Davis v Secretary, Department of Education

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Davis v Secretary, Department of Education [2022] NSWPIC 715
APPLICANT:	Melissa Davis
RESPONDENT:	Secretary, Department of Education
PRINCIPAL Member:	Josephine Bamber
DATE OF DECISION:	13 December 2022
CATCHWORDS:	Psychological injury; dispute as to whether injury arising out of or in the course of employment as school learning support officer or whether injury caused by the NSW Government’s public health orders requiring double vaccination for COVID-19 virus; further issue as to whether respondent established defence under section 11A of the Workers Compensation Act 1987 (1987 Act); respondent had not had the applicant medically examined; Strinic v Singh discussed; Bjekic v State of NSW distinguished; Smith v Australian Woollen Mills Ltd, Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd, Nunan v Cockatoo Island Docks & Engineering Co Ltd, Attorney General v K and Hamad v Q Catering Limited applied; Held - the applicant sustained psychological injury arising out of or in the course of her employment; the applicant’s employment with the respondent was both a substantial contributing factor to the injury and the main contributing factor to the aggravation of disease; the respondent has not established a defence under section 11A of the 1987 Act; the respondent is to pay the applicant weekly benefits compensation pursuant to sections 36(1) and 37(1) of the 1987 Act and treatment expenses pursuant to section 60 of the 1987 Act.
determinations made:	1. The applicant sustained psychological injury arising out of or in the course of her employment with the respondent from 27 August 2021 to 8 November 2021. 2. The applicant’s employment with the respondent was both a substantial contributing factor to the injury and the main contributing factor to the aggravation of disease. 3. The respondent has not established a defence under s11A of the Workers Compensation Act 1987. 4. The respondent is to pay the applicant weekly benefits compensation as follows: (a) from 9 November 2021 to 7 February 2022 at the rate of $1,121.77 per week pursuant to s 36(1) of the Workers Compensation Act 1987, and (b) from 8 February 2022 to date and continuing at the rate of $944.65 per week pursuant to s 37(1) of the Workers Compensation Act 1987. 5. The respondent is to pay the applicant’s treatment expenses on production of accounts, receipts and /or Medicare Notice of Charge pursuant to s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Ms Melissa Davis was employed as a School Learning Support Officer with the respondent, Secretary, Department of Education, from 2017 at Verona School. She has suffered from a number of medical conditions, not connected to her employment, including but not limited to diabetes, Hashimoto’s disease and lupus. She was also diagnosed as suffering from depression and anxiety when she was younger, and she states she managed this condition with medication and consultations with her general practitioner[1].
[1] Application to Resolve a Dispute (ARD) p 13 at [19].
In these proceedings Ms Davis seeks weekly compensation and the cost of medical expenses pursuant to the Workers Compensation Act 1987 (the 1987 Act) for psychological injury that she alleges she sustained arising out of or in the course of her employment with the respondent in the period 27 August 2021 and 8 November 2021.
Ms Davis states as she was high risk, being autoimmune compromised, she was permitted to work from home at the commencement of the Covid-19 outbreak. She says she did this successfully for five weeks and again when Sydney was in lockdown. However, Ms Davis says she developed a psychological injury when the respondent sent emails to her threatening her with the loss of her job if she did not undertake double vaccination by 8 November 2021. Her counsel outlined her case on the first hearing date, relying on this threat to her continued employment noting the emails sent to Ms Davis stated that failure to be vaccinated would be viewed as professional misconduct and could lead to penalties including dismissal. Ms Davis’s counsel submits this action by the respondent was not reasonable.
It needs to be borne in mind that the outcome in this case does not turn upon whether the Government’s Covid-19 response and vaccine mandate were reasonable. These were lawful steps taken by the Government in response to a world-wide pandemic in which many people who contracted Covid-19 died. The steps taken were designed to minimise illness and death of members of the community, including to the school community made up of workers and children.
In this case the respondent seeks to draw a distinction between Ms Davis’s condition being her reaction to the Government’s mandate per se, requiring staff to be vaccinated to work in a school, and with the actions by the employer. It has argued that the former does not fall within s 4 of the 1987 Act. Reliance was placed on the decision in Bjekic v State of NSW[2] which drew a distinction between an injury sustained as a result of the public health mandate to that sustained in the course of employment.
[2] 2022 PIC 214, Bjekic.
As an alternative, the respondent’s submission is if the Personal Injury Commission (Commission) finds an injury pursuant to s 4 of the 1987 Act, it relies upon a defence under s 11A, that Ms Davis’s injury has arisen because of reasonable actions by the respondent in relation to dismissal, discipline and provision of employment benefits.
In addition to her own statement evidence, Ms Davis largely relies upon the opinion from Dr Rastogi, psychiatrist, who was qualified by her solicitors to provide a medico-legal opinion and also a brief report from her treating psychologist Mr Kausik.
As with many psychological injury cases, there can be multiple causes for a worker developing a psychological condition and multiple potentially relevant facts. However, the respondent did not have Ms Davis medically examined, so there is no expert medical opinion challenging that of Dr Rastogi in relation to the cause of Ms Davis’s psychological condition. Various appellate authorities have cautioned a decision maker from forming their own views about the evidence without reliance on medical opinion: Strinic v Singh[3].
[3] [2009] NSWCA 15, Strinic.

PROCEDURE BEFORE THE COMMISSION

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.
The parties attended an in person conciliation/arbitration hearing on 3 June 2022 when the matter was adjourned to enable cross-examination of Dr Wood to take place as he was unavailable at that time because he was ill with Covid-19. The matter proceeded in arbitration hearing on 29 August 2022. Mr Dodd of counsel appeared for Ms Davis instructed by Mr McCabe, solicitor. Ms Davis attended via Microsoft Teams. Ms Roberts of counsel appeared for the respondent instructed by Ms Malone, solicitor. A Mr Donque was also present, who I had believed was assisting Mr McCabe as he sat beside him at the bar table and took copious notes. However, at the end of the proceedings I was informed by the respondent’s counsel that she had ascertained Mr Donque was a member of the public.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents (AALD-A) dated 5 May 2022 filed by the applicant;
(d)    Application to Admit Late Documents (AALD-1) dated 31 May 2022 filed by the respondent attaching statement of Dr Paul Wood dated 31 May 2022 and annexures;
(e)    Application to Admit Late Documents (AALD-2) dated 15 June 2022 filed by the respondent attaching clinical records from Dr Nguyen;
(f)    respondent’s written submissions dated 15 June 2022, and
(g)    applicant’s written submissions dated 27 June 2022.

Oral evidence

Dr Paul Wood, a Director of the respondent, was cross-examined. Oral submissions were made by the parties. A written transcript (T) of Dr Wood’s oral evidence and of the parties’ submissions has been made from the sound recording and is available to the parties.
It is useful to summarise the main evidence before considering counsels’ submissions.

Ms Davis’s statement

Ms Davis sets out in her statement dated 2 February 2022 details about her medical conditions including her travails with various medical practitioners as she tried to obtain diagnoses of her medical conditions. She refers to doing her own research which she says helped her to take control of her own management. She was eventually diagnosed with Diabetes (LADA) and Lupus in 2019 and she also has a thyroid condition and has had successful treatment for cervical cancer.
Ms Davis states she was diagnosed with depression and anxiety when she was younger, and this has been managed with medication and regular consultations with her general practitioner.
Ms Davis says she applied for a transfer to Verona School in the position of a permanent School Learning Support Officer, she had previously worked at the school on a long-term temporary basis. Ms Davis states that Ms Carla Scott began as the Principal at the school in 2020. She says she had a good relationship with Ms Scott, who was very supportive of her medical conditions.
Ms Davis states with the commencement of the Covid-19 pandemic she was permitted to work from home as she was autoimmune compromised. She said she did this for five weeks. Her duties involved her calling students and parents/carers to do wellbeing checks, offering support if and when required. Ms Davis said there were no issues at this time with her working from home.
She refers to Sydney being placed into lockdown for two weeks from 26 June 2021 with the Public Health (COVID-19 Temporary Movement and Gathering Restrictions) Amendment Order 2021. Ms Davis advises that she returned to working from home from 15 July 2021. In addition to the previously described duties, Ms Davis states she assisted with online lessons, monitoring and providing support to staff and students.
Ms Davis says on 27 August 2021 she received an email from Georgina Harrisson, Secretary, Department of Education, in relation to mandatory vaccinations for school staff. This email was sent to all school-based staff advising that the Premier of NSW was expected to announce that, as with aged care and health sectors, mandatory double doses of vaccination would be required for all public school and preschool staff from 8 November 2021. The Premier’s announcement was expected at 11.00am that day.
Ms Davis refers to receiving a second email on the same day. She says as a result of the emails she was “Shocked, anxious and feeling forced to have a trial drug injected into my body and worried about what it would do to me”. She adds that she was greatly concerned that the vaccine would cause a negative immune response in her body, and she refers to her prior experience of being misdiagnosed which caused her illness. She says as a result of this stress she was unable to sleep.
Ms Davis says following these two emails from Ms Harrisson she lost her appetite and “felt extremely anxious about receiving the mandatory vaccination”.
At 2.32pm on 2 September 2021 the Deputy Secretary, Chief People Officer of the respondent sent an email to all school-based staff providing an update on mandatory vaccines, advising inter alia that:
(a) from 8 November all NSW school and preschool staff would be required to have received two doses of COVID-19 vaccination, and
(b) from 25 October all NSW school and preschool staff on site to support the staged return of student cohorts under Level 3 plus would be required to have received two doses of COVID-19 vaccination.
On 2 September 2021 Ms Davis says she received an email from Ms Scott outlining the details about getting the vaccination and Ms Scott stated in the email “I can answer individual questions when I speak to you on Monday. If you would prefer to email me questions I am happy for that too”. Ms Davis says as a result of this email she felt pressured and coerced into having the vaccination. She says she now had uncertainty about her future at Verona School.
Ms Davis relates receiving a further email from Ms Scott on 4 September 2021 which reiterated she was required to have the vaccinations between 25 October 2021 and 8 November 2021. The email also stated that Ms Scott would be unable to support any staff to continue to work from home after these dates. Ms Davis says as a result of receiving this email she stayed in her pyjamas all day and felt unmotivated to do anything and felt depressed.
She says on 5 September 2021 she sent an email to Ms Scott asking her to direct her to where in her contract did it require her to be vaccinated. Ms Scott sent two emails in reply advising her she was not on contract as she was a permanent employee. Ms Davis says that Ms Scott also stated “I am aware you are not vaccinated and have no intention of pressuring you into doing anything. I do however need to have a conversation around your thoughts/ plans moving forward as this could potentially affect staffing of our school”. As requested, she was sent a copy of the code of conduct and SASS award.
On 6 September 2021 Ms Davis spoke to Ms Scott on the telephone. She says she
“expressed her concerns and anxieties releasing myself back to the hands of health professionals after having bad experiences, being misdiagnosed and my health care mismanaged. I have great concerns about this medical procedure being the COVID-19 vaccination.”
Ms Davis says Ms Scott had told her of their concerns about their safety working with an unvaccinated staff member. Ms Davis says this made her feel discriminated against. Ms Davis says that Ms Scott sympathised with her about the procedure and her concerns but said she could not hold her position and she could not return to work unless she was fully vaccinated by 8 November 2021.
Ms Davis says Ms Scott sent her text messages on 8 September 2021 as she was worried about her and offered her support asking if she could do anything for her.
On 9 September 2021 Ms Davis received her first dose of the Pfizer vaccine at the Macquarie Fields vaccination hub. She asserts that the staff there did not answer her concerns effectively and as a result she became scared and anxious.
Ms Davis says after the injection she felt unwell, had a tight chest and heart palpitations and her blood sugar levels were very high. She says during the day she gave herself 16 insulin injections in an attempt to lower her blood sugar level. She did not seek medical attention at that time.
She says the next day she had a sore arm, headaches, extreme fatigue and her blood sugars were unable to be controlled. She says she had discussions with friends and ex-colleagues about not being fully vaccinated and she was told the majority of the staff at schools do not want to work with unvaccinated people. She says she again felt discriminated against.
Ms Davis says on the following weekend she had a rash on her left arm, and she slept most of the weekend due to low blood sugar levels. She had conversations with her best friends with a difference of opinion about working with unvaccinated people and she said this put a strain on her friendship.
On Monday 13 September 2021 Ms Davis says she felt fatigued, anxious and had a headache. She said she felt pressured to be vaccinated and felt alienated by her friends and community. She says on the next few days she felt scared and depressed. She found online the manufacturer’s fact sheet for the vaccination and said there had been no safety assessment conducted on autoimmune individuals or long term data for the Covid-19 vaccine.
Ms Davis says on Thursday 16 September 2021 she had a rash on her arms that was itchy, burning and getting worse with blisters so she made a doctor’s appointment. She describes on 18 September 2021 getting her period, two weeks early and it was unusually heavy and painful. The next day she says her arms were bleeding from the blisters which she had scratched and were irritated by clothing. She says she felt sick to the stomach due to the anxiety she felt.
On Monday 20 September 2021 she saw her general practitioner and he advised her a known side effect of the vaccine was heavy periods. She says the doctor thought the rash could be shingles but took a swab and sent it to pathology.
At [47] of her statement Ms Davis says she continued to feel anxious, scared of the effects of the injection in the short and long term. She also felt anxious and stressed about losing her job if she did not have the second vaccination. She says she was overwhelmed, could not focus on reading, writing or conversations and tasks. She says she started to feel angry between “being forced to choose between my livelihood and my health over a trial drug that has no data on immune compromised subjects”.
On 23 September 2021 at 3.02 pm the Minister for Health and Medical Research,
Brad Hazzard MP, made the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 (the Public Health Order). The object of such Order was to require certain education and care workers to be vaccinated against COVID-19. In that Order the Minister directed that education and care workers must not carry out relevant work on or after 8 November 2021 unless the worker had:
(a) two doses of a COVID-19 vaccine, or
(b) been issued with a medical contraindication certificate.
“relevant work” was defined in the Public Health Order as “work at a government school or non-government school”.
Ms Davis says on 29 September 2021 she sent a letter to Ms Scott dated 27 September 2021 in which she sought advice and asked questions about the vaccine. The same day she went to Dr Nguyen and asked about the vaccine, and he filled out a document. She said he seemed unsure of some of his responses which made her even more apprehensive about the vaccine. She says she sent an email to Ms Scott asking a number of questions and stating she wished to be fully informed before going ahead with vaccination. She says she sent an email to Ms Scott on 1 October 2021 requesting a risk assessment be conducted of the impact of Covid-19 on her role as a Learning Support Officer. Ms Scott answered the same day and said she could not provide advice to individual staff about the vaccine program and gave her some links. Ms Scott also enquired about her rash and asked if she needed time off. Ms Davis says she emailed back stating she believed she had an adverse reaction to the vaccine.
On 3 October 2021 Ms Davis says she sent an email to Ms Harrisson asking a number of questions to be fully informed before proceeding with the vaccine and another email asking about a risk assessment.
On 18 October 2021, Georgina Harrison issued Determination No 1 of 2021 under the Teaching Service Act 1980, Covid-19 Vaccination Evidence, the purpose of which was set out in [1.1] thereof as follows:
“The purpose of this Determination is to establish the requirement that employees of the Department must be vaccinated with two doses of a COVID-19 vaccine and provide evidence of that vaccination unless they are unable to be vaccinated because of a medical contraindication, as a condition of their employment with the Department.”
It applied to all employees of the respondent employed in Teaching Service. Clause [4.1] made it a condition of employment in the Teaching Service that an employee must provide, to the responsible person for their ordinary place of work:
“(a) vaccination evidence; or
(b) if the employee is unable to be vaccinated against COVID-19 because of a medical contraindication, a medical contraindication certificate.”

Clauses [4.2] and [4.3] of Determination 1 provided:
“4.2 All employees who work, or will be required to work, on a Department site to
support the staged return of student cohorts to a Department school are required to provide their vaccination evidence or their medical contraindication certificate to the responsible person by 18 October 2021.
4.3 All other employees who attend, or ordinarily attend, a Department school for their work will be required to provide their vaccination evidence or their medical contraindication certificate to the responsible person by 8 November 2021.”
On 25 October 2021 the insurer issued a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) denying liability. Included in the reasons for the decision is that Ms Davis had “reported that you were concerned the vaccine was an experimental drug which had been mandated and that you had been unable to get information to assist in making the decision to be vaccinated against COVID-19.”

Dr Nguyen

On 19 July 2018 Ms Davis saw Dr Lisa Mossop noting there was a lot going on and she had little sleep, her friend was having surgery for cancer and her daughter was “going off the rails”. She also had chronic neck and low back pain[4].
[4] AALD-2 p 54.
On 2 August 2018 Dr Nguyen recorded a reading of 6.6 for HBA1c and diagnosed type 2 diabetes.
On 27 September 2018 Dr Nguyen completed a Mental Health Plan diagnosing Ms Davis with mixed anxiety and depression recommending cognitive behaviour therapy, relation strategies and behavioural interventions[5]. In his clinical note he records Ms Davis was sad and upset and depressed regarding her daughter’s situation[6]. A referral was written to Fabiola Bedon[7].
[5] AALD-2 p 16.
[6] AALD-2 p 56.
[7]AALD2 p 19.
On 1 March 2019 another HBA1c test had a result of 7.9 and the doctor has noted that Ms Davis had been eating more cakes in the past several months[8].
[8] AALD-2 p 58.
On 9 May 2019 Dr Nguyen filled out another Mental Health Plan diagnosing generalised anxiety[9]. Her anxiety was elevated, Concentration reduced, mood flat, sleep insomnia and motivation/energy was reduced. A referral was given to Mindways Psychological Services for counselling and CBT for anxiety[10]. In his clinical notes he recorded the generalised anxiety was due to relationship problems[11].
[9] AALD-2 p 23.
[10] AALD-2 p 27.
[11] AALD-2 p 59.
On 17 July 2019 Dr Nguyen recorded in his clinical notes that she was experiencing poor diabetic control with weight loss and so she had stopped taking Diabex and instead the doctor prescribed Diamicron.
On 20 July 2019 Dr Nguyen wrote a referral to Dr Borkman to seek treatment for Ms Davis for her worsening diabetes condition and another to Dr Wong at Fairfield Hospital[12]. On 25 July 2019 Dr Nguyen discussed with Ms Davis the possibility of diabetes type 1. In his clinical notes Dr Nguyen notes Ms Davis was anxious and worried about her weight loss and sudden worsening diabetes. On 1 August 2019 Dr Nguyen notes Ms Davis has seen Dr Borkman but she wants to go to a diabetes clinic as she cannot afford to see Dr Borkman[13]. On 5 August 2019 Dr Nguyen wrote a referral for Ms Davis to see Dr Vincent Wong for management of new onset rapidly progressing poorly controlled diabetes, referring to possible type 1.[14] On 12 August 2019 Dr Nguyen discussed her starting insulin. Thereafter, the doctor records a number of consultations relating to her diabetes management. On 5 October 2019 it is noted she was upset with Dr Wong and was stressed and anxious about the diagnosis and treatment and wanted a second opinion[15].
[12] AALD-2 pp 29 and 30.
[13] AALD-2 p 62
[14] AALD-2 p 32.
[15] AALD-2 p 66.
On 5 October 2019 Dr Nguyen referred Ms Davis to Dr Anna Duke for management of potentially type 1.5 diabetes noting she had lost 10kg, lost her menstrual cycle and had side effects from Metformin. On 5 November 2019 it is recorded her blood sugar levels were fluctuating due to an issue with the insulin pen, which had been fixed. On 19 December 2019 her blood sugar levels were normal. Throughout early 2020 Ms Davis continued to see Dr Nguyen on a regular basis to monitor her diabetes condition. In April 2020 it was recorded she was doing well.
On 16 May 2020 Dr Nguyen records in his clinical notes that she has anxiety and depression[16] and performed another Mental Health Assessment for mixed anxiety and depression[17] and referred her to Tracey Durrant for treatment[18]. His assessment recorded her anxiety was elevated, concentration reduced, mood agitated and depressed, affect flat, sleep insomnia, appetite reduced, and motivation/energy reduced. On 4 June 2020 Dr Nguyen notes that her periods were irregular, and she was perimenopausal[19].
[16] AALD-2 p 71.
[17] AALD-2 p 44.
[18] AALD-2 p 47.
[19] AALD-2 p 72.
On 7 September 2020 Ms Davis was referred back to Dr Wong at Fairfield Hospital for management of her diabetes. It was noted she was prescribed Lexapro 10mg[20].
[20] AALD-2 p 49.
On 18 February 2021 Dr Nguyen records that Ms Davis was upset as to why she had not been referred to a rheumatologist and she had done research and thought she should take Plaquenil. She was worried she was not being treated for her Hashimoto’s disease. It was noted her diabetes was going well[21]. She was referred to Dr Gotis-Graham for management of joint pains with a query whether they were lupus related[22].
[21] AALD-2 p 75.
[22] AALD-2 p 89.
On 1 July 2021 Dr Nguyen records that Ms Davis’s Lexapro was increased to 20mg that she was anxious and upset. He adds she had broken up with her “boyfriend- premenstrual stress”[23]. Her diabetes was stable, and she was on Plaquenil and doing well.
[23] AALD-2 p 77.
On 6 September 2021 Dr Nguyen notes:
“Long discussed regarding safety of covid vaccination
Discussed risk and benefits explained covid infection
Ethical consideration into consent for vaccination discussed”[24]
[24] AALD-2 p 78.
On 20 September 2021 Dr Nguyen completed a Mental Health Care Plan with the diagnoses of “mixed anxiety and depression” and “circumstantial factors”. He lists her medications as including Lexapro 20mg and for her diabetes and lupus conditions. He notes she does not drink alcohol but smokes 20 cigarettes per day. He notes Ms Davis’s education ended at year 10. She had elevated anxiety, her mood was depressed, her affect flat, her sleep hypersomnia and she had reduced motivation/energy. Dr Nguyen recommended CBT and relaxation strategies and skills training[25]. In the corresponding clinical note there is reference to suicide fleeting thoughts with nil plan and nil intention[26].
[25] ARD p 54.
[26] AALD-2 p 78.
On 29 September 2021 Dr Nguyen noted a change in referral to a different psychologist as Ms Davis could not afford the current one. The doctor also noted she had a rash on her arms “?3 weeks, started vesicular burning sensation itchy, now slowly improving, bilateral symmetrical. Pfizer vaccination 2 weeks ago, heavy menstrual cycle post vaccination now settled. Mood and BGL changes with menstrual cycle.” Dr Nguyen noted that Ms Davis produced a question sheet for him to answer and she was satisfied with his response, and she did not ask any further questions. He also noted that Ms Davis wanted to know if he would prescribe Ivermectin for the treatment and prevention of Covid-19. Dr Nguyen recorded that he said “no”, that it could only be prescribed for the currently listed PBS criteria[27].
[27] AALD-2 p 79.
On 6 October 2021 Ms Davis was seen by Dr Penna at Dr Nguyen’s practice in a video call. He noted she had a small residual rash that had largely cleared with macules from dorsal forearm to hands. He queried if it was Urticaria rash post the vaccine. He said she could push back her second vaccine does until she felt her body had settled and she could take an antihistamine before the next dose to reduce the chance of a rash[28].
[28] AALD-2 p 79.
On 11 October 2021 Dr Nguyen recorded in his clinical notes that she had work stress and anxiety, with poor concentration and she could not work, and she was making mistakes but could not get her mind around to working. She was anxious waiting to see a psychologist and had booked with Anil Kaushik[29]. She wanted to have stress leave from work through workcover. Dr Nguyen provided certificates to state that Ms Davis was booked in to have her second Pfizer vaccination on 29 November 2021[30] and on 3 December 2021[31]. He also issued a certificate of capacity finding Ms Davis had no current work capacity for employment to 10 January 2022 due to work related stress and anxiety[32]. A further certificate of the same date covers the period 27 August 2021 to 28 November 2021[33].
[29] AALD-2 p 80.
[30] ARD p 59.
[31] ARD p 60.
[32] ARD p 48.
[33] AALD-2 p 101.
On 21 October 2021 Dr Nguyen recorded that after her first vaccination she had increased blood sugars, headaches, early period with dysmenorrhoea and passing clots and bilateral forearm rash and lupus flare with painful joints and rash. Her anxiety was recorded as +++. She was taking Lexapro and wanted to take Valium at night to manage panic attacks. It is noted she does not want to get a second Pfizer dose[34].
[34] AALD-2 p 80.
On 23 October 2021 Dr Nguyen recorded that Ms Davis was refusing to get the second vaccination and she requested he complete a form for exemption “until 2023 until when patient says all clinical trials have and should be completed. Medical condition being severe stress anxiety related to getting vaccinated”[35].
[35] AALD-2 p 81.
A similar certificate of capacity was issued on 27 October 2021 and on that day Dr Nguyen referred Ms Davis to Prof Katelaris relating to her autoimmune disorders[36]. In his clinical note Dr Nguyen recorded that Ms Davis had not felt any difference from taking Valium.
[36] ARD p 61.
On 1 November 2021 Dr Nguyen completed an Australian Immunisation Register- immunisation medical exemption form to give Ms Davis a temporary exemption until 2023 from having the Covid-19 vaccination[37].
[37] ARD p 57.
On 24 November 2021 Dr Nguyen recorded that Ms Davis remains anxious and depressed. She was seeing the psychologist which helped and was taking Lexapro 20mg. Melatonin was prescribed to help her sleep. The doctor wrote that he would consider referral to a psychiatrist if she did not improve.
On 9 December 2021 Dr Nguyen issued a referral to Dr Artemi, dermatologist, in relation to the rash on her upper limb[38].
[38] AALD-2 p 83.
On 12 January 2022 Dr Nguyen noted Ms Davis had ongoing anxiety about getting vaccinated with ongoing resistance. He adds, “has been to rallies, refuses to wear mask, has been infected feels well, claims she has been and felt worse after 1^st Covid vaccination. Continue to believe COVID is a conspiracy. Can’t return to work as she is unvaccinated.[39]”
[39] AALD-2 p 83.
A Centrelink certificate dated 12 January 2022 certifies her unfit to work until 13 April 2022 referring to depression, anxiety and PTSD[40].
[40] ARD p 122 and AALD-2 p 122.

Anil Kaushik

Anil Kausik, psychologist, treated Ms Davis from 15 October 2021 and reported to Dr Nguyen on 10 December 2021 that by then he had seen Ms Davis five times[41]. He advises that Ms Davis told him she had a “massive immune response” to the vaccine that she had still not completely recovered from. He adds that she now suffers from anxiety and depression which appear to have come about from her fear of losing her job. She told Mr Kausik that her employer requires her to be fully vaccinated and she fears suffering the same side effects if she has a second vaccination. She advised him that she gets very little sleep as she is constantly worried about what is going to happen and at one stage she was experiencing nightmares about being homeless.
[41] ARD p 47.

Dr Rastogi

Dr Rastogi, psychiatrist, has provided a medico-legal report dated 14 November 2021 at the request of Ms Davis’s solicitors. The doctor took the history that in 2020 at the commencement of the Covid-19 pandemic Ms Davis worked from home for five weeks, without issue. She also worked from home from 15 July 2021 again due to the pandemic.
Dr Rastogi was told that upon receipt of the email on 27 August 2021 from the respondent stating she needed to have a vaccination to maintain her employment, Ms Davis “was extremely stressed, and her anxiety heightened as she had underlying autoimmune disorders and there was limited data to support the effects of the vaccine and impact with her autoimmune disorder”. The doctor notes she continued to receive emails and she felt coerced and under duress and she developed anxious ruminations and was extremely traumatised and fearful of her life.
Ms Davis informed Dr Rastogi that she had been wrongly diagnosed with Type 2 Diabetes in the past and in 2019 she became extremely physically unwell losing 13 kilos and had a near death experience and she was re-diagnosed with Type 1 Diabetes and offered appropriate treatment. The doctor states this caused significant emotional trauma with catastrophic response to Ms Davis. Dr Rastogi adds that Ms Davis came to “a good place” in 2020, and she was doing well physically and emotionally.
Dr Rastogi expressed the opinion that Ms Davis developed a magnification of her anxiety, physical and cognitive experiences following coercive emails during the Covid pandemic to receive vaccination that she was extremely petrified of due to her pre-existing medical conditions and she was faced with possible termination of her employment causing career threats and uncertainty. The doctor opined that she “felt discriminated, ostracised and under duress to receive vaccination and stated she had significant adverse impact post vaccination of her first dose on her physical and emotional wellbeing.” The doctor added that her anxiety and depression has been maintained with the uncertainty.
Dr Rastogi opined:
“In the absence of any other non-work stressors, her employment is the main contributing factor to the injury sustained and/or diagnoses. The reasons being coerced and discrimination to receive vaccination as a mandatory requirement and possible threat to her employment with no support provided. Her anxiety has been magnified and deteriorated following adverse reaction to vaccination and being ostracised further with possible termination threat causing vocational jeopardy and displacement.”
Dr Rastogi found that her condition was not wholly or predominantly caused by the action of her employer in respect to promotion, performance appraisal, discipline and dismissal.

Dr Wood’s evidence

The evidence of Dr Wood is contained in his statement dated 31 May 2022 and he was cross-examined. Because it is documented I am not going to reproduce all of his evidence, but I have summarised the main areas of his evidence.
I formed the impression that Dr Wood was a very credible witness and frankly conceded when information was not within his knowledge.
Many of the questions asked of him in cross-examination do not have relevance to Ms Davis’s case such as the questions about non-school based staff and the situation with teachers. Ms Davis was school based learning support aide, not a teacher. Also many of the questions asked were to have him confirm the contents of the various emails, which are in evidence.
In [7] of his statement, Dr Wood says that the Department, in sending out an email to all school-based staff in the morning of 27 August 2022, wanted to ensure that staff were kept updated on the Government’s intention to introduce the COVID-19 vaccination mandate, as the situation was moving quickly, and a public announcement was due to be made by the NSW Premier at 11.00am that day.
Dr Wood was referred to Attachment 2 of his statement which he acknowledged contained the wording that it was “…an update on that 27^th of August 2021”, which said that all public and preschool staff were required to be fully vaccinated by 8 November 2021. Both emails were sent to all to all school based staff.[42] I find nothing turns on this fact as it would be unrealistic to expect a large employer such as the respondent to send individual emails to each employee.
[42] T 7.10.
Dr Wood said with reference to the email sent out on 8 September 2021 which reiterated that from 8 November 2021 all NSW school and preschool staff will be required to have received two doses of COVID-19 vaccine from 8 November 2021.
Dr Wood was questioned about Attachment 5 to his statement, the “COVID-19 Vaccination Guidelines” (the Guidelines) issued by the respondent, and in particular to [8.1], [8.8], and [8.9] thereof, which provided:
(a)    no special leave provisions available to those who refuse to comply with the Guidelines;
(b)    that if staff were found to be, or suspected of being, in breach of the Public Health Order, the NSW police would be called and infringement notices or criminal charges may be laid, and
(c)    that if staff were found to be, or suspected of being, in breach of the Guidelines, then investigation and disciplinary action may be undertaken by the department, including termination of employment.
Dr Wood stated that the Professional and Ethical Standards group was responsible for disciplinary matters, and Mr Daryl Currie was the head of that group. The Workplace Relations Group was responsible for industrial relations. Dr Wood could not give evidence about the reasons made for decisions by those groups.
Mr Dodd asked Dr Wood whether the directions of his colleague in the disciplinary section differentiated between all teachers and any particular teacher. Dr Wood stated that the Department’s policy would apply to all teachers, but that there were opportunities for individual teachers to submit a medical contraindication if they had a medical condition which would prevent them from being vaccinated to make an application. As far as he was aware, the only exemption was through a medical contraindication[43].
[43] T20.20.
Dr Wood said that a breach of the code of conduct could result in disciplinary matters, the size and scale of which would depend on the nature of the breach. The code of conduct would be the document that outlines the expectations of employee behaviour within the Department[44]. Dr Wood agreed that in August and September 2021 non-compliance with the requirement to be double vaccinated by 8 November 2021 resulted in the application of disciplinary procedures.
[44] T21.
Dr Wood said that thought was given in his committee as to how long the pandemic was going to continue. Policies and procedures that were put in place to support schools at particular points in time were not necessarily given end dates. Policies were revised as circumstances changed[45].
[45] T22.
Mr Dodd asked Dr Wood about the effect on a worker’s employment record if they were disciplined and Dr Wood responded that it was outside his area of expertise what would be recorded. He was pressed about the situation if someone was terminated as a result of disciplinary action, whether that would remain on that person’s record and could not be erased over time. He answered, “I understand it probably would be.”[46]
[46] T23.23.
Dr Wood would not speculate about the number of teachers who were employed by the Department as at September 2021 when Mr Dodd suggested that it was about 50,000. However, Dr Wood was not asked about the numbers of teacher’s aides. Dr Wood stated he did not have specific details of the number of teachers who had complied with the direction to be double vaccinated by 8 November 2021 but said that they had a very high vaccination rate, up to 90% of staff were fully vaccinated and compliant. He said the actual number of non-compliance was actually very small, he believed in the hundreds[47].
[47] T25-26.
Mr Dodd asked about why arrangements were not made for the unvaccinated to work remotely and Dr Wood said that was a matter for the Workplace Relations Group to answer. Mr Dodd did not ask about whether teachers’ aides could work remotely if the teacher and students were physically present at the school.

Dr Wood in answer to further questions said that he was not qualified to answer as to whether it would have been difficult for the Department to cater for the couple of hundred, within the many thousands of staff of the Department, to teach from home. He said that a number of people who had different responsibilities would have to address that proposition. These included the Our People group, and the Employee Performance and Conduct Unit, and that to give the name of a person to provide an answer to the proposition would be difficult because it crossed over a number of areas.
Dr Wood confirmed that the vast majority of the Department’s staff work in schools. He was asked about his experience as a teacher for a period of time before going to other areas, which might include School of the Air going to remote and regional communities. He said that from his experience, teachers of the School of the Air work from a location in Bourke. He did not have the information to say if any of those teachers worked remotely.
Several questions were asked about the opportunity for the unvaccinated teachers to work in areas such as curriculum development. However, it needs to be borne in mind that Ms Davis finished her education at the end of year 10 and was a teacher’s aide so it is a reasonable inference she would not have been qualified, in any event, to work in curriculum development.
Dr Wood stated he was moved from the Covid taskforce in February 2022[48]. He said that as of May 2022 he was aware of teachers being directed to work at schools even though they were not double vaccinated. He said disciplinary proceedings were paused.
[48] T33.20 not transcribed in the transcript but clear from sound record.
Dr Wood was asked about attachment 11 to his statement and acknowledged that it had a commencement date of 12 November 2021, and that the contact person listed thereon was the Director, Strategic Initiative and Projects. He stated he was not aware of who was holding that role at that point in time.
In re-examination Dr Wood was asked when he learned that the Public Health Order was to be introduced. He was not sure but said that it was “very likely to have been very close to the 27^th”. He added at that point in time government decisions were being made and were implemented “very quickly”.[49]
[49] T 36.05.
Dr Wood also gave evidence about the work streams that were commenced within the Department to react to and implement the requirements of the Public Health Order, including:
(a)    the establishment of the vaccination policy and the associated resources to support Principals and other employees manage this in the department to enact a policy;
(b)    an ITD technology work stream to establish the Vaccination Attestation and Confirmation system;
(c)    legal department, who are responsible for interpretation of the Department of Health and other legal matters;
(d)    work safety and health and employee wellbeing area who dealt with medical contraindication, and
(e)    employee performance and disciplinary conduct process.
Dr Wood advised it was generally the case that when students returned to in-classroom learning, they had in-class instruction.

FINDINGS AND REASONS

It is convenient to summarise the written submissions in relation to the issue of “injury” first.

Respondent’s written submissions

The respondent filed brief written submissions dated 15 June 2022. It identified the following issues:
(a) Whether Ms Davis suffered an injury in the course of her employment; and
(b) If so, whether such injury was caused by reasonable actions of her employer within the scope of s11A of the 1987 Act.
The respondent set out what it considered was relevant background facts which included that prior to the claimed date of injury she had been diagnosed with various medical conditions including depression and anxiety. The respondent noted that on 1 July 2021 her prescription for Escitalopram (Lexapro) was increased. It also referred to parts of Ms Davis’s statement such as her concern about being in the hands of medical professionals given her prior bad experiences, her feelings of being discriminated due to being informed of her colleagues concerned at working with unvaccinated people, her reaction to her first dose of the Pfizer vaccine and symptoms thereafter, alienation by friends and family and loss of friendships and feeling isolated in connection with her decision not to complete being vaccinated. The respondent also referred to the entry on 12 Janaury 2022 about her attending rallies, refusing to wear a mask and belief that Covid-19 is a conspiracy.
The respondent in its written submissions deals with s4 of the 1987 Act but seems to interchangeably refer to “arising out of employment” and “in the course of employment”. It submits that any physical reaction to the vaccine can be dealt with in the separate scheme set up for persons suffering a vaccine injury. The Respondent submits “the relevant question is whether her psychological injury, claimed to have occurred on 27 August 2021, arose out of the course of her employment.” An analogy was drawn with the case of Bjekic where it was held a security guard at a hospital who refused to wear a face mask had not established his employment was the main contributing factor to his injury, but that his injury was caused by the NSW health orders.
It was submitted that the email to Ms Davis on 27 August 2021 communicating the public health mandate “was not one to which her employment (rather than the public health mandate) was the substantial contributing factor.”
The balance of the written submissions deal with the s11A argument.

Ms Davis’s written submissions

Ms Davis’s counsel made brief written submissions dated 27 June 2022.
He set out the circumstances of injury, noting her medical background and that in early 2020 with the outbreak of Covid Ms Davis was permitted to work from home as she was autoimmune compromised. Reference was made to her statement in which she expressed her concerns and anxieties about receiving further medical treatment, having had bad prior experiences. It is noted she had her first dose of vaccine on 9 September 2021 and had an adverse reaction. At [7] of the submissions it is noted that Ms Davis felt discriminated against when co-workers discussed mandatory vaccination. It is submitted that over the week commencing 20 September 2021 she felt anxious, depressed and scared.
At [12] it is submitted that she first consulted Dr Nguyen on 20 September 2021 and was diagnosed with Mixed Anxiety and Depression, and on 1 October 2021 he certified her exempt from further vaccination.
Reference is made to the Public Health Order of 23 September 2021 proscribing relevant work being at a government or non-government school and requiring double vaccination. It is noted that from 27 September to 7 October 2021 Ms Davis sought information from the respondent regarding her safety if she had the second dose of vaccine, to which she received no response. Counsel also refers to the Covid-19 Vaccination Guidelines issued on 5 October 2021 providing for breaches of the Guidelines may result in investigation and disciplinary action including termination of employment. Counsel also refers to the other documents attached to Dr Wood’s statement issued in October 2021.
Counsel refers to Mr Kaushik’s view that Ms Davis’s symptoms came about due to fear of losing her job.
Ms Davis’s counsel submitted that respondent’s case is deficient because it has adduced no evidence from Ms Scott and has no medical evidence.
The balance of the submissions deal with s11A.
Both parties made oral submissions. I will refer to the relevant submissions of both parties when dealing with each issue in dispute.

Injury

Section 4 of the 1987 Act defines “injury” as follows:
“(a) means a 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 any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease.”
Ms Davis has the onus of proof in establishing that she has suffered an injury within the terms of s4 of the 1987 Act.
Neither party specified what part of s 4 was being relied upon. A psychological injury can be viewed as coming under s 4(a) or 4(b). In the ARD Ms Davis’s solicitor has specified it is a “personal injury” and has not ticked that it has a deemed date of injury. Given Ms Davis was being treated for a pre-existing psychological condition, s 4(b)(ii) may have been the more appropriate legislative provision to consider. That involves considering whether there was an aggravation etc of the pre-existing condition and, if so, whether the employment is the main contributing factor to such aggravation.
If the injury is to be viewed under s 4(a), then s 9A of the 1987 Act needs to be satisfied as to whether the employment was “a substantial contributing factor” to the injury.
In this case for the reasons given below the distinction does not matter, as I am satisfied that Ms Davis does suffer a psychological injury arising out of or in the course of her employment with the respondent and that her employment fulfils the requirements of being a substantial contributing factor to her injury as well as the main contributing factor to any aggravation etc of her pre-existing psychological condition.
The first issue raised by the respondent is whether Ms Davis suffered an injury arising out of or in the course of her employment. The respondent’s contention is that Ms Davis reacted to the Government’s public health orders rather than the actions of the employer. At first blush this type of argument seems attractive. The respondent points to a number of aspects of Ms Davis’s statement and comments recorded in Dr Nguyen’s records that have the flavour of an “anti-vaccination type” position. Listed below are some such matters:
(a)    Asking Dr Nguyen on 29 September 2021 if he would prescribe Ivermectin, an anti-parasitic drug, for the treatment and prevention of Covid-19.
(b)    Her email dated 29 September 2021 addressed to Ms Scott which concludes by referring to “my inalienable rights are reserved” and containing passages such as:
“5. Can you please confirm the vaccine you are advocating is NOT ‘experimental mRNA gene altering therapy’.
6. Can you please confirm that I will not be under any duress from yourselves as my employers, in compliance with the Nuremburg code?”
(c)    Dr Nguyen’s record “has been to rallies, refuses to wear mask, has been infected feels well, claims she has been and felt worse after 1^st Covid vaccination. Continue to believe COVID is a conspiracy”[50].
(d)    Her feelings of “discrimination” in being told she could not work unvaccinated, rather than focusing on the common good to the wider school community including to her colleagues and children that vaccination would afford.
[50] AALD-2 p 83
However, the difficulty with the approach advocated by the respondent is that it calls for the Commission to consider Ms Davis’s statements and analyse the cause of her psychological condition without the assistance of an expert, such as a psychiatrist. A psychiatrist necessarily speaks directly to the worker and can raise such statements with her together with other potential causes, and thereafter provide an informed opinion about the causation of the psychological condition. Psychological injury cases are complicated and often the factual evidence is varied, and the causes of a worker developing a psychological injury can be multifactorial. Various authorities have remonstrated with decision makers in coming to effectively their own diagnoses.
In Strinic at [58] the Court of Appeal referred to the Compensation Court as a specialist tribunal able to make decisions relating to medical causation and the aetiology of incapacity whose expertise is refined by the repeated performance of their tasks. Even if the Personal Injury Commission in the Workers Compensation Division was regarded similarly, as the successor of the Workers Compensation Commission and in turn the Compensation Court, that does not mean that a Member should, unaided by medical opinion, come to a conclusion as to the cause of psychological injury. In some matters it may be possible, but I find in this matter the cause of Ms Davis’s psychological condition is complex. Ms Davis was auto-immune compromised as she suffered from conditions of diabetes, Hashimoto’s syndrome and lupus. I have, in some detail, summarised her medical history prior to Covid-19 situation and she has given evidence that she had been frustrated with the efforts of her medical practitioners diagnosing her medical conditions. Her concern about the effects of having the Covid-19 vaccine may have in part been due to such experiences and being fearful of the side effects on an auto-immune individual. As Mr Dodd submitted she did in fact go and get one vaccination, so he argued she should not be viewed as an “anti-vaxxer”.
She has also given evidence about the side-effects she attributes to that first vaccine. Even though one might find it somewhat extraordinary that she did not seek immediate medical advice and gave herself 16 insulin injections on the one day to bring down her blood sugar levels, the respondent does not rely on medical evidence challenging her view that the vaccination caused a reaction to her blood sugar levels or the rash on her arms. The respondent has submitted that this is not a case about the physical effects of that vaccine pointing to the special compensation provisions for adverse outcomes. That is true, but clearly this is another aspect that a psychiatrist may need to consider when coming to an opinion about causation of her psychological condition. Furthermore, there is the fact that before the Covid-19 situation Ms Davis did suffer from a psychological condition that was treated with Lexapro and Dr Nguyen’s notes refer to stressors such as her daughter’s situation. The respondent has referred to the fact that on 1 July 2021 Dr Nguyen increased her Lexapro dosage from 10mg to 20mg. His clinical note for that consultation records that she was anxious and upset and she had broken up with her “boyfriend-premenstrual stress”[51].
[51] AALD-2 p 77.
The respondent has not put before the Commission any medical evidence dealing with all of these factors in Ms Davis’s life. Such an approach does not assist the Commission in coming to the determination that the respondent advocates.
The submission made by Ms Davis’s counsel was that “the medical evidence before the Commission on the question of injury for the purposes of s 4 appears literally one-way traffic, there is no medical evidence to suggest to the contrary.”[52] He submitted that Ms Davis has established that her injury arose out of and in the course of her employment[53].
[52] T41.14
[53] T42.04
The respondent relied on the decision in Bjekic. At [21] of the respondent’s written submission is argued “In the present case, as in Bjekic, any injury the Applicant suffered following receipt of an email communicating a public health direction on 27 August 2021 was not one to which her employment (rather than the public health mandate) was the substantial contributing factor”. However, the applicant does not only rely upon this email. In her ARD her case is pleaded on the basis of actions of the employer from 27 August 2021 to 8 November 2021. She also does not only rely upon communications received from the respondent. In her statement and her history to Dr Rastogi she refers to feelings of discrimination when told that other staff at the school did not want to work with unvaccinated people. She said she felt ostracised.
The facts in Bjekic differ markedly to that in Ms Davis’s case as they involved a security guard at a hospital refusing to wear a mask as he alleged it effected his rhinitis. The decision does not deal with the same communications made by the Government or the employer as in Ms Davis’s case. Member Wynyard in Bjekic also at [12] referred to “the statement being most unclear as to the actual sequence of events”. Because of these differences, I consider it would be unsound to draw any conclusions from the outcome in that case when considering Ms Davis’s matter.
Furthermore, even though the Government enacted the Public Health order requiring staff to be vaccinated to attend schools, it would be difficult to find that any psychological injury as a result of the same did not “arise out of” employment. The mandate only affected Ms Davis because she worked in a school. It was not a mandate requiring the general population to be vaccinated. In Smith v Australian Woollen Mills Ltd[54] the High Court found:
“the expression ‘arising out of’ imports some kind of causal relation with the employment, but it does not necessitate direct or physical causation
…
An injury which arises directly out of circumstances encountered because to encounter them falls within the scope of employment is an injury arising out of the employment.”
[54] [1933] HCA 60; (1933) 50 CLR 504; [1934] ALR 129, Smith.
In Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited[55] the NSW Court of Appeal considered the meaning of “arising out of” and referred to Smith and also to the decision in Nunan v Cockatoo Island Docks & Engineering Co Ltd[56]. In Badawi the Court of Appeal at [75] found when discussing Nunan,
“Their Honours concluded, at 124, that a worker would have established that an injury arose out of employment:
‘... if it appears ... that the fact of his being employed in the particular job caused, or to some material extent contributed to, the injury ...’”
[55] [2009] NSWCA 324, Badawi.
[56] [1941] NSW St R p23d; (1941) 41 SR (NSW) 119, Nunan.
In Ms Davis’s case I find that the fact that she was employed to work in a school did mean any psychological reaction she had to Government orders requiring persons employed in schools to be double vaccinated to attend schools did “arise out of” her employment. The real issue if the injury is viewed as one coming within s 4(a) of the 1987 Act, is the operation of s 9A. Section 9A precludes compensation being payable in respect of a s 4(a) injury unless the employment concerned was a substantial contributing factor to the injury.
Section 9A(2) set out various examples of matters to be taken into account.
Sub-paragraph (d) refers to “the probability that the injury or a similar injury would have happened anyway… if she had not worked in that employment”. In Ms Davis’s case there was no such probability because the Public Health order only required her to be doubly vaccinated because she worked in schools. For this reason, I find Ms Davis has established that her employment with the respondent is a substantial contributing factor to her injury.
If Ms Davis’s injury is regarded as a disease type injury, s 4(b)(ii) would seem to be the most relevant provision because Ms Davis had a pre-existing psychological condition, which can be viewed as a disease. Section 4(b)(ii) provides that a disease injury means that the aggravation etc in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation etc of the disease.
There are no external factors implicated by her doctors as to the cause of her psychological injury. The respondent has pointed to the fact that Dr Nguyen had increased the dosage of Lexapro on 1 July 2021, so before the events in question. I am cognisant of the fact that Dr Rastogi seems to date the increased in dosage to after she received the emails relating to vaccination. However, the respondent has not submitted that this is a reason why Dr Rastogi’s opinion should be totally disregarded. The respondent has no medical evidence to suggest that Ms Davis’s subsequent symptoms are due to pre-existing factors.

Dr Rastogi has identified several factors leading to Ms Davis suffering from an adjustment disorder with exacerbation of anxiety. She refers to:
(a)    coercive emails to receive vaccination, with Ms Davis petrified of vaccination due to her pre-existing medical conditions;
(b)    possible termination causing career threats;
(c)    uncertainty; and
(d)    feelings of discrimination and being ostracised including when told other staff did not want to work with unvaccinated people.
Ms Davis received the email communications from the respondent advising about the vaccination requirements “in the course of her employment” with the respondent and these other factors all were also experienced “in the course of her employment”. Ms Davis has the onus of proof in respect to s 4 of the 1987 Act. I find she has discharged that onus because of the opinion of Dr Rastogi.
I find that I cannot in this case reject the opinion of Dr Rastogi, a psychiatrist who has spoken to Ms Davis, and form my own views as to the potential causes of her psychological condition. In addition, Ms Davis relies on the opinion of Anil Kausik her treating psychologist who saw her five times between 15 October to 10 December 2021. Mr Kausik advises that Ms Davis now suffers from anxiety and depression which appear to have come about from her fear of losing her job. She told Mr Kausik that her employer requires her to be fully vaccinated and she fears suffering the same side effects if she has a second vaccination. She advised him that she gets very little sleep as she is constantly worried about what is going to happen and at one stage she was experiencing nightmares about being homeless.

Section 11A

The respondent submitted that if the Commission finds that Ms Davis’s employment was the main contributing factor to her psychological injury, then s 11A(1) of the 1987 Act is engaged. The respondent has the onus of proof to establish the elements in s11A.
Section 11A(1) of the 1987 Act provides:
“No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
However, Ms Davis’s counsel submits that the respondent cannot discharge its onus of proof because it does not rely on any medical evidence as to the whole or predominant cause of the injury. He relies on the decision in Hamad v Q Catering Limited[57]. In that case at [88] Deputy President Snell in found:
“The extent to which aspects of the appellant’s history contributed to causing the psychological injury was not, in the circumstances, something which could be decided in the absence of medical evidence. There may be cases in which causation of a psychological injury can be established without specific medical evidence, for example where there is a single instance of major psychological trauma, with no other competing factors. The need for medical evidence, dealing with the causation issue in s11A(1) of the 1987 Act, will depend on the facts and circumstances of the individual case. In the current case, as in most, there are a number of potentially causative factors raised in the appellant’s statement and the medical histories. Proof of whether those factors, which potentially provide a defence under s 11A(1), were the whole or predominant cause of the psychological injury, required medical evidence on that topic. The extent of any causal contribution, from matters not constituting actions or proposed actions by the respondent with respect to discipline, could not be resolved on the basis of the Arbitrator’s common knowledge and experience.”
[57] [2017] NSWWCCPD 6, Hamad.
In this case I have found that Ms Davis’s injury arose out of or in the course of her employment, and that employment was the main contributing factor to such injury. While the respondent has not produced any medical evidence from an expert it qualified, it does rely upon aspects of the evidence from Dr Rastogi and Mr Kausik that a cause Ms Davis’s psychological injury was the threat to her ongoing employment with the respondent. Such a factor comes within “discipline” and “dismissal” aspects of s 11A. However, I find the respondent cannot establish this was the “whole” cause of her psychological injury. I have identified above the factors that led to Dr Rastogi’s diagnosis of a psychological injury. I find it was not just the threat of discipline or losing her job that was the whole cause of the psychological injury, she also felt discriminated against and ostracised. Applying Hamad, I find that the respondent needed medical evidence dealing with the whole or predominant cause of her psychological injury.
Determining the “predominant cause” of Ms Davis’s psychological injury is also fraught given her situation pre-covid of being auto-immune compromised and her worry about being vaccinated. As mentioned above, she also expresses feelings of being discriminated and ostracised in the school due to being unvaccinated. The respondent has not called evidence to dispute such conversations occurred. That was her perception of real events.
In Attorney General v K[58] Roche DP summarised at [52] various principles about causation in psychological injury cases, as follows:
“(a) employers take their employees as they find them. There is an “egg-shell psyche” principle which is the equivalent of the “egg-shell skull” principle (Spigelman CJ in Chemler at [40]);
(b) a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spigelman CJ in Chemler at [54]);
(c) if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chemler at [69]);
(d) so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (President Hall in Sheridan);
(e) there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an “objective measure of reasonableness” (Von Doussa J in Wiegand at [31]), and
(f) it is not necessary that the worker’s reaction to the events must have been “rational, reasonable and proportionate” before compensation can be recovered.
[58] (2010) 8 DDCR 120; [2010] NSWWCCPD 76, K’s case.
It does not detract from the finding that the respondent has not discharged its onus of proof in terms of the whole or predominant cause of the injury, that Ms Davis’s reaction may have been due to some of the factors listed in K’s case above. Once “injury” has been established, applying Hamad it is for the respondent to refer to expert evidence to establish the extent of any causal contribution from matters constituting actions or proposed actions by the respondent with respect to discipline, dismissal and employment benefits as distinct from the contribution of other work-related factors, such as in this case her perception of being discriminated and ostracised due to conversations with colleagues.
Much of the respondent’s written and oral submissions are concerned with whether the respondent’s actions taken in implementing the public order, including the decision to terminate the employment of persons who elected not to become vaccinated, should be found to have been “reasonable”. Even if they were reasonable actions when faced with an unprecedented pandemic, with people dying and the need to protect all staff and children, the respondent needs to satisfy both aspects of s 11A for it to successfully rely on it as a defence to compensation being otherwise payable pursuant to s 9 of the 1987 Act. I find it has not established that the whole or predominant cause of Ms Davis’s psychological injury was discipline or dismissal. Certainly the threat to her ongoing employment was part of the factual matrix, but as explained above, relying on the principles expressed in Hamad, I find that the respondent has not discharged its onus of proof.
Given the findings made above, it is not necessary that I consider the issue of reasonableness. I find that the respondent has not made out a defence under s 11A and that Ms Davis is entitled to an award of compensation.

Weekly compensation

The claim made is pursuant to s 36 and s 37 of the 1987 Act on the basis of Ms Davis having no capacity for any employment from 9 November 2021 to date and ongoing. There is no medical evidence presently before the Commission asserting to the contrary. The respondent agrees to the pre-injury average weekly earnings (PIAWE) figure pleaded in the ARD of $1,180.81. In the first 13 weeks Ms Davis is entitled to 95% of her PIAWE, which is $1,121.77 and thereafter 80% of her PIAWE, which is $944.65.
Accordingly, I order that the respondent pay Ms Davis from 9 November 2021 to 7 February 2022 at the rate of $1,121.77 per week and from 8 February 2022 to date and continuing at the rate of $944.65 per week. The respondent is to have credit for any payments made in the above periods.

Medical expenses

Ms Davis’s counsel sought a “general order” in relation to medical expenses. The respondent did oppose the same in the event that Ms Davis was successful in relation to establishing liability. I order that the respondent is to pay Ms Davis’s treatment expenses on production of accounts, receipts and /or Medicare Notice of Charge pursuant to s 60 of the 1987 Act.

[2022] NSWPIC 715

13 December 2022