the arbitration. That evidence is not relevant to this appeal.
[3] Amended ARD, p 11.

The documentary evidence

Because of the poor quality and presentation of the evidence contained in ARD, on 22 March 2022 the Member directed the appellant to file an amended ARD. The Member also directed the appellant to lodge evidence as to the NSW Government requirements for the security officers in the employ of the respondent and similar Area Health Services to wear masks. Under cover of a letter dated 30 March 2022, the appellant lodged the amended ARD and attachments, together with the following further documents:
(a)    New South Wales Government Health Media Release dated 24 July 2020;
(b)    New South Wales Government Health Media Release dated 23 June 2021;
(c)    New South Wales Government statement dated 20 August 2021;
(d)    New South Wales Government Face Mask Rules as at 25 February 2022, and
(e)    New South Wales Government COVID-19 Rules as at 11 March 2022.
The only reference to the contents of those documents made in the appellant’s covering letter was an observation that the documents showed that since July 2020 it was a consistent requirement that personnel wear masks in public hospitals.
The New South Wales Government Health Media Release dated 24 July 2020 stated that “NSW Health has directed all public hospitals that health workers must now wear a surgical mask if they are within 1.5m of patients.” The Media Release issued on 23 June 2021 indicated that “Masks will be compulsory in all indoor non-residential settings, including workplaces, and at organised outdoor events.”
The documents described by the appellant as “New South Wales Government statement dated 20 August 2021”, “Face Mask Rules (NSW Government) as of 25 February 2022” and “NSW Government COVID-19 Rules as of 11 March 2022” post-dated the appellant’s injury and are not of assistance in relation to the requirements that existed between October 2020 and 23 June 2021.
At the appeal hearing, the appellant conceded that the document “Public Health (COVID-19 Mandatory Face Coverings) Order (No 2) 2021”, referred to in his written appeal submissions, was not in evidence, despite the Member having directed the parties to “lodge evidence as to the NSW Government [requirements] for the respondent and similar area Health Services for security officers to wear masks”.[4]
[4] Member’s Direction dated 22 March 2022, [2].

The medical evidence

In a Certificate of Capacity dated 6 September 2021, Dr Montana Ducic, general practitioner, certified that the appellant suffered from “significant recurrent acute sinusitis”, aggravated by wearing a face mask at work.[5] On 8 October 2021, Dr Ducic reported to the respondent that the appellant’s sinusitis condition was aggravated at work when he was required to wear a surgical mask positioned over his mouth and nose.[6]
[5] Amended ARD, pp 28–30.
[6] Amended ARD, pp 56–57.
Dr Peter Yu, occupational physician, provided an opinion on liability at the request of the respondent.[7] Dr Yu took a long history of the appellant’s work activities and the requirements of the appellant’s position as a security officer. He recorded details of the appellant’s symptoms and performed an examination of the appellant’s nose, throat and breathing. Dr Yu provided a summary of the relevant parts of the New South Wales Health Clinical Excellence Commission’s manual (version 1.3) dated 25 June 2021, as it related to the appellant. In particular, Dr Yu noted that from 27 June 2021, health facilities in Greater Sydney were in a “red alert” and that the manual recorded that in those circumstances, all staff were to wear a surgical mask and a cloth mask was not acceptable.
[7] Amended ARD, pp 31–50.
Dr Yu considered that the appellant was not fit to perform his usual duties because he was unable to wear a face mask for more than 10 minutes and the risk of aggravation of his sinusitis was high, but the appellant was otherwise unconditionally fit for work. Dr Yu considered that the appellant would be able to wear a full-face shield.
Dr Kenneth Howison, ear, nose and throat surgeon, also provided an opinion at the request of the respondent.[8] In his report dated 8 October 2021, Dr Howison agreed with Dr Yu that the requirement to wear a face mask aggravated the appellant’s sinus condition and the appellant could work as a security officer if he was permitted to wear a full-face shield.
[8] Amended ARD, pp 58–62.
Dr Ducic referred the appellant to Professor Sanjay Swaminathan, immunologist, who reported to Dr Ducic on 30 August 2021.[9] Prof Swaminathan took a history that was consistent with the history recorded by the medical experts mentioned above. He queried whether the appellant might be able to wear a cloth mask under his surgical mask.
[9] Amended ARD, pp 54–55.
None of the medical experts addressed the question of whether the appellant’s employment was the main contributing factor to the aggravation of the appellant’s sinusitis.

THE MEMBER’S REASONS

The Member identified the issues in dispute and noted the documentary evidence, as well as the oral evidence given by the appellant under cross-examination by the respondent. He recited the facts, including that the NSW Government had mandated the wearing of masks and that the appellant alleged the wearing of the mask caused an aggravation of his pre-existing sinus condition.
The Member noted that the appellant consulted his general practitioner, who issued the appellant with a certificate of capacity to perform suitable duties. The Member observed that the appellant was transferred to Cumberland Hospital, where he was not required to wear a mask, but when the appellant was transferred back to Mr Druitt Hospital, he was reprimanded for not placing the mask over his nose. The Member noted that the evidence as to what transpired after the appellant returned to Mt Druitt Hospital was unclear. He referred to a media release issued by the NSW Government and the appellant’s evidence that there was a subsequent Public Health Order requiring all staff to wear masks while in the grounds of any hospital, regardless of their position.
The Member recorded that the appellant attended Dr Peter Yu at Westmead Hospital in June 2021, following which the appellant was advised that he was considered not to be capable of working because he could not wear a mask covering his nose. The Member said that the appellant ceased work on 23 June 2021 and claimed compensation from 24 June 2021.
The Member summarised the appellant’s responses to questions put to him in cross-examination. He further summarised the submissions made by each party.
The Member referred to the decision of Member Rimmer in Usher v Coffs Harbour City Council.[10] In that case, Member Rimmer discussed the definitions of injury within the meaning of s 4 of the 1987 Act and observed that an injury could be a personal injury as defined by s 4(a) of the 1987 Act as well as a disease injury, within the meaning of s 4(b) of the 1987 Act. The Member noted that in the present matter, it was common ground between the parties that wearing a mask aggravated the appellant’s pre-existing sinusitis and said that it was his view that the injury fell within the definition of a disease injury in the nature of an aggravation, acceleration, exacerbation or deterioration of a disease in accordance with s 4(b)(ii) of the 1987 Act.
[10] [2021] NSWPIC 196 (Usher).
The Member referred to the question of whether the appellant’s employment was a substantial contributing factor to the injury pursuant to s 9A of the 1987 Act. He again referred to Usher, in which Member Rimmer relied on the following passage from the plurality in Badawi v Nexon Asia Pacific Pty Ltd:[11]
“The words of the statute should be adhered to: ‘a substantial contributing factor’. The ‘proper link’ in the legislative context was a causal connection expressed by the words ‘a substantial contributing factor’, meaning one that was real and of substance.”[12]
[11] [2009] NSWCA 324 (Badawi).
[12] Badawi, [82].
The Member also referred to the test of whether the employment was the main contributing factor to the injury, as discussed by Snell DP in AV v AW.[13]
[13] [2020] NSWWCCPD 9 (AV v AW).
The Member observed that it was accepted by the parties that the mandate for wearing a mask was a directive of the NSW Government’s Department of Health. The Member said that the relevant test was one of causation, which required an overall consideration of the evidence and whether there were any non-work-related causes. He said that the onus rested upon the appellant to satisfy him that his employment was the main contributing factor. He remarked that he had not been referred to any authority which allowed the employer to waive the requirements of the directive on medical grounds.
The Member noted the appellant’s submissions that the appellant’s working conditions had been changed by the directive, but said, however, that the “substantial cause” of the appellant’s injury was not his employment. The Member considered that the substantial cause was the directive issued by NSW Health and imposed upon the respondent.
The Member observed that the same reasoning applied to the question of whether the employment was a substantial contributing factor to the injury. He reasoned that the appellant had been employed by the respondent since 2017 and the mandate to wear a mask caused his employment to become injurious, which it had not been previously. The Member concluded that:
“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.”[14]
[14] Bjekic v State of New South Wales (Western Sydney Area Local Health District) [2022] NSWPIC 214 (reasons), [48].
In the light of that finding, the Member considered that it was not necessary to determine the appellant’s capacity for work. The Member concluded that the appellant’s employment was neither a substantial contributing factor nor the main contributing factor to the appellant’s injury and entered an award for the respondent.
The Certificate of Determination issued on 13 May 2022 records:
“The Commission finds:
1. Employment was neither a substantial contributing factor, nor the main contributing factor, to [the appellant’s] injury.
The Commission orders:
2. There is an award for the respondent.”

LEGISLATION

Section 4 of the 1987 Act relevantly provides:
“Definition of ‘injury’ (cf former s 6 (1))
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, …”.
Section 9A of the 1987 Act relevantly provides:
“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) …”.

GROUNDS OF APPEAL

In the Application to Appeal Against Decision of Member, the grounds of appeal, which were not drafted by counsel, alleged four grounds of appeal, expressed as follows:
(a) Ground One: the Member was in error to conclude that the appellant had not suffered an injury pursuant to s 4 of the 1987 Act as properly understood, arising out of or in the course of his employment;
(b)    Ground Two: the Member was in error to conclude that the respondent was in any way different to the mandating authority that required the appellant to wear a mask during the COVID-19 pandemic;
(c)    Ground Three: the Member was in error to conclude that the appellant agreed that there was an issue in dispute concerning s 9A of the 1987 Act, and
(d)    Ground Four: the Member was in error in taking into account irrelevant considerations when making his decision and failed to take into account relevant considerations.
During the oral hearing, after a lengthy discussion about the issues raised in the grounds of appeal, counsel for the appellant sought to amend the grounds of appeal. By consent, Ground Three was amended to read:
“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.”[15]
[15] Transcript of Appeal Proceedings 6 April 2023 (T), T 18.15–18.
The appellant further advised that Ground One, which was contrary to the finding by the Member at [44] of his reasons, was not pressed,[16] and, as Ground Two asserted error on the basis of a matter not raised before the Member, that ground was also not pressed.[17]
[16] T 19.9–19.
[17] T 8.34–T 9.1.

SUBMISSIONS

It is not necessary to review the submissions made in respect of Grounds One and Two, which were not pressed.
Both the appellant’s written submissions and those of the respondent were provided prior to the amendment to grounds of appeal. Where they appear relevant to the remaining grounds, they are summarised below. Both parties provided submissions in response to my Direction issued on 18 April 2023. Those submissions are noted and discussed at [86]–[95] below.

Ground Three: 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 appellant’s written submissions

The appellant asserts that there was no dispute “recorded or advanced by either party” in respect of s 9A of the 1987 Act and says that the appellant relied upon s 4(b)(ii) of the 1987 Act, making submissions that the appellant’s employment was the main, if not the only, contributing factor. The appellant submits that the Member “introduced a dispute that was not advanced by either party in order to justify and reinforce his erroneous decision in relation to causation.”[18]
[18] Appellant’s submissions, [14].
The appellant refers to Badawi. He submits that the Court of Appeal found that if the worker was employed in a particular job that caused or materially contributed to the injury then the injury arose out of the employment. Further, if the conduct occurred in the course of employment, in the absence of misconduct, the only reasonable conclusion is that the employment was a substantial contributing factor to the injury.
The appellant submits that in this case, the requirement to wear a mask was “real and substantial.” He points out that the appellant had no alternative but to wear the mask so that it was a necessity that arose in the course of his employment. The appellant submits that there was no dispute that wearing the mask caused the injury to the appellant and that s 4(b)(ii) of the 1987 Act was satisfied because the employment was the main contributing factor to the injury.

The appellant’s oral submissions

The appellant submits that the “real” issue was whether or not the appellant’s employment was the main contributing factor to the injury, which it was because there were no other competing issues. The appellant describes the respondent’s position as unfair and illogical because wearing the mask was a necessary condition of his employment and thus was the only contributing factor. The appellant submits that, while the mandate was issued externally, the order to comply came through the respondent and the respondent did nothing to allow an exemption, which was available to the appellant, or to modify the requirement because of the appellant’s medical condition. The appellant reiterates that the employment was the only factor to the injury and the fact that he was required to wear the mask to do the job was sufficient to satisfy the test of the main contributing factor.

The respondent’s written submissions

The respondent submits that, in this case, the appellant’s injury was an aggravation of a disease within the meaning of s 4(b)(ii) of the 1987 Act and the test of causation is that of the main contributing factor, not the substantial contributing factor under s 9A of the 1987 Act. The respondent contends that the Member correctly applied the test enunciated by Snell DP in AV v AW, that is, that the test “involves an evaluative process … both work and non-work related.”
The respondent reiterates that the Public Health Order was issued by the Minister and not the respondent, who is the State of New South Wales. The respondent refers to the Member’s observation that the Minister’s powers concern the wider interest of public health and submits that the Member correctly applied the test for “main contributing factor” in AV v AW in placing importance on the non-work related causative factor.

The respondent’s oral submissions

The respondent relied upon its submissions already made.

Ground Four: The Member was in error in taking into account irrelevant considerations when making his decision and failed to take into account relevant considerations

The appellant’s written submissions

The appellant asserts that the Member referred to a “variety of matters” but he failed to indicate their relevance to his decision. He refers to the Member’s criticism of the clarity of the appellant’s statement but “failed to indicate whether or how this affected his decision.”[19] The appellant adds that the Member also took into account that there was no exception to the mandate to wear a mask, but failed to invite the parties to submit in relation to the Public Health (COVID-19 Mandatory Face Coverings) Order (No 2) 2021, Part 3, clause 7, which made provision for exemption applications to the Minister for Health.
[19] Appellant’s submissions, [17].

The appellant’s oral submissions

The appellant submits that the clarity of the appellant’s statement was irrelevant to the issues for determination. He says that it is not apparent what consequences the Member’s criticism had to the decision, and that the Member failed to disclose his reasoning process as to the relevance of that issue to his determination. The appellant submits that “[i]t’s better left unsaid if it’s not going to affect his decision”[20] and the Member should have explained what consequences the comment had on his thinking and how it contributed to his decision. The appellant asserts that the comment was an irrelevant consideration that appears to have been taken into account.
[20] T 10.29–30.
The appellant concedes that the Public Health (COVID-19 Mandatory Face Coverings) Order (No 2) 2021, Part 3, clause 7 was not in evidence but submits that it was a public document and the Member should have informed himself about it. The appellant points to the Member’s comment that there was probably not an exemption available to the appellant. The appellant submits that the Member did not raise it with the parties so that the parties would have the opportunity to direct the Member to the part of the Order. The appellant says that the Member’s assumption that there was no exemption appears to have been part of the Member’s weighing up process of reasoning. The appellant maintains that it was the respondent who indicated that there would be no exemptions and refused to consider the appellant wearing a cotton mask. The appellant refers to the documents filed by him on 30 March 2022 at the request of the Member and submits that the New South Wales Media Release dated 23 June 2021 set out the lawful reasons for not wearing a mask, which included illness. The appellant contends that the Member should have raised that with the parties.

The respondent’s written submissions

The respondent submits that it is not clear as to how the Member’s criticisms of the appellant’s statement are said to have been taken into account by the Member in finding that the appellant’s employment was not the main contributing factor to the injury. The respondent asserts that the Member did not make any adverse findings as to the appellant’s credit or base his findings of causation on those criticisms.
The respondent refers to the appellant’s submission that the Member failed to give him the opportunity to make submissions as to whether he was exempt from the Public Health Order. The respondent says that the appellant bears the onus of proof, and it is not incumbent upon the Member to provide advice “from the bench” or tell the appellant how to run his case. The respondent points out that, at arbitration, the appellant did not:
(a)    refer to the exemption provisions in the Public Health Orders;
(b)    explain how the medical evidence may have satisfied the exemption criteria, or
(c)    provide any evidence that the appellant advised the respondent that he was exempt from the Orders.
The respondent points out that even after the Member issued a direction to the parties to file further material, the appellant did not file any evidence that he was exempt from the Public Health Orders. The respondent further points out that the Member’s determination on causation was a finding of fact, and should not be disturbed if, on the evidence, his conclusion was open to him, citing Branir Pty Limited v Owston Nominees (No 2) Pty Limited[21] and Andersen v J & M Predl Pty Limited.[22]
[21] [2001] FCA 1833.
[22] [2018] NSWWCCPD 40.

The respondent’s oral submissions

The respondent reiterates its submissions that the appellant bears the onus of proof, and that the appellant did not raise at arbitration a submission about any exemption that may have been available to the appellant. Further, there was no evidence that the appellant was exempt.
The respondent submits that the Member did not make any findings in relation to the appellant’s credit, so that the Member’s comments about the appellant’s statement were irrelevant to the question of what was the main contributing factor to the injury.
The respondent maintains that if the appellant sought to rely on an exemption from the mask mandate, he ought to have raised that point with the Member, rather than expect the Member to make out a case for the appellant.

THE RELIEF SOUGHT

The appellant seeks to have the Member’s Certificate of Determination revoked. The respondent seeks an order that the appeal be dismissed.

CONSIDERATION

The nature of the appeal

The question of whether the appellant’s employment was the main contributing factor to the aggravation of his sinusitis is a question of fact. The factors that enable a Presidential Member to intervene in a factual determination are well known within this jurisdiction, and were helpfully summarised by Roche DP in Raulston v Toll Pty Ltd[23] as follows:
[23] [2011] NSWWCCPD 25 (Raulston).
“…
(a) [A Member], though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Member] that it can be said that his [or her] conclusion was wrong’.
(b) Having found the primary facts, the [Member] may draw a particular inference from them. Even here the ‘fact of the [Member’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the [Member] was wrong.
(c) It may be shown that a [Member] was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Member] is so preponderant in the opinion of the appellate court that the [Member’s] decision is wrong.

The decision of Allsop J (as his Honour then was) in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd Drummond and Mansfield JJ agreeing) is also instructive in the context of the need to establish error. His Honour observed (at [28]):
‘in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.’”[24]
[24] Raulston, [19]–[20].

Thus, in order for the appellant to succeed, he must identify the kind of error or errors described in Raulston that occurred in the Member’s decision-making process. Of course, any identified error must have affected the outcome of the dispute.[25]
[25] Northern NSW Local Health Network v Heggie [2013] NSWCA 255, [184].

The Public Health Orders, media releases and related documents

The appellant states that, as a result of a Public Health Order issued in late June 2021, everyone working on the grounds of a public hospital was required to wear a mask. No evidence of any such document was before the Member and the Member was not referred to any such Order. The Member directed the parties to file evidence as to the requirement to wear masks as at 23 June 2021 (the appellant’s date of injury). The appellant filed five documents under cover of his letter dated 30 March 2022, referred to above at [18].
The first of those documents, the New South Wales Government Health Media Release dated 24 July 2020 was issued before the appellant’s return to Mt Druitt Hospital in October 2020, when he was required to wear a mask. The media release stated that NSW Health directed that health workers must now wear a surgical mask in all public hospitals if they are within 1.5 metres of patients.
The media release issued on 23 June 2021 indicated that “Masks will be compulsory in all indoor non-residential settings, including workplaces, and at organised outdoor events.”
At the oral hearing of the appeal, the appellant indicated that he relied upon the New South Wales Government Health Media Release dated 23 June 2021 and the exemptions provided. The only document in the bundle annexed to the appellant’s letter of 30 March 2022 that provided for exemptions was the six-page document relating to “Face Mask Rules as at 25 February 2022” which, at page 4, provided that a person was not required to wear a mask “if you have an illness, condition or disability that makes wearing a mask unsuitable.” I have already indicated that that document is not relevant as it significantly post-dates the appellant’s injury.
In his letter dated 30 March 2022 enclosing the various documents listed at [18] above, the appellant submitted to the Member that the documents disclosed that since July 2020 it was a consistent requirement that personnel wear masks in public hospitals. I note that the documents referred to were issued by or on behalf of the New South Wales Government, not the respondent.

The appeal grounds

Ground Three: 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

Whether the appellant’s employment was the main contributing factor to the aggravation of his sinusitis is a more stringent test than that of whether the employment was a substantial contributing factor to the injury, and it is not sufficient to merely show that the injury arose out of or in the course of employment. As Snell DP observed in AV v AW:
“the requirement in s 4(b) inserted by the 2012 amendments, that employment be ‘the main contributing factor’ (emphasis added) permits the existence of only one such factor.”[26]
[26] AV v AW, [66].
Snell DP went on to observe that:
“In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”
And:
“The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related.”[27]
[27] AV v AW, [78].
The appellant asserts error on the part of the Member in that he “introduced a dispute [in respect of s 9A of the 1987 Act] that was not advanced by either party in order to justify and reinforce his erroneous decision in relation to causation.” As the appellant conceded, although neither party chose to make submissions in respect of s 9A, the question of whether the employment was a substantial contributing factor was raised as an issue in the dispute notice issued by the respondent. Both parties proceeded on the basis that the appellant’s injury was an aggravation of a disease and submitted accordingly, however, it is not an error for the Member to have dealt with an issue raised which ultimately was not a matter that was necessary to the ultimate outcome.
The appellant contends that the Member’s purpose was “to justify and reinforce his erroneous decision in relation to causation.” I reject that submission. As discussed above, the test of “the main contributing factor” is more stringent than the test of “a substantial contributing factor”. How a finding that the employment was not a substantial contributing factor justifies or reinforces a finding that the employment was not the main contributing factor was not explained and the assertion that this consideration influenced the Member’s ultimate conclusion is not apparent from a reading of the Member’s statement of reasons.
Following this criticism of the Member for dealing with s 9A, the appellant makes submissions as to the principles established in Badawi, a decision about s 9A which did not involve consideration of s 4(b)(ii) or the requirement that the employment be the main contributing factor. The appellant submits that there was no dispute that the appellant was required to wear a mask and wearing the mask caused the appellant injury. The appellant says that the requirement was “real and substantial” so that s 4(b)(ii) of the 1987 Act was satisfied because the employment was the main contributing factor to the injury.
The consideration of whether the requirement was “real and substantial”, which was a term applied in Badawi about a substantial contributing factor, is not sufficient to establish the necessary element within s 4(b)(ii) of the 1987 Act.
The appellant asserts that the appellant’s employment was the only contributing factor.
The Member’s reasons in respect of his ultimate finding that the appellant’s employment was not the main contributing factor were sparse, but the appellant does not challenge the outcome on the basis of a failure to give reasons for that conclusion. This ground of appeal is limited to the assertion that the Member’s factual conclusion was wrong.
The Member summarised the principles enunciated by Snell DP in AV v AW. He observed that the onus rested on the appellant and the relevant test was one of causation, which involved a consideration of all of the evidence, including the non-work-related factors. He noted that it was “common ground” that the mandating authority was the New South Wales Government, who issued “restrictive regulations.” That observation was ultimately not challenged by the appellant. The Member concluded that, while the injury occurred in the course of the appellant’s employment, the “substantial” cause of the appellant’s injury was not the appellant’s employment, but was the New South Wales Government, which imposed upon the respondent the change in the appellant’s employment.

It is 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 conclusion was arrived at by noting the “common ground” between the parties, a consideration of the available evidence, and the application of the principles enunciated in AV v AW. There is no error in that approach.
Section 352(5) of the 1998 Act provides that an appeal is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appellant has failed to establish error on the part of the Member in concluding that the appellant’s employment was not the main contributing factor to the injury and this ground of appeal fails.

Ground Four: The Member was in error in taking into account irrelevant considerations when making his decision and failed to take into account relevant considerations

The appellant points to the Member’s criticism of the quality of the appellant’s statement and asserts that it is not apparent how this criticism may have affected the outcome. It is difficult to discern from the appellant’s submission the identifiable error upon which the appellant relies when he concedes that it is not apparent how the criticism was material to the Member’s ultimate decision. It may be that from time to time a primary decision-maker will comment upon the state of the evidence and those comments do not comprise of a factor in accepting or rejecting the evidence. In the circumstances of this case, the appellant’s statement dated 17 September 2021 annexed to the ARD was in places illegible and the copy annexed to the amended ARD was also difficult to read. The Commission’s Procedural Direction PIC3 – Documents and late documents requires that the parties and legal representatives ensure that copies of documents lodged in proceedings are clear, sharp and legible. I do not consider that an observation about the poor quality of a document, the contents of which the Member was required to take into account, is sufficient to say that the Member erred in fact, law or discretion by making such a comment in circumstances where it has no apparent effect on the Member’s decision.
The appellant says that the Member further erred by taking into account that there was no exemption to the mask mandate but failed to invite the parties to submit on the Public Health (COVID-19 Mandatory Face Coverings) Order (No 2) 2021, Part 3, clause 7. That document was not in evidence. The Member did not determine that there was no exemption to the mask mandate. The Member’s observation was as follows:
“I was not referred 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, which I doubt would exist.”[28]
[28] Reasons, [44].
That observation that there was no evidence before him that compliance could be waived by the respondent was undoubtedly correct. There was no evidence before the Member that the respondent had the power to waive the requirement that the appellant wear a mask. The only document in the bundle lodged by the appellant on 30 March 2022 providing for exemptions was the six-page document relating to “Face Mask Rules as at 25 February 2022” which, at page 4, provided that a person was not required to wear a mask “if you have an illness, condition or disability that makes wearing a mask unsuitable.” That document significantly post-dated the appellant’s injury.
The appellant further asserts that the Member erred by failing to invite the parties to make submissions relevant to the Public Health (COVID-19 Mandatory Face Coverings) Order (No 2) 2021 commencing on 2 April 2021, and the Member ought to have taken judicial notice of that document.
Section 43(2) of the 2020 Act provides that the Commission “is not bound by the rules of evidence but may inform itself on any matter in the manner the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.”
In order to give proper consideration to this submission, I formed the view that the following Public Health Orders should be reviewed.
(a)    the Public Health (COVID-19 Mandatory Face Coverings) Order 2021, commencing on 3 January 2021;
(b)    the Public Health (COVID-19 Mandatory Face Coverings) Order (No 2) 2021 commencing on 1 April 2021, and
(c)    the Public Health (COVID-19 Mandatory Face Coverings) Order (No 3) 2021, commencing on 26 June 2021.
In the Direction issued by me on 18 April 2023 (after the oral hearing) the parties were given the opportunity to make submissions about the evidentiary value of those documents.
Accordingly, the appellant said that:
(a)    his appeal submissions referred to the Public Health (COVID-19 Greater Sydney) Order (No 2) 2021 (the Greater Sydney Order), as well as the Public Health (COVID-19 Mandatory Face Coverings) Order (No 2) 2021 (the Mandatory Face Coverings Order);
(b)    clause 15 of the Greater Sydney Order appeared to be a directive that a person must wear a fitted face covering “in any indoor area of non-residential premises”;
(c)    there were certain exemptions available, and
(d)    the Mandatory Face Coverings Order also provided for exemptions.
The appellant adds that the respondent, of its own volition, applied the Order relating to other workers to its own staff. There is no evidence that the respondent imposed that Order on its staff.
In its submissions on appeal dealing with the Mandatory Face Coverings Order, the appellant ultimately submits that it did not appear that the direction to wear face coverings contained in clause 5 of the Face Coverings Order applied to the appellant. The respondent also submits that the Orders do not apply to the appellant and the respondent’s requirement to implement mandatory wearing of surgical masks was at the direction of the Clinical Excellence Commission.
Both parties annexed a copy of version 3.1 of the New South Wales Health Clinical Excellence Commission’s COVID-19 Infection Prevention and Control manual to their submissions. No application was made to have that document adduced into evidence either before the Member or on appeal. In any event, the document, which is dated 23 February 2023, was not the manual relevant to the time of the appellant’s injury. I note that Dr Yu referred to an earlier version of the manual, version 1.3, which was dated 26 June 2021.
The appellant points to Part 3, clause 7 of the Mandatory Face Coverings Order, which made provision for exemption applications to be made to the Minister for Health. The clause does not assist the appellant. Firstly, the document was not in evidence; secondly, the appellant did not raise an issue before the Member that the appellant was exempt; thirdly, the power to grant an exemption rested with the Minister for Health and not the respondent, and fourthly there was no evidence that the appellant made such application to the Minister.
Additionally, the Public Health (COVID-19 Mandatory Face Coverings) Order 2021 and the Public Health (COVID-19 Mandatory Face Coverings) Order (No 2) 2021 indicated at clause 5 of each Order that the Order applied to business and retail premises, which, it said, did not include premises that are used for the purpose of providing health services. The appellant conceded in his additional submissions that the Order “suggested” that it did not apply to the appellant. The Member cannot have fallen into error by failing to consider the document or by failing to give the appellant the opportunity to make submissions about it when the document was not relevant to the appellant or the respondent.
In any event, as the respondent submits, it is not incumbent upon the Member to research what evidence might be available to assist the appellant’s case. In Paul Segaert Pty Limited trading as Lidco v Narayan,[29] Roche DP discussed the former Worker’s Compensation Commission’s power to inform itself and observed:
“The power should be used sparingly and cautiously. Usually, but not always, this will mean that the power should only be used when it is considered necessary to enable the particular matter to be determined according to its “substantial merits” (section 354(3)). [Members] should always be vigilant not to be, or give the appearance of being, an advocate for one side.”
[29] [2006] NSWWCCPD 296.
That, together with the fact that the Public Health (COVID-19 Mandatory Face Coverings) Order (No 2) 2021 was not in evidence is sufficient to dispose of the argument that the parties should have been invited to make submissions in respect of it.
The appellant contends that the New South Wales Media Release dated 23 June 2021 set out the lawful reasons for not wearing a mask, which included illness. The appellant contends that the Member should have raised that with the parties. That document does not refer to “lawful reasons for not wearing a mask.” It refers to further significant restrictions being introduced in Greater Sydney and in fact states that “Masks will be compulsory in all indoor non-residential settings, including workplaces, and at organised outdoor events.”
The appellant’s complaint that the Member erred by taking into account irrelevant considerations and failing to take into account relevant considerations is not made out and the ground of appeal fails.

CONCLUSION

A component of the purported errors raised in this appeal relates to matters that were not raised before the Member, or evidence that was not before the Member. It is not an error for a Member to fail to deal with matters that were not raised before him.[30]
[30] Brambles Industries Ltd v Bell [2010] NSWCA 162.
The appellant has not established that the Member erred by taking into account irrelevant matters, or overlooking relevant matters, or that his factual conclusions reached on the basis of the primary facts before him were erroneous. In the absence of the kind of error described in Raulston, the Member’s conclusion that the appellant’s employment was not the main contributing factor to the injury is confirmed.

DECISION

The Member’s Certificate of Determination dated 13 May 2022 is confirmed.

Elizabeth Wood
Deputy President

10 May 2023