Bjekic v State of New South Wales (Western Sydney Area Local Health District)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Bjekic v State of New South Wales (Western Sydney Area Local Health District) [2022] NSWPIC 214
APPLICANT:	Predrag Bjekic
RESPONDENT:	State of New South Wales (Western Sydney Area Local Health District)
MEMBER:	John Wynyard
DATE OF DECISION:	13 May 2022
CATCHWORDS:	WORKERS COMPENSATION - Applicant unable to wear personal protective equipment (mask) without aggravating his sinusitis; Hospital respondent unable therefore to continue employing him; whether NSW Health Orders can be waived; whether employment a substantial contributing factor or the main contributing factor; Held- applying Badawi and AV, employment neither substantial or main contributory factor; onus of proof not met; public policy during unprecedented emergency due to pandemic not shown to have any exceptions: award respondent.
DETERMINATIONS MADE:	Employment was neither a substantial contributing factor, nor the main contributing factor, to Mr Bjekic’s injury.
ORDERS MADE:	There is an award for the respondent.

STATEMENT OF REASONS

BACKGROUND

Predrag Bjekic, the applicant, brings an action for the payment of weekly compensation against State of New South Wales (Western Sydney Area Local Health District) in respect of an injury alleged to have occurred on 3 June 2021.
Dispute notices were issued and proceedings were subsequently commenced.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) did the applicant suffer an injury as defined in s 4 of the Workers Compensation Act 1987 (the 1987 Act);
(b) was employment a substantial contributing factor to the injury (s 9A of the 1987 Act), and
(c) was employment the main contributing factor to the injury if it were in the nature of a disease injury (s 4(b) of the 1987 Act).

PROCEDURE BEFORE THE COMMISSION

The matter was heard by way of video hearing at conciliation and arbitration on 18 March 2022. The applicant was represented by Mr Ross Hanrahan of counsel instructed by
Mr Wayne Keen from Keen Lawyers. The respondent was represented by Mr Greg Young of counsel instructed by Ms Melissa McDonald from Messrs Rankin Ellison.
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.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (the Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply and attached document, and
(c)    Application to Admit Late Documents (AALD) and attached documents from the respondent.

Oral evidence

Mr Young sought leave to cross-examine Mr Bjekic which was granted.

FINDINGS AND REASONS

Mr Bjekic was employed by the respondent as a security officer, working at Mt Druitt Hospital on a roster basis, working four days on and four days off with overtime since 2017.
In his statement dated 17 September 2021 he described his duties as including protecting people and property on the hospital grounds, providing information, patrolling and to observe CCTV footage.
Covid regulations were published by the NSW Government which mandated the wearing of masks by members of the public. Mr Bjekic suffers from sinusitis and found that the wearing of the mask aggravated that condition.
Mr Bjekic’s statement was barely legible and explained various events in a random and unchronological order. Relevantly, Mr Bjekic found that wearing his face mask was aggravating his sinusitis. He consulted a doctor and produced a certificate for light duties. He was moved to Cumberland Hospital where he did not wear a mask, but later returned to
Mt Druitt Hospital, where he would wear his mask if he saw a patient - otherwise he would wear it under his nose. However, he was told that he was required to wear the mask over his nose.
Mr Bjekic’s position at Mt Druitt Hospital was advertised and a meeting was held on 21 April 2021 in which he was told to apply for his position again. His application was refused but apparently he kept working at the hospital. The statement is most unclear as to the actual sequence of events, as he was still working at the hospital on 3 June 2021. Because he was aware he was being watched, he started to wear his mask which aggravated his condition.
Media releases from the NSW Government were lodged which related to the regulations for Greater Sydney. The release dated 23 June 2021 stated amongst other things:
“Masks will be compulsory in all indoor non-residential settings, including workplaces, and at organised outdoor events.”
There was also a colour co-ordinated danger level employed at the hospital. Mr Bejkic said that in late June 2021 the amber status switched to red and Mr Bjekic said that the Public Health Order meant that everyone had to wear a mask all the time on any grounds of the public hospital whether they were frontline health workers or not.
Mr Bjekic consulted Dr Peter Yu at Westmead Hospital in June 2021. Following receipt of
Dr Yu’s report dated 1 July 2021[1] by the respondent, Mr Bjekic received formal notification that he was deemed to be not capable of working because he could not wear a mask on his nose. He ceased work on 23 June 2021 and his claim for weekly compensation dates from 24 June 2021.

Cross examination
[1] ARD p 157

Leave was granted to Mr Young to cross-examine the applicant.
Mr Bjekic was asked whether wearing a cotton mask would have enabled him to do his full job. He said that he was happy to try and he offered to wear one to see how it worked out. He said he would have attempted to wear a cotton mask if one had been offered but he was already out of his job.
Mr Bjekic was asked if he could work as a security officer anywhere else, and he said that if he had to wear a mask he could not. At p 7 of the transcript the following appears:
“Q. Sir, I’ll ask you the question again. If you were outside the hospital system and you could wear a cotton mask, you could work full-time as a security officer. You’d agree with that, wouldn’t you?
A. As I said, I’m still speculating, but most likely, yes.”
Mr Bjekic was asked if he had recently been overseas, and he agreed that he had been to Europe from 2 February 2021 until the day before the hearing, 17 March 2021. Mr Bjekic disagreed that it was mandatory to wear a mask whilst travelling, saying he did not wear a mask on the plane all the time, as that was something that was flexible. He said that he did wear a mask to get onto the plane and would just wear it over his mouth. He said that other people on the plane did not wear it at all. At p 10 of the transcript the following was recorded:
“Q.    Sir, just finally, you understand that your employer asked you to wear a mask because of the global pandemic. You understand that, don’t you?
A.     I do. I do.
Q.     And that wearing of a mask was a, an important part of an overall health strategy, you’d accept that, wouldn’t you?
A.     I would accept that, yes.
Q.     .. And you’d accept that, working in a hospital, that the health of the community and patients are very important. You’d agree with that, wouldn’t you?
A.     Yes, I would agree with it.
Q.     And so you’d understand that the requirement to wear a mask by you was because of an overall government and community priority. You would agree with that, wouldn’t you?
A.     I would agree, yes.”

Submissions

Mr Hanrahan, whilst conceding the employer was enforcing the NSW Government Health Regulations, argued that the respondent had been inflexible in its enforcement of the mandate.
Mr Hanrahan submitted the employers were not able to avoid liability because of a mandate from another body. He said:
“The thrust of the applicant’s argument, Member, with respect to injury is that the employer is not able to avoid or escape its liability to pay compensation because some other authority requires it to behave in a particular way. It is a fact that because of the government mandate, the nature and conditions of the employment workplace have been changed, and it is the fact that that occurs at the workplace in the course of employment, or arising out of it, that we say the consequences upon Mr Bjekic are work related.”
Mr Bjekic was put at a disadvantage, it was submitted, as he would find it very difficult to find remuneration at the level he had been receiving.
Mr Hanrahan referred to the defence raised in the s 78 Notice, that employment was not the main contributing factor. Mr Hanrahan submitted that employment was the only contributing factor to the aggravation of Mr Bjekic’s underlying rhinitis.
In referring to the provisions of s 32A of the 1987 Act, Mr Hanrahan said that the result of the respondent’s actions was that Mr Bjekic was incapacitated on the open labour market. He had been working since 2014 as a health worker. He had worked at the State Library. He said that there was no evidence that the types of jobs that were available were not also requiring workers to wear personal protective equipment (PPE), including masks.
Mr Hanrahan conceded that Mr Bjekic had a capacity to earn but that any employment that was available would result in an economic loss in view of the high wages that the applicant was earning.

Mr Young

Mr Young submitted that there was a global pandemic and for the safety of the community, the respondent was compelled to enforce the health protocols issued by the Government that all staff wear face masks.
Mr Young said that this was not a direction imposed of the respondent’s own volition. He referred to Usher v Coffs Harbour City Council[2] as the nearest relevant authority he could find, although it was not applicable in the present factual circumstances.
[2] [2021] NSWPIC 196.
Mr Young said this was a novel case. There is no authority on point, but the basis of its defence was that the respondent had no choice in these exceptional circumstances. This factor was the basis of the s 78 declinature, and Mr Young likened the respondent’s position to that of a war time situation where an employee was hit by a guided missile because the employer was obeying a governmental wartime edict. There would be no liability in such a case, I understood him to submit, any more than the respondent was liable in the present factual circumstances. Mr Young accepted that Dr Yu’s view was that the applicant would have a medical problem if he had to wear the mask, but that employment was not the main cause of such an aggravation, as was asserted in the s 78 Notice, as I understood Mr Young.
As to incapacity, Mr Young stated that there were two problems. Firstly, the aggravation of Mr Bjekic’s condition was seasonal and therefore was not constant. Secondly Mr Bjekic had been diagnosed as COVID positive as mentioned on 14 September 2021 by his general practitioner Dr Chan.
The entry in Dr Chan’s notes[3] said that the medication sought by Mr Bjekic, Roxithromycin, will be useful for its anti-inflammatory properties but it may “confounded by the progression of the COVID infection”.
[3] ARD p 193.
With reference to s 32A Mr Young submitted that there were many employment opportunities such as in the library, in an airport or a supermarket where the applicant could work full time as a security officer.
Mr Young said that in any event there were overriding policy reasons why this application should be refused. I understood Mr Young to submit that it would be impossible for the effect desired by the government in its public health orders if as a result employers in the State were made liable for any worker who was unable to comply with the mandate.

Mr Hanrahan in reply

Mr Hanrahan in reply submitted that Usher was not distinguishable. It was not being suggested, Mr Hanrahan said, that if the government had not mandated the wearing of person protection equipment the hospital would not have done so itself. It did not make any difference from whence the order had come, be it government or employer, Mr Hanrahan said.
Mr Young was then granted leave to make submissions regarding Mr Bjekic’s capacity to earn. Mr Young submitted that there was a wide range of employment options available to him, within the broad definition of s 32A of the 1987 Act.
Leave was granted to Mr Hanrahan to respond, and he took a more precise view of s 32A. He submitted that Mr Bjekic’s search for further work would result in less remuneration than he had been receiving.

DISCUSSION

The s 78 Notice was dated 14 October 2021. It is common ground that Mr Bjekic’s condition consists of the aggravation of a pre-existing condition, namely sinusitis. The authors of the
s 78 Notice relied on the provisions of s 4(b)(ii) of the 1987 Act and s 9A of the 1987 Act. Section 4 of the 1987 Act provides:
“’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….”
In Usher, Member Carolyn Rimmer discussed the relevant authorities regarding this definition, and noted that an injury defined as a disease injury could nonetheless also sustain a finding of a personal injury.[4] The precise definition of Mr Bjekic’s injury is not strictly necessary, but complies with s 4(b)(ii) in my view. Section 9A of the 1987 Act provides relevantly:
“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.”
[4] Usher at [64]. Note the reference therein to Gibson should read “137” and not “13”.
The s 78 Notice was relevantly in the following terms:[5]
“We do not agree that your injury arose out of employment as required by section 4 of the Workers Compensation Act 1987.
We do not agree that your employment was a substantial contributing factor to your injury as required by section 9A of the Workers Compensation Act 187.
We do not agree that employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of your disease injury as required by section 4(b) of the Workers Compensation Act 1987.”
[5] ARD p 16.
As indicated, the dispute regarding whether an injurious event was suffered must be resolved in the applicant’s favour, as it was common ground that the wearing of a mask aggravated his pre-existing rhinitis. However, to be compensable, the employment concerned must either have been a substantial contributing factor, or in the case of disease, the main contributing factor to the injury.
In Usher, the issue was whether the administration of a flu injection had caused an injury to the applicant’s arm, and if so the nature of the injury. Member Rimmer found that the injury had been a personal injury by way of an adhesive capsulitis and in doing so gave a comprehensive survey of the relevant law relating to both injury and s 9A. The learned Member referred to the well-known authority of Badawi v Nexon Asia Pacific Pty Ltd[6], citing inter alia the majority at [82] thereof:
“…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...”
[6] [2009] NSWCA 324.
With regard to the concept applicable pursuant to s 4(b)(ii), “the main contributing factor” has been defined to be a more stringent test than that of “a substantial contributing factor”. In AV v AW[7] DP Snell considered the relevant authority and stated at [78]:
“The following may be taken from the above:
(a) The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b) 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. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c) 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.”
[7] [2020] NSWWCCPD 9.
It is common ground that the cause of the aggravation of Mr Bjekic’s rhinitis was the directive given to him that he was required to wear a mask. It was also accepted that the directive was issued by the NSW government, specifically, its Health Department. The relevant test therefore is one of causation. That test requires a consideration of the evidence overall, including non-work-related causes.
Mr Hanrahan posited a hypothesis that if the government had not passed the mandate regarding the wearing of masks, the respondent would certainly have done so, which, whilst being speculative, illustrates the problem facing the applicant.
The onus was on the applicant to establish that employment was the main contributing factor.[8] 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.
[8] AV at [103].
Whilst Mr Hanrahan submitted that the respondent could not avoid liability because “some other authority” required it to change the conditions under which its employees worked, it had to follow that there was some governmental exception to permit an employer to do so without breaking the law. Without such an exception it was implicit in Mr Hanrahan’s submission that any employer was free to ignore the health orders (that is, break the law) if one of its employees were being injured by the changed conditions necessitated by the Orders. Such an interpretation is untenable.
At the time of these events, no less than now, the world was in the grip of an unprecedented pandemic. To protect their populations, most governments passed Covid orders that severely restricted the free movement of people. One of the governments to enact such restrictive regulations was the Government of New South Wales. It was the view of those responsible for the safety and protection of the populace that emergency regulations had to be promulgated as a matter of public policy. These regulations amongst other things mandated the wearing of personal protective equipment in hospitals, including that where Mr Bjekic was working.
Mr Hanrahan was quite correct that the health orders caused Mr Bjekic’s working conditions to change, and Mr Hanrahan was correct that the Health Order has caused Mr Bjekic to wear a mask which aggravated his rhinitis. However the substantial cause of Mr Bjekic’s condition was not his employment, but the NSW health orders which changed the conditions of his employment where the employer was unable to waive compliance therewith.

The same reasoning applies to the question of whether employment was a substantial contributing factor. The effect of the health orders was to make the employment, which
Mr Bjekic had been performing since 2017, injurious. The nature of the employment up to then had not been injurious, and 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.
I have noted the submissions regarding capacity, but a determination is unnecessary in view of my finding. Similarly it is not necessary to comment on the cross-examination, beyond noting the admissions made by Mr Bjekic that he had work capacity.
Accordingly the Commission finds that employment was neither a substantial contributing factor, nor the main contributing factor to Mr Bjekic’s injury.
There is an award for the respondent.

[2022] NSWPIC 214

13 May 2022