Herring v Secretary, Department of Education

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Herring v Secretary, Department of Education [2024] NSWPIC 76
APPLICANT:	Jennifer Herring
RESPONDENT:	Secretary, Department of Education
MEMBER:	Lea Drake
DATE OF DECISION:	21 February 2024
CATCHWORDS:	WORKERS COMPENSATION - The applicant sought a finding that she had suffered a psychological injury arising out of or in the course of her employment connected to the imposition of the covid mandated vaccinations by the respondent; Held – finding that the applicant did not suffer an injury.
DETERMINATIONS MADE:	The Commission determines: 1. Jennifer Herring, the applicant in these proceedings, did not sustain an injury arising out of or in the course of her employment. The Commission orders: 1. An award for the respondent.

STATEMENT OF REASONS

BACKGROUND

Jennifer Herring (the applicant) was a schoolteacher employed by the Secretary, Department of Education (the respondent).
The applicant claims a psychological injury pursuant to s 4 of the Workers Compensation Act 1987 (the 1987 Act).

MATTERS IN DISPUTE

Causation and incapacity and the respondent’s defence pursuant to s 11A of the 1987 Act were in issue.
Mr Dodd appeared for the applicant, instructed by Mr McCabe. Mr Gaitanis appeared for the respondent, instructed by Mr Murphy.
Ms Herring’s pre-injury average weekly earnings (PIAWE) was agreed at $2,377.80.

PROCEDURE BEFORE THE PERSONAL INJURY 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.

EVIDENCE

There was no oral evidence.
There was no application to adduce oral evidence or cross examine the applicant or any other witnesses as to any factual disputes before the Personal Injury Commission (Commission).
The following documents were in evidence before the Commission and considered in making this determination:
(a)     Application to Resolve a Dispute (ARD) and attached documents;
(b)     Reply to ARD (Reply) and attached documents;
(c)     Application to Admit Late Documents lodged by McCabe Partners dated
8 December and attached documents;
(d)     Application to Admit Late Documents lodged by Hall and Wilcox dated
15 December and attached documents, and
(e)     Application to Admit Late Documents lodged by Hall and Wilcox dated
18 December and attached documents. This material was not able to be accessed by the Commission until after the hearing, although both parties had access to it and addressed it at the hearing.

Factual background

The applicant has an acknowledged history of generalised anxiety pre-dating the events the subject of this application.
In the materials there are references to the applicant asserting that she had a history of suffering from lupus. There is no evidence that the applicant ever suffered from lupus.
The Department of Education issued emails relevant to the pandemic and the need for vaccinations in July 2021 and August 2021, the Public Health Order 2021 (the Mandatory Notice).
The applicant alleges that the principal at Como West Public School, the school at which she was employed in a temporary Assistant Principal position, and the principal at her children’s school, Caringbah Public School, both slandered and defamed her to other staff, causing her to become demoralised and humiliated, thereby undermining her health and the legitimacy of her medical exemption during the pandemic. She was also embarrassed by being questioned directly by her principal regarding her vaccination status at executive meetings.
The applicant alleges that she suffered a panic attack at school on 12 October 2021 at an executive professional learning day conducted on zoom. She informed her principal that “she could not do this anymore” and took sick leave on 13 October 2021.
On 15 October 2021 she had a zoom meeting with her principal who informed her that she wanted her to complete the reports, presentation awards and programmes and any executive duties which were outstanding until she was stood down on 8 November 2021.
The applicant received emails regarding her vaccination status from the Education Department secretary in July, August, September and October. These were emails forwarded to all relevant staff.
On 18 October 2021 the applicant alleges that she had a panic attack. She consulted a general practitioner and was certified unfit from 18 October 2021 to 19 November 2021 from “extreme severe anxiety”.[1] She did not return to her employment and remained on sick leave until the end of term. She was placed on a mental health plan and consulted a psychologist, Ms Therese Hatfield.
[1] ARD page 36.
The Mandatory Notice to which the applicant took exception advised her and all other teachers working on site in New South Wales schools that they were required to have two doses of a COVID-19 vaccine by 8 November 2021 to be able to return to work on site.
The applicant alleges that she became totally incapacitated for work as a result of events arising out of or in the course of her employment connected to the respondent’s application of government policy which resulted in the Mandatory Notice.
The applicant was stood down from her employment on 9 November 2021 because she had failed to have the required COVID-19 vaccinations.
The applicant alleges feelings of helplessness and hopelessness; a loss of interest in daily activities; appetite and weight changes; sleep changes; anger and irritability; loss of energy; self-loathing; concentration problems; appetite changes; significant weight loss or gain; nausea; migraines; unexplained aches and pains; bad feelings and thoughts; adverse changes to her behaviour and physical symptoms of tiredness and fatigue, headaches and muscle pain.
The applicant commenced work in her husband’s consultancy as a trainer from
29 November 2021. She ceased that work in April 2023.
On 1 July 2023 she was offered and accepted reassignment to the Department of Education as a classroom teacher. The applicant had been offered an earlier opportunity to reapply for work with the respondent. She did not take up that opportunity.
The applicant claims weekly compensation from 18 October 2021 as well as the past and present differential between her pre-injury earnings as an Assistant Principal, the work she performed for her husband and her current salary as a classroom teacher, as well as interest pursuant to s 110 of the Workplace Injury Management and Workers Compensation Act 1998.
On 23 December 2021 the applicant’s solicitor arranged for her to see a psychiatrist,
Dr Richa Rastogi, who provided a report of the same date. Dr Rastogi provided the following answer when asked if her employment had been a substantial and/or main contributing factor to the injury she had sustained;
“In absence of any other non-work stressors, her employment is the main contributing factor to the injury sustained and/or diagnoses. The reasons being constant coercion and discrimination to receive vaccination as a mandatory requirement, refusing her medical exemption, and possible threat to her employment with no support provided. There was further victimisation by principal presenting with hostile behaviours, causing misconduct and lack of support provided. She felt punished and discriminated whilst she was still contemplating vaccination due to fear about the side effects and felt the undue pressures and coercion magnified her anxiety and distress leading to anxiety disorder and panic attacks.” (my emphasis)
The respondent arranged for the applicant to be examined by Dr Peter Young on
6 June 2023. He provided a report on 9 June 2023.[2] He referred to the applicant’s opposition to vaccination and her previous mental health difficulties. She reported to him that she had been distressed and affronted that her exemption from vaccination had been rejected. He concluded that:
“She sustained a psychological injury due to an unreasonable fear of the vaccination itself, which she has continued to avoid.
…
Employment has been a substantial contributing factor as because of employment she was unable to avoid vaccination without causing consequences to her employment.
…
The whole and predominant cause as described is in relation to the vaccination mandate and later dispute over leave and her being stood down.”
[2] Reply page 120.
Dr Young provided a later report[3] in which he called the applicant’s credibility into question. I deal with his conclusions in my consideration.
[3][3] Application to Admit Late Documents page 1.

The respondent’s submissions

The respondent based the predominance of its submissions on the applicant’s capacity to perform work.
In dealing with s 4 and s 9A of the 1987 Act the respondent submitted that the substantial cause of any injury and consequent incapacity in the applicant was the imposition of the mandate, which the respondent was required to enforce, and the applicant’s refusal to adhere to the direction of the respondent regarding compliance based on her personal opposition to the mandate.
In relation to the respondent’s defence pursuant to s 11A of the 1987 Act the respondent submitted that it relied upon the categories of discipline and the provision of employment benefits.
Counsel for the respondent took the Commission to the Independent Medical Examiner (IME) reports. He pointed out that Dr Rastogi had concluded that the cause of her condition was the imposition of the mandate.
Dr Young in his first report reaches the same conclusion referring to her unreasonable fear of the COVID-19 vaccination and being unable to avoid the vaccination.
In his second report dated 18 December 2023[4] Dr Young reached a somewhat different opinion as to the applicant’s credibility which affected his opinion as to her injury and incapacity after viewing additional materials provided to him by the respondent’s solicitors. The materials considered were:
[4] Application to Admit Late Documents dated 18 December 2023.
“●     Past report dated 9 June 2023;
•       Clinical records from Dr Mikhail at Sutherland Medical Centre;
•       Clinical records from Dr Wah Khaing at Cronulla Street Medical Centre;
•       Clinical records of Therese Hatfield of Mindful Solutions;
•      Statement of the worker dated 7 December 2023;
•       Payslips from Herring Consulting for the period April 2022 onwards;
•       Management of Conduct Related to Non Compliance with COVID-19 Vaccination Requirements of the Department of Education dated 12 November 2021;
• Determination under the Teaching Service Act 1980 of the Department of Education dated 18 October 2021;
•       Report of Dr Rastogi dated 23 December 2021;
•       Statement of the worker dated 22 October 2021;
•       Email of the Department of Education dated 27 August 2021;
•       Case Manager notes dated 28 October 2021;
•       Certificates of Capacity of Dr Mikheil dated 19 October 2021, and

• Medical Certificate of Dr Mikheil dated 18 October 2021.”

Having reviewed all the documents he provided the following opinion:
“1.1 Does your review of the enclosed information, particularly new information, cause you to change your opinion of your diagnosis of Ms Herring’s psychological condition, if so, what is your current diagnosis.
The clinical records enclosed confirm that Ms herring has suffered longstanding history of anxiety symptoms, has had health anxiety related to Covid vaccination and that she told her GP she believes she has systemic lupus erythematosus (SLE). The records also confirm that these beliefs caused her to believe that she should not comply with the Covid vaccination requirement and that action by her employer in relation to her noncompliance was the whole and predominate cause of her reported injury. I note that in her recent statement dated 7/12/23 Ms Herring continues to assert that she has a diagnosis of lupus, however there is no evidence from the clinical file that supports this.
The enclosed payslips demonstrate that Ms Herring returned to work part-time substantially earlier than she reported to me, in November 2021 immediately after she was stood down rather than in May 2022 as she reported to me. Additionally, the payslips demonstrate that she was working full-time rather than 25 hours per week as she stated. Clinical notes from Ms Herring’s treating psychologist show that Ms Herring reported in January 2022 that she was training with her brother-in-law, that she had already commenced tutoring students online and teaching piano, and that she was eager to pick up more work.
In a note by her treating psychologist dated 30 May 2022 Ms Herring states that she is currently earning more income than she used to as a teacher. This indicates
Ms Herring misrepresented her functioning to me. There is significant unreliability of the self-reported history in this case which is also likely present with other aspects of her presentation. The enclosed information confirms my opinion as stated in my initial report. However, because Ms Herring has deliberately misrepresented her functioning for the purpose of secondary gain there is an element of malingering present by exaggeration and misattribution.
1.2 On review of the enclosed material, particularly the new information, when do you consider Ms Herring would be fit for work after she was stood down on
8 November 2021. Would this be on a full time or part time basis. Can you please provide your reasons.
In my opinion Ms Herring has been fit for part time work from before November 2021 and for full time work from November 2021 until currently. It is clear from the material now available that Ms Herring has been working and otherwise functioning significantly better than she has reported and that previous opinions based on the validity of her self-report are unreliable. Please do not hesitate to contact me should you require further information or clarification of this report.”

CONSIDERATION

I intend to consider the question of injury first.
In the applicant’s own words:
“As a result of my mandatory eviction from my job, I now suffer from adjustment disorder, generalised anxiety disorder and depression. I am also suffering from Post-traumatic stress disorder.”
The applicant is a committed anti-vaxxer. Her correspondence to the principal of her children’s school on 14 September 2021[5] sets out her position clearly and that position is substantially replicated in her statement;[6]
[5] Reply page 34.
[6]ARD page 17 paragraphs 15 to 32 inclusive.
“To Susan Oliveri,
I write to you as a concerned parent, who would currently be sending my children to school were it not for the current government lockdowns.
I see that on the 27th of August 2021 the NSW Premier announced that vaccinations would become mandatory for N.S.W. Teachers, early childhood educators, support staff, and all other personnel working in an education environment as of October 25th.
We as parents are writing today to express our outrage and disgust at the vile and oppressive implementation of an 'experimental vaccine', in direct contravention of human rights and multiple federal laws.
It has also come to our attention that you are, not only neglecting your duty of care toward our children and your staff, but are actively pursuing this unlawful agenda via coercion, conspicuous harassment for private medical information, whilst parading a seemingly wilful ignorance toward the independent and factual evidence.
Permit me to remind you of several laws and legal philosophies that I need to impress upon your decision-making It is a long-established principle of law that consent cannot be given in circumstances of duress and coercion.Your consistent threat that education employees will lose employment and thus wages, if they are not injected with a Covid-19 vaccine, is tantamount to unconscionable and illegitimate economic duress, by you, upon citizens of this country (many of them parents themselves).
Consent to a medical procedure requires the patient or recipient, after being informed of the risks and benefits of the procedure, be able to freely choose to undergo or decline the procedure,
In the Australian Government's own Immunisation Handbook, under Section 2.1.3 ‘Valid Consent', it states that for consent to be legally valid, ‘It must be given voluntarily in the absence of undue pressure, coercion or manipulation.’
The threat contained within your personal correspondence to staff (which has been distributed amongst our community) is party to exerting economic duress (and our community members) by forcing them to choose between their jobs/career and participating in a Covid-19 vaccination clinical trial.
You are interfering with people's freedom lo decline a ('medical procedure') Covid-19 vaccine by threatening loss of employment if they do not provide evidence to you that they have been injected with a Covid-19 vaccine. Without the evidence (are schools not obliged to ensure that anything introduced to their grounds is evidence-based?) to assert your position, you are essentially committing malpractice. I, and many others within our community, question what standard of education you promote, when you appear unable to observe (even denying) simple scientific data.
As so-called protectors of our children you are required to protect them from political interference. Yet, here we see exactly that, as you enforce a 'science-by-media' narrative that is unsubstantiated nor reconcilable with moral ethics. I would like to bring to your attention my areas of concern.
1.The alarming and rising suicide rate exacerbated by the Covid responses. This is just one example of the major issues that have been largely ignored by media and the incessant but superficial governmental Covid information sessions.
Especially troubling are actions taken with negative impacts on children and teenagers that are demonstrably lacking in efficacy with respect to mitigation of negative virus outcomes. While all elements of society have suffered during the Covid-19 situation it is appalling that those who most trustingly rely on us to shelter, protect, and provide for them have suffered terribly from the alarmist rhetoric and overreaction of government.The unnecessary fear that has been not only allowed but encouraged should be a cause for shame for many in public life.
2. Prolonged and unwarranted overreach of emergency powers, including a lack of sunset clauses and weaponizatlon of police against the populace. The use of our police forces to enforce often unclear and unjustified restrictions and impose extravagant fines and detention on the populace rather than helping to facilitate "business as (much as possible) usual" has done much to undermine confidence in the benevolence of our police service. It used to be that the police force in Australia was generally viewed as a group that one could turn to in times of need.They have now been turned against us and are often exhibiting bullying behaviour with seemingly political motives. The partisan focus of some of these actions is obvious and these can no longer be excused as anomalies.
While we understand this perception should not be transferred to individual officers (in fact, many have expressed concerns with the current situation), and we deplore the ‘baiting’ of police and service personnel it is none the less clear that the overall image of policing has taken a major negative turn.
3. Coerced medical treatment. The institution by stealth of a compulsory vaccination system (if you don't vaccinate you will be punished or discriminated against). This is a clear violation of human rights through travel restriction, loss of employment and other punitive ‘Second class citizen’ measures designed to enforce compliance. Are they seriously moving towards medical apartheid however they look to sugar coat the situation? The questions many Australians have around this medical trial are real and are not always driven by misinformation or propaganda. As one small example, there are many who report that their side effects were brushed off and unreported by doctors and who were consequently fearful of second doses. The vaccines may well be immensely beneficial but honest balanced data, not fear and myopic reporting, are required. That we are moving toward a two~tier society based on this current crisis is unconscionable.
4. Lack of government accountability, open discourse, and platforms for honest dissent. The lack of dissemination of detailed information is deeply disturbing. The lack of nuance around the material that the media is promulgating has the effect that genuine concerns are rot being raised. The emperor may not be completely naked but there needs to be a recognition that his fashion choice could be better.
The treatment of Australians as needing dumbed down sound bites to ensure we "do the right thing" is insulting and breathtaking in its arrogance. The presentation of alternate views is essential for healthy outcomes. The view that science is established by consensus is historically laughable. There has been a breathtakingly profound lack of accountability for government failures and questionable actions specifically related to this crisis. Any exposure has been met not with contrition and renewed efforts to improve policy, process, and transparency but with self-protection. This is corruption and needs to be addressed as such.
Failure of government to nuance and adjust their approach to the unfolding situation and to consider and service the needs of the ‘common person’. The profound disregard of the need for government to be flexible and compassionate when dealing with the details of people's lives and livelihoods is notable. The stories abound of heartless disregard for the needs of sick and dying family members and the destruction of livelihoods based on (as far as the pandemic is concerned) arbitrary borders and lines of demarcation.
While we don't disapprove of facilitating sporting fixtures, the fact that these have taken such a high priority in the media compared to the devastation of our small businesses is simply ridiculous. To hear that they need ‘consistency and security’ when businesses have gone to the wall due to broad ranging snap decisions shows the ineptitude of government to truly understand and get a handle on the problems faced by Australian's day to day.
States have used ‘demarcation lines’' to deny Australians the right to go about their business. The examples of twin cities being separated, small children unable to re-join parents and older ones unable to attend the bedside of dying parents are some of the ludicrous examples of this behaviour. Governments should be working hard to manage each one of these ‘special' situations. It is the job of governments (for which we taxpayers provide the resources!) to ‘make a way'’ to figure out a ‘solution’ and to assist and serve.
There is a reason that government officers are given the term ‘minister’: the non-religious application of the word says it all: ‘ ... to give service, care, or aid; attend, as to wants or necessities.’ The government's primary role and mandate is to enable the reasonable activities of their populace. There has been little evidence of the respective governments applying any degree of graduation or refinement to their covid approach and their draconian and heartless responses lo specific calls for help have done nothing to mitigate negative infection outcomes. Currently this is unbelievable and the fact that the general populace has tolerated a level of incompetence that they would not from any other service provider is testament to the willingness of citizens to resolve matters. The draconian, unnuanced restriction of free movement, association, and ability to work. The life's work of many citizens has been effectively destroyed through repeated lockdowns. Many hard-working Australians will be unable to rebuild their businesses. The restrictions under which they labour appear at best to be implemented with little common sense and at worst on partisan terms and has sent a seriously problematic message to the Australian people.
Slate edicts on freedom of movement and association based on dubious science and undemonstrated benefits have not been questioned and tested. Employer's restrictions based on vaccine status are likely to see many more people lose their employment or have their career trajectories destroyed. The need for some of these restrictions, such as those imposed on teachers and truck drivers, are so clearly unnecessary as to leave one completely nonplussed.
I await your reply and hope that you will affirm a commitment that might illustrate your social contract toward the protection of those who populate our community.
Yours Sincerely,
Mrs J. Herring”

The applicant’s history as presented to this Commission portrays a person of delicate sensibilities who was demoralised and humiliated by the attitude of two principals who she alleges undermined her health and the legitimacy of her medical exemption.
This is inconsistent with the attitude and approach exhibited by the applicant when corresponding with her children’s principal.
The applicant’s own principal was advised by a departmental official to contact another official in the Department of Education regarding the applicant. In her correspondence[7] she stated:
“…Jennifer is a temp teacher at my school (permanent at Fairfield PS). She is also my Relieving AP.
Jen has previously been referred to PES for her quite vocal anti-vax statements on social media and urging parents to send letters to principals which breach our code of conduct. She sent one herself to a Principal (see email thread).
I am writing to you today as Jennifer has previously told me that several times that she couldn't get an exemption. Last term, Jennifer informed me that she has Lupis which her doctor advised her doesn't fall under the exemption category. She told me she was going to "shop around for a dodgy doctor at Bankstown". I also spoke to her on Friday just gone in which she told me her GP said that if he was to write her an exemption he would "get the sack". This morning Jennifer sent me an email to say she now has a medical exemption. This afternoon she contacted me to say she couldn't attend our Executive Meeting as she was medical certificate from a random medical centre with 'extreme anxiety' unable to work from today to 19/11/21.
There is a whole lot more to this story which I am happy to share if need be.” (my emphasis)
[7] Reply page 32.
A medical exemption is a matter for the respondent following the application of strict guidelines. It is not a matter able to be legitimised or otherwise by anyone employed at a school, no matter how senior, and the applicant’s exemption was not approved on grounds relevant to the guidelines. The applicant did not have any medical basis for an exemption.
The applicant also alleges that she was embarrassed by being directly spoken to by her principal at an executive meeting and asked about her vaccination status. This sensitivity is inconsistent with the forthright nature of the expression of her opinions regarding mandatory vaccination. I am not persuaded that mention of these matters would have been a sensitive issue in the manner described by the applicant.
There is a direct factual dispute in this application between the evidence of the applicant’s principal and the applicant. Neither counsel elected to resolve the conflict by an examination.
Where there is a factual dispute, the Commission is entitled to consider the material before it and determine which version of the facts it accepts.
I am persuaded that the applicant’s conduct is consistent with the version of events described by the principal in the memorandum she provided to the Department of Education.[8] In this application I prefer the evidence of the applicant’s principal.
[8] Reply page 32.
I reject the evidence of the applicant as to injury.
The applicant’s portrayal of the collapse of her health is exaggerated and inconsistent with her early return to work and high earning capacity.
I am in full agreement with the opinion expressed by Dr Young regarding the applicant’s credibility in the self-reporting of her injury, symptoms and capacity for work.
The applicant’s portrayal of her demoralised and humiliated state is inconsistent with the woman portrayed by her own correspondence which correspondence was aggressive and in some respects abusive.
I am not satisfied that there were any actual events which could constitute bullying or harassment and I do not accept that the applicant perceived the events described by her as bullying or harassment.
I am not persuaded that the applicant suffered any injury in the course of, or arising out of, her employment.
What the applicant was facing was the inexorable application of government policy to the COVID-19 pandemic, for the protection of school populations, all of which was in direct opposition to the political/social/medical views held by her. Any incapacity in the applicant, and I do not accept that she had any, arose directly from the confrontation of her own views with the policies of the government, which required implementation of those policies by the respondent. She realised that, despite her express opposition to that government policy, it would be applied to her to her detriment unless she complied.
The applicant was vehemently opposed to the Mandatory Notice and any imposition of an obligation to vaccinate, and I am satisfied that it was her fixed position and its consequences arising from the Department of Education’s obligatory imposition of the order which caused her to invent exaggerated symptoms, provide a history of those symptoms to Dr Mikhail,
Dr Rastogi and her psychologist, claim sick leave, and then refuse to vaccinate and be suspended from her employment.
I am satisfied that the applicant did what she said she would. She went to a doctor with a story and relied on that story to claim workers compensation. In making that finding I make no criticism of the doctors who took her history and relied upon it.
Having found that the applicant was not injured out of or in the course of her employment, it is not necessary for me to deal with the issue of incapacity. However, if injury had been established, I would have found on the material available to me, that the applicant suffered no incapacity for work.
Had I had to determine the respondent’s defence pursuant to s 11A I would have found that the respondent acted reasonably in relation to both discipline and the provision of benefits.
For the reasons set out above the Commission will make the findings and orders as set out on page 1 of the Certificate of Determination.

[2024] NSWPIC 76

21 February 2024