A Child and Youth Support worker employed by the Department for Child Protection (DCP) has been awarded Workers Compensation benefits after suffering post-vaccine pericarditis following a dose of the Pfizer mRNA COVID-19 vaccine.

His employer, the State of South Australia, admitted that the third dose of vaccine resulted in the injury, which involves inflammation of the membrane that surrounds the heart, but argued that the employee shouldn’t receive Workers Compensation because the condition didn’t arise from his employment.  Rather, they claimed that since he was required to have the vaccination under the Emergency Management Vaccination Directions in order to continue as a Youth Support Worker, then the injury arose from that direction and not from his employment.

When is a Work Injury Compensable?

To be entitled to Workers Compensation, an injured worker must show that the injury arose from employment.  When it is a physical injury, the Return to Work Act provides that this means the injury arose out of the course of employment and the employment was a significant contributing cause of the injury.  If the physical injury is an aggravation, deterioration or recurrence of a prior injury then employment must be a significant contributing cause.

Most would be aware that in March 2020 the World Health Organisation declared a Global Pandemic concerning COVID-19.   As a result, the State Co-ordinator declared that a Major Emergency was occurring in South Australia due to the outbreak of COVID-19.

Before starting work with DCP, the worker was employed by Baptist Care SA as a Child and Youth Support Worker and during that time he had two COVID-19 vaccinations.  On both occasions he experienced adverse symptoms for about one to two weeks involving body aches and flu-like symptoms.

After the worker started with DCP, the State Co-ordinator (Commissioner of Police) issued new Vaccination Directions requiring a third booster dose of COVID-19 vaccine for anyone engaged in specified types of work which included the duties involved in the position at DCP.  The worker received a letter from his employer referring to the Vaccination Directions and requiring evidence of his vaccination status or a statement that he wouldn’t engage in the relevant work or duties.

To avoid having a third dose of vaccine he contemplated resigning from DCP but didn’t do so as he loved his job and it was hard to find work at the time.  Although the Vaccination Direction made provision for someone to apply for a medical exemption from having the third dose, the worker understood that process would take time and he wouldn’t be able to work until it was concluded.  In the end, despite being reluctant to do so because of his previous adverse reactions, within days the man received a third (booster) dose of vaccine which occurred outside of his paid working hours at the Wayville Clinic.

The next day he started feeling unwell with severe chest pains and after around two weeks they became so unbearable that he was taken to hospital by ambulance.

By the time of the Court hearing some 18 months later his symptoms had fluctuated with chest pains on a daily basis, and he had been off work for most of that time.  He was unable to enjoy his pre-injury activities such as hiking, walking and Chinese boxing and even walking his son to school 400 metres from home would tire him out.

The Vaccine Direction

The worker’s supervisor told him that the DCP had directed its employees had to have a third vaccine dose within four months of the second, and that he was required to provide evidence of having booked for the booster.  The worker gave evidence that he was told by his supervisor that if he didn’t have the third dose his employment would be terminated.  According to his supervisor that wasn’t the case, and another employee who had refused to be vaccinated took outstanding leave, then leave without pay and returned to work after the vaccination mandate was lifted.  The Tribunal accepted the worker’s evidence on that point but also noted that little turned on that issue since the fact was he was required to have the third vaccine dose if he wanted to keep working and receiving an income.

In order to decide the worker’s claim, the Tribunal considered other cases involving injuries that occurred as a result of complying with COVID-19 directions.  In New South Wales a security officer was required to wear a face mask whilst working in a hospital which aggravated his sinusitis.  In that case it was decided that the injury was caused by government directives and not employment.  Another NSW case involved a teacher who received an email from her employer saying that she would be found guilty of misconduct and face disciplinary action, including possible termination, if she was not double vaccinated.  When she failed to provide proof of her status by the required date she was terminated.  Her claim for psychological injury was initially rejected on the grounds that it was caused by the reasonable action of the employer, however in that case it was found that the way the public health order was implemented by the employer wasn’t reasonable and the claim was successful.

An important distinction made by the Tribunal with regard to the connection between the injury and a worker’s employment was that the law doesn’t require employment to cause the injury, but rather that the injury ‘arose from employment’.  As an example, in another Workers Compensation case  a TAFE employee who was teaching in a remote part of the State was accommodated in a motel provided by her employer.  On a very hot night when the air conditioning wasn’t working, she opened a window which allowed mosquitos into the room.  She sustained multiple bites and developed polyarthritis, chronic fatigue and other symptoms rendering her unable to work.  The Court said that while the most obvious cause of the injury was the mosquito bite, nevertheless it still arose from employment.

Based on this reasoning, the Tribunal noted that the worker’s injury in this case was a direct consequence of the Vaccination Direction and his employment.  There can be more than one significant cause of an injury, and even if one cause is less important it can still be a ‘significant contributing cause’.  The simple fact was that the worker was required to have the third dose of the vaccine to continue performing his duties and be paid, and the vaccine mandate applied to him by reason of his specific employment in the healthcare setting.  Therefore, the adverse reaction to the vaccine was a ‘work injury’ within the meaning of the Return to Work Act, and the worker was entitled to weekly payments of income support and payment of medical expenses.

The Tribunal went on to say that even if the DCP had only ‘encouraged’ the worker to have the third vaccine dose instead of requiring him to do so, he would still be entitled to claim compensation.  Even private sector employees that are not subject to the Vaccination Directions but are required by their employer to be vaccinated are also not prevented from claiming compensation for vaccination related injuries.  For any questions regarding such a claim, call 8231 1363 or send through your enquiry to arrange a time to speak to an experienced workers compensation lawyer at Websters Lawyers who can provide assistance and advice.

Shepherd v The State of South Australia [2024] SAET 2