Another South Australian worker has been successful in securing workers compensation benefits after being injured by the COVID-19 vaccine.

Whereas in previous cases the issue was whether a vaccine injury could be said to ‘arise from employment,’ on this occasion it wasn’t disputed that the worker was required to have the vaccine by her employer and so any injury that resulted from it would give rise to an entitlement to workers compensation.  The question was whether her conditions of pericarditis and pulmonary emboli (which occurs when a clot travels to the heart and causes a blockage or obstruction in pulmonary circulation or the pulmonary arteries) had been caused by the vaccine.  The employer claimed that her symptoms arose too long after she was vaccinated for that to have been the cause.

 

INJURIES SUSTAINED FROM THE VACCINE

The worker, who was employed as a nurse educator by Women’s & Children’s Health Network, received injuries to her heart and lungs after receiving a dose of the Pfizer mRNA COVID-19 vaccine in September 2021.  She had a permanent part-time position at the Mallee Ward which was identified by the WCHN as a COVID-19 infection pathway and so she was required to be fully vaccinated.

She had her first dose of the vaccine on 6 September 2021 and did not experience any effects. In fact, she had not previously been vaccinated for the virus because her husband had experienced an adverse reaction to his first dose. After the second dose on 28 September 2021, however, she claimed that she woke the next day feeling fatigued and had a headache.  Later that day she said she developed chills, fever, sore throat, muscle ache, joint pain, intermittent chest pain and shortness of breath.  Most of these symptoms resolved in the following few weeks but the intermittent chest pain, shortness of breath and swelling and pain in her finger joints persisted. Nevertheless, she continued to work until February 2022.

At that time she was told by her employer that she was required to have a third dose of the vaccine and when she informed them that she was not willing to do so she was asked to take leave. This was because she had been medically advised to defer having a third dose following the symptoms experienced after the second.

She had written to her employer to express concerns about having the third dose and as a result of that her appointment for the vaccination was moved from 17 March 2022 to 12 April 2022, but did not proceed on that date because by that time she was being treated for COVID-19 symptoms.

 

 

According to the worker, her general practitioner of 20 years had dismissed her concerns about the vaccine and had told her that she also had concerns but had, “put her big girl pants on“ and been vaccinated.  (The GP denied much of what the worker said she was told).  The worker gave evidence that her general practitioner told her that her parents would likely die if they were not vaccinated against COVID-19.  She said that her siblings were opposed to the vaccine and had made their views known to the rest of the family.  She said she felt unsupported by her GP and found her attitude quite distressing. When she saw her GP in November 2021 (in order to obtain a letter to enable her to work from home as she cared for her parents and they were at risk of harm if they contracted the virus) she claimed that the doctor, “went on about my parents [not being vaccinated] again“ and “got very exasperated with me again.”  She gave evidence that when she next saw her GP in November 2021 the doctor said, “I’m sick of hearing about symptoms related to Covid vaccines.”

On 28 March 2022 she saw a cardiologist and was diagnosed with “multiple pulmonary emboli on VQ scan and probable pericarditis resolving on cardiac MRI and echocardiogram.”  Due to the fact that the symptoms commenced soon after the second vaccination it was the opinion of the cardiologist that they were caused by the vaccine.

In May 2022 the nurse claimed compensation which was rejected for a number of reasons including the fact that the symptoms did not manifest until months after the second dose was administered.

On 9 February 2022 she began to experience chest pain and called an ambulance to go to Flinders Medical Centre.  After tests were performed she was told that she had pulled a muscle in her chest. The next day she saw another doctor but said she felt she was “fobbed off“.  A week later she was asked to leave work because she had not had the third dose of the vaccine.

At the time of the hearing she was still having chest pain and becoming breathless at some stage every day.  Lying down on the bed would make her breathlessness worse and she continued to have pain in her hands.  She had been prescribed a course of prednisolone which did not take away the chest pain but did lead to weight gain, a painful swelling on her left middle finger and apparently persistent and severe gastric symptoms and body rash. In addition she was noted to have elevated blood pressure following the prednisone trial and was taking medication to manage that.

Various medical specialists were called to provide an opinion as to the likely cause of the workers conditions.

 

“Having both an embolus and pericarditis together without the vaccine
being implicated as the cause of both as most unlikely.”

 

Evidence was given by a respiratory and sleep physician to whom the worker had been referred, who stated that imaging in April 2022 showed a pulmonary embolus which he considered to be caused by the second dose of the vaccine.  The physician considered that pericarditis was a likely cause of the workers symptoms.  He said that the chance of having both an embolus and pericarditis together without the vaccine being implicated as the cause of both was most unlikely.

A cardiologist told the tribunal that she had treated approximately 10 patients whom she thought had contracted either pericarditis or myocarditis from a COVID-19 vaccine and confirmed that the worker’s diagnosis was probable pericarditis and multiple pulmonary emboli caused by the vaccine. She said that she had seen more than 100 patients who developed pulmonary emboli from COVID-19 vaccinations or infections and the symptom of chest pain was common to all of them.

On the key question of whether symptoms would have been apparent sooner than 12 months after the vaccine was administered she said that while this was possible the more likely explanation would be that the worker didn’t recognise the symptoms when they commenced. She said it would be unusual if there were no symptoms for two months after the vaccination because the onset of cardiac symptoms is usually within a week and most cases within days.

Notably another cardiologist on the question of any delay in the onset of symptoms following the vaccination said that while the further the onset of symptoms is from the administration of the vaccination, the less likely there is a connection, he went on to say, “in saying that, we don’t know much about the COVID vaccines yet and we’re still learning things all the time.”

Despite the worker’s evidence of having mentioned symptoms to her GP shortly after the second vaccination, the Judge noted that even though she saw her GP on 9 October 2021, 16 November 20 21 and 30 November 2021, there was no record of her complaining of relevant symptoms.  The worker’s evidence was that she felt “shut down“ by her doctor stating that she had been “cut off“ and didn’t feel that she could say much more.  The judge however did not accept that she had been “shut down“ or “cut off“ by the GP when she had tried to describe her symptoms. It was held that the GP’s notes of the consultations were detailed and that if any mention of the symptoms had been made there would have been a record of that occurring.

As a result, the Judge concluded that the worker did not mention symptoms to the GP at those earlier appointments.  It was considered to be unusual that the worker would have been going to the workplace in October 2021 if she had been suffering symptoms, “given her proclivity to take medical issues seriously and seek treatment.“  The tribunal did not accept the worker’s account as to the onset of her symptoms but find that she began to have vaccine related symptoms in November 2021.  It was accepted that by this time she had begun to feel unwell due to the vaccine.

 

“The medical experts agreed there is limited scientific and medical knowledge
about COVID-19 vaccines.”

 

The medical experts agreed that if the worker acquired pericarditis and pulmonary embolism due to the vaccine, then symptoms would be expected to have manifested within days and almost certainly within a week or so.  Nevertheless all but one of the experts agreed that without any other explanation for her conditions of pericarditis and pulmonary emboli, the vaccine was the likely cause.  It was noted that the medical experts agreed there is limited scientific and medical knowledge about COVID-19 vaccines.

The case is a good example of the difference between legal causation and medical causation or in other words what evidence is required to establish a case legally as contrasted with reaching a scientific conclusion. The Tribunal noted that if scientists and medical experts based their view in a case like this on epidemiological studies, a different outcome might have been reached.  However, where the medical experts based their views on their own clinical experience rather than broad-based population data there was a more satisfactory basis on which to make a decision.  As the Judge noted, “Just because some potential consequences of some vaccines are known does not mean there may not be other consequences and reactions which may not yet be properly understood.“  It was stated that legal causation may be established where medical science is not prepared to find a probable cause of an injury or condition.  At the end of the day, in this case it appeared that the highly unusual chance of a person having both pericarditis and pulmonary emboli at the same time was a basis to treat the vaccine as the cause of the injuries.

The tribunal concluded that the worker had suffered a work related injury by reason of the vaccine that she had been required to accept and ordered that she was entitled to weekly payments of income maintenance as a consequence.

If this article raises any questions for you, please call 8231 1363 or send through an online enquiry to arrange a time to speak to an experienced workers compensation lawyer at Websters Lawyers who can provide advice and assistance with making a claim.

 

Wiseman v Women’s & Children’s Health Network [2024] SAET 41

https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/sa/SAET/2024/41.html