Pelekanos v Loreto Kirribilli Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Pelekanos v Loreto Kirribilli Ltd [2025] NSWPIC 518
APPLICANT:	Adrian Pelekanos
RESPONDENT:	Loreto Kirribilli Limited
MEMBER:	Rachel Homan
DATE OF DECISION:	29 September 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for incurred medical expenses and a re-credit of sick leave taken in respect of pericarditis resulting from COVID-19 booster vaccination; whether the applicant sustained a personal injury or disease injury in the course of employment; whether employment was a substantial contributing factor or the main contributing factor to the injury; Held – the pericarditis was sustained “in the course of employment”; Hatzimanolis v ANI Corporation Ltd; injury was both an injury simpliciter and a disease injury; Zickar v MGH Plastic Industries Pty; employment was a “substantial contributing factor” to the injury; the respondent established an expectation that its staff receive the booster; Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited; awards in favour of the applicant.
DETERMINATIONS MADE:	The Personal Injury Commission determines: 1. The applicant sustained a personal injury arising out of or in the course of his employment with the respondent on 1 March 2022 pursuant to s 4(a) of the Workers Compensation Act 1987. 2. The applicant’s employment was a substantial contributing factor to the injury for the purposes of s 9A of the Workers Compensation Act 1987. 3. The applicant is not barred from recovering compensation by ss 254 or 261 of the Workplace Injury Management and Workers Compensation Act 1998. The Personal Injury Commission orders 4. The respondent to pay the applicant’s reasonably necessary medical and related treatment expenses in accordance with s 60 of the Workers Compensation Act 1987 upon production of accounts, receipts and/or Medicare Notice of Charge. 5. In accordance with s 50(3) of the Workers Compensation Act 1987, the applicant is to receive a re-credit of sick leave for any dates, on which he was paid wages for sick leave, in respect of which, the applicant had no current work capacity as a result of the work injury. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Mr Adrian Pelekanos (the applicant) is employed by Loreto Kirribilli Limited (the respondent) as an IT System Administrator. On 1 March 2022, the applicant received a Moderna
COVID-19 booster vaccination, as a result of which, he developed pericarditis.
The applicant completed a Workers Injury Claim Form on 22 November 2023, claiming compensation in respect of the pericarditis on the basis that he had been required by the respondent to undergo the vaccination.
The respondent’s insurer disputed liability to pay compensation in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 2 May 2024. That decision was maintained following internal review on 24 May 2024.
In previous proceedings before the Personal Injury Commission (the Commission) (W26049/24), an agreement was reached, on a voluntary basis, that the respondent would re-credit sick leave entitlements and pay compensation pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) up to $2,500.
On 17 June 2025, the applicant, through his solicitors, requested a further review pursuant to s 287A of the 1998 Act after a request for further compensation was declined. The applicant was notified that liability remained declined in a notice issued on 20 June 2025.
The present proceedings were commenced in the Commission by lodgement of an Application to Resolve a Dispute on 4 July 2025. The applicant seeks a re-credit of sick leave for various dates and compensation under s 60 of the 1987 Act for incurred treatment expenses.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained an injury pursuant to s 4 and 9A of the 1987 Act;
(b) the extent and quantification of incapacity resulting from the injury in the period from 17 October 2024 onwards;
(c) whether the claimed medical and related treatment expenses are reasonably necessary as a result of the injury pursuant to s 60 of the 1987 Act, and
(d) whether the applicant is barred from recovering compensation pursuant to ss 254 or 261 of the 1998 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties appeared before the Commission for conciliation conference and arbitration hearing on 4 September 2025. The applicant was represented by Mr Paul Stockley of counsel, instructed by Mr Angelo Bonura. The respondent was represented by Mr John Gaitanis of counsel, instructed by Mr Richard Orr. A representative from Catholic Church Insurances Limited was also present.
During the proceedings, leave was granted to the applicant to amend the Application to Resolve a Dispute to rely on a personal injury pursuant to s 4(a) of the 1987 Act in the alternative to the pleading of a disease injury pursuant to s 4(b)(i) of the 1987 Act. The parties confirmed that if the applicant was successful on the question of liability, an order for the re-credit of sick leave pursuant to s 50 of the 1987 Act and a general order pursuant to
s 60 of the 1987 Act would be appropriate.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and all attachments, and
(c)    documents attached to an Application to Lodge Additional Documents lodged by the applicant on 12 August 2025.
Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in written statements made by him on 9 May 2024,
15 August 2024 and 16 June 2025.
In his first statement, the applicant gave evidence that, as a consequence of the COVID-19 pandemic, the respondent issued a vaccination policy mandating that all staff members receive the COVID-19 vaccine. The applicant understood this policy to be the consequence of a Public Health Order relating to education and care workers including persons employed at schools.
Consistently with the policy, the applicant received two doses of the Pfizer vaccination in August 2021. Neither shot of vaccine caused the applicant any issues.
At the commencement of the 2022 school year, the applicant received a staff notice confirming there was an expectation that all staff would receive a booster vaccination and that the respondent would provide paid leave for this to occur.
As a responsible member of the school community, the applicant received a Moderna booster on or about 1 March 2022.
Within days of receiving the booster, the applicant suffered with symptoms of chest tightness. The symptoms were sufficient for the applicant to present to St George Hospital Emergency Department.
The applicant returned to St George Hospital on or about 15 March 2022, again with significant chest pain. The applicant was referred to a cardiologist and saw Dr Praveen Indraratna on or about 4 April 2022. After a stress test on or about 30 April 2022, the applicant was effectively “given the all clear” by Dr Indraratna.
The applicant was then relatively asymptomatic until a further episode of chest tightness on or about 19 August 2023 caused him to return to St George Hospital.
The applicant presented to Prince of Wales Hospital on or about 19 September 2023 with similar symptoms.
The applicant subsequently sought an opinion from another cardiologist and consulted Dr James Roy on or about 19 October 2023. A few days later, the applicant had another episode of chest tightness which led to him being admitted to hospital for a period of six days.
The applicant said he could no longer train or exercise and found even walking up a set of stairs at home caused issues. The applicant had symptoms of chronic fatigue, chest pain and shortness of breath. The applicant’s sleep was easily disturbed by chest pain. The applicant also found the situation emotionally exhausting and had consulted a psychologist, Mr Justin Hendricks.
The applicant said he obtained legal advice that he may be entitled to workers compensation on or about 20 November 2023. Prior to this, the applicant had no knowledge or understanding that the circumstances of his condition could entitle him to a claim for workers compensation benefits
In his second statement, the applicant described a further admission to St George Hospital with chest pain in July 2024.
The applicant had consulted an immunologist, Professor Suran Fernando who had requested a series of tests including a gastroscopy.
On 29 July 2024, the applicant was admitted to St George Hospital with epigastric pain.
In his most recent statement, the applicant said he had taken sick leave due to COVID related pericarditis symptoms on eight days between 17 October 2024 and June 2025.
The applicant said he had been prescribed daily injections by Professor Fernando. The applicant continued to be managed by Dr Roy for ongoing pericarditis and postural orthostatic tachycardia syndrome (POTS). The applicant was seeing a neurologist in relation to dizziness and balance issues, as well as his general practitioner, an exercise physiologist, psychologist and clinical nurse consultant.

Treating evidence

Records from St George Hospital confirm that the applicant presented to the Emergency Department on 4 March 2022 in relation to chest pain, tightness and shortness of breath on exertion since a Moderna booster the previous Tuesday. The applicant was informed that the Moderna vaccine could lead to inflammation of the pericardium resulting in chest discomfort that could last up to a few weeks. Complications such as pericardial effusion were not noted to be present.
The applicant presented again to St George Hospital on 15 March 2022 with similar symptoms. He was medically cleared for discharge the same day and advised to continue with conservative management.
On 19 August 2023, the applicant was admitted and discharged the same day from St George Hospital after a one-day history of left-sided chest pain described as tightness, pleuritic in nature, with associated exertional dyspnoea and diaphoresis. It was noted that the applicant had a recent upper respiratory tract infection with sore throat and rhinorrhoea. The applicant was diagnosed with pericarditis secondary to the recent upper respiratory tract infection.
Records from Prince of Wales Hospital show an admission on 20 September 2023 with discharge the same day. The applicant presented with acute on chronic central chest pain managed as pericarditis.
The applicant was admitted to St George Hospital on 22 October 2023 and discharged on
26 October 2023 for acute on chronic chest pain associated with a symptomatic diagnosis of pericarditis. The applicant was noted to have a history of peri-/myocarditis post-COVID vaccine the previous year.
Interventional and consultant cardiologist, Dr James Roy prepared a report on 23 October 2023 after the applicant had sought a second opinion regarding his pericarditis. The report noted that the symptoms came on in March 2022 following the Moderna vaccine. The applicant was noted to have ongoing symptoms including chest discomfort, particularly when laying flat, reduced concentration, short-term memory loss, fatigue and reduced exercise tolerance. Dr Roy agreed with the management plan formulated by Dr Indraratna.
A report from Dr Roy, dated 16 November 2023, indicates that the applicant had been weaning his prednisone for pericarditis but this had resulted in a flare of symptoms.
A discharge referral indicates that the applicant was again admitted to St George Hospital overnight on 1 July 2024 after presenting with chest pain on a background of recurrent pericarditis and biliary spasms.
The applicant was admitted to St George Hospital and discharged the same day on 29 July 2024 for epigastric pain after eating. The applicant noted that his pain improved when he stopped taking celecoxib, which was used to treat his pericarditis, however, this resulted in worsening chest pain.
Clinical immunologist and allergist, Professor Suran Fernando, prepared a report on
26 March 2025 in relation to the applicant’s “vaccine allergy syndrome”. It was noted that the applicant had commenced Anakinra injections in September 2024. The report noted that the applicant had been diagnosed by Associate Professor Phil Cremer with persistent postural perceptual dizziness (PPPD). Professor Fernando recommended that the applicant continue with Anakinra, a tailored graduated exercise program and psychology review.

Employer records

A policy document titled “COVID-19 Vaccination Procedures”, recorded:
“Obligations
Staff obligations
Staff must not access the School site on or after 8 November 2021 if they are not fully vaccinated against COVID-19, or if they have not been issued with a medical contraindication certificate. This means that an unvaccinated staff member (including support staff, contractor, casual, volunteer, etc.) who attends school or any site where the business of the School is undertaken (such as a camp, sporting field or excursion venue) will be in breach of the health order and liable to criminal sanctions.
Staff must provide evidence of vaccination or medical contraindication certificate to the School as and when requested.”
A document titled, “Staff Notice Term 1 Week 1 2022” relevantly recorded:
“We are also expecting all staff to have their booster vaccination and will provide paid leave for this to occur where necessary. Our School will continue to apply the required NSW Heath and Government guidelines and communicate this regularly for the safety and wellbeing of our school community.”

Respondent’s witness evidence

Maree Johnstone

Correspondence from Ms Maree Johnstone, Business Manager, dated 30 November 2023, regarding the applicant’s compensation claim noted:
“Under the NSW Government's Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 of 23 September 2021 (PHO), from 8 November 2021, staff were not be able to lawfully work at the School if they had not received two doses of a COVID-19 vaccine or provided a medical contraindication certificate.
The School first communicated with staff about the requirements of the PHO on 3 October 2021.
The School's Vaccination Policy was approved by the School Board on 30 November 2021 and was consistent with the terms of the PHO - that is staff were required to have two doses of a COVID-19 vaccine or provided a medical contraindication certificate.
The Vaccination policy did not and does not require staff to have an additional COVID-19 vaccine dose (known as a 'booster vaccination').
On 24 January 2022, the School's Principal wrote to staff welcoming staff for the 2022 school year. That communication to staff did say 'we are also expecting all staff to have their booster vaccination and will provide paid leave for this to occur where necessary'. This was consistent with a COVID-19 Update to all parents the same day which noted: 'Once eligible, all adults are encouraged to get booster shots.'
As noted, the School encouraged but did not require boosters, and the School took no steps to monitor or record any booster vaccination by staff. The School's vaccination records did not record Mr Pelekanos' 1 March 2022 vaccination.”
Ms Johnstone provided a written statement on 8 February 2024 in which she reiterated:
“The first 2 vaccinations were mandatory for staff members at the School who were required to work on site, and the insured checked whether each staff member required to work on site had received two doses of a COVID vaccine. ln relation to booster shots, it was not mandatory for staff at the insured to receive a booster, but it was encouraged by the insured in one school newsletter. The insured did not collect or keep any records of the booster shots. The booster was never compulsory for staff at the insured.”
Ms Johnstone indicated that the applicant’s working hours were from 7:30am to 3:30pm, Monday to Friday. The applicant took sick leave on 7, 15 and 21 March 2022.
Ms Johnstone said that the first notice of injury received from the applicant was on
23 November 2023, when his solicitor sent a certificate and claim form to the respondent.

Romalina Rocca

Ms Rocca, the respondent’s Deputy Principal, provided a statement on 8 February 2024, which stated:
“Around the beginning of 2022, the majority of the teaching staff and support staff (including lT) were back at work on site. We followed the Public Health Order in respect to this return.
In January 2022, before students returned to school, the lnsured sent out a Newsletter to all of the parents outlining the schools plan for the year, and also explaining to our parents what measures were put in place to ensure the safety of our staff and students.
It indicated that "All staff, volunteers and providers on school sites must be fully vaccinated." At this point in time, "fully vaccinated "meant that each staff, volunteer and provider needed to be double vaccinated. This requirement came from the Public Health Order, which stated that an education and care worker in NSW must not carry out relevant work unless the worker had at least 2 doses of a COVID-19 vaccine, or been issued with a medical contraindication certificate.
We had further correspondence which was sent out to staff members, outlining the COVID safe measures in place such as remaining at home if any cold or flu symptoms, washing hands regularly, sanitising and wearing surgical masks. In this notice it also stated "We are also expecting all staff to have their booster vaccination and will provide paid leave for this to occur where necessary" "Our school will continue to apply the required NSW health and Government guidelines and communicate this regularly'"
While the first 2 vaccine doses were mandated, the booster shots were not mandated or monitored by the lnsured.
This booster was not compulsory in any way. Apart from our initial newsletter to staff at the beginning of the year in 2022, I could not find any other communications to our staff relating to the booster shots.”

Joseph Alam

The respondent’s ICT (information and Communication Technology) Manager, Mr Alam provided a statement on 16 February 2024. Mr Alam stated:
“As far as I remember, when it came to the lnsured's implementation of their COVID policies and procedures, staff were required to email the confirmation of our vaccination certificates to the lnsured before we could return to the premises of the School. This confirmation was in respect to vaccine 1 and 2.
As far as I remember, I received a communication from the lnsured which indicated that it was recommended to receive the booster shot.
The lnsured did not recommend which vaccine to take. This was left to staff to determine.
I understand the Claimant had a booster shot in early 2022 The Claimant returned to work following the booster shot and, as far as I observed, he seemed fit and healthy until around September 2023.
During September 2023, I remember the Claimant was absent from work and advised me that he was sick.
During his absence in around September - October 2023 the Claimant called me and said there was something wrong with his heart and he had been to see his doctor, which is when he was diagnosed with Pericarditis.”

Associate Professor Haber

Cardiologist, Associate Professor Richard Haber, prepared a medicolegal report for the respondent on 1 March 2024. Associate Professor Haber recorded that the applicant had a third vaccine on 1 March 2022. Two days later, he felt tightness and pain in his chest and became breathless. A history of subsequent hospital admissions and treatment was recorded.
Associate Professor Haber gave the opinion that following the third vaccination with the Moderna vaccine, the applicant developed prolonged pericarditis, more likely than not as a reaction to the vaccine. The applicant was noted to be back at work but still symptomatic. The applicant’s activities were restricted due to pain and significant exertional breathlessness.
Associate Professor Haber noted that the applicant developed pericarditis immediately after the vaccination.
It was noted that the applicant might develop pericarditis again if exposed to viral or other infections.

Applicant’s submissions

The applicant submitted that he developed pericarditis as a consequence to receiving a COVID-19 Moderna booster vaccination on 1 March 2022. There was no medical dispute that there was a relationship between the administration of the vaccine and the pericarditis.
The booster was strongly encouraged by the respondent after the applicant had previously received two Pfizer vaccinations, which were compulsory for education workers.
The applicant referred to the evidence of hospital presentations, noting that the first presentation occurred on 4 March 2022 after the applicant received the booster on the previous Tuesday. The history recorded demonstrated that the applicant had been symptomatic with chest pain, tightness and shortness of breath on exertion since he received the booster. The applicant submitted that a pathological condition had been present since
1 March 2022.
The applicant relied on a personal injury on 1 March 2022 pursuant to s 4(a) of the 1987 Act or, in the alternative, a disease injury pursuant to s 4(b)(i) of the 1987 Act.
The applicant submitted that on one view, the injury was the puncturing of the skin by the needle. This involved an injury simpliciter with a consequential condition resulting from it, being pericarditis. In that case, s 9A of the 1987 Act applied. If the injury was a disease injury, s 9A had no application but the “main contributing factor” test would apply. The applicant acknowledged that to satisfy s 4(b)(i), the disease must have been contracted “in the course of employment”. The applicant conceded that s 4(b)(i) does not apply to a disease “arising out of” employment.
The applicant commented that there may be some question as to whether s 15 of the 1987 Act applied as the pericarditis was not a disease of gradual process in this case.
The applicant referred the Commission to the decision of Member Rimmer in Usher v Coffs Harbour City Council[1], but noted that in that case, the worker in received an injury following a flu vaccine administered during normal work hours.
[1] [2021] NSWPIC 196.
The applicant submitted that there were a number of cases in which workers who sustained injuries outside normal work hours but during an employer sanctioned event were found to have been “in the course of employment”.
The applicant referred to the decision in NSW Police Force v Faccin[2] in which the relevant question was said to be whether the employer had expressly or impliedly “authorised, encouraged or permitted” the worker to spend an interval “at a particular place or in a particular way”.
[2] [2015] NSWWCCPD 8.
The applicant submitted that there could be no doubt that there was encouragement on the part of the employer and that the applicant was authorised and permitted to receive the COVID 19 vaccine booster.
The applicant also referred to the decision of Priestly J in Van Haeften v Caltex Oil (Australia)Pty Ltd[3] in which a worker was injured while playing touch football on a Sunday as part of an annual competition between Caltex and other oil companies. The Court found there was a sufficient connection between the game and the worker’s employment to justify the conclusion that he was “in the course of his employment” when he was injured.
[3] (1995) 12 NSWCCR 250.
The applicant submitted that applying these authorities it would be accepted that he was “in the course of employment” when the injection was administered.
The applicant noted that educational institutions were subject to government direction during the pandemic. Staff were strongly encouraged to receive a booster in the staff notice at the commencement of the 2022 school year and were paid leave to do so. The applicant received the booster in response to this encouragement.
While there was no sanction if the applicant did not receive the booster, there was no doubt that the school was sending a clear and firm message to staff. That was how the applicant understood the notice. In those circumstances, there was the necessary authorisation, encouragement or permission to create the necessary causal nexus.
With regard to the applicant’s compliance with ss 254 and 261 of the 1998 Act, the applicant referred to his statement evidence. The discussions with his solicitor were the first time he became aware of a possible claim. The first time he could give notice of the injury was when he knew he had an injury. The applicant submitted that there was no breach of s 254 of the 1998 Act but if there was, it was excused by ignorance or mistake. The delay was brief and there was no prejudice (to the respondent. The applicant made similar submissions in respect of s 261 of the 1998 Act

Respondent’s submissions

The respondent noted that the Application to Resolve a Dispute originally described the injury as a disease injury. The respondent noted that whether the injury relied on was one by reference to s 4(a) or s 4(b) of the 1987 Act, evaluation of the causal connection was required. The applicant was required to demonstrate that employment was either a substantial contributing factor to the injury or the main contributing factor to the injury. A commonsense test of causation applied.
The respondent referred the Commission to the decision of Bjekic v State of New South Wales (Western Sydney Area Local Health District)[4] where it was found that the “substantial” cause of a worker’s sinusitis injury was not his employment, but New South Wales Government directives requiring him to wear a face mask.
[4] [2023] NSWPICPD 27.
The respondent submitted that pericarditis was a disease condition. The disease was contracted as a result of the injection. The respondent submitted that s 4(b)(i) was the relevant provision but was not satisfied because employment was not the main contracting factor to the injury.
The respondent noted that the staff notice concerning the booster vaccination was issued as a consequence of the government’s Public Health Order.
The respondent submitted that the applicant made a personal decision to receive the booster vaccination. The applicant had not said what his personal view was with regard to the vaccine. The applicant’s personal choice was a relevant consideration in considering the contributing factors to the injury.
The respondent referred to the statement evidence from its witnesses. The respondent encouraged but did not require booster vaccinations. The school took no steps to monitor or record whether its staff had received a booster vaccination. There was no mandate. The same request to staff was made to parents. This was a protective, pastoral issue and fell short of inducement or encouragement.
The respondent submitted that the decision in Usher could be distinguished on its facts. There was no prescription from the respondent with regard to the time and place at which the booster was to be administered. No records were kept of booster vaccinations by the respondent. The applicant’s own preferences were not known. The administration of the booster vaccine was consistent with government expectations.
The respondent submitted that the requisite causal relationship was not demonstrated.
With regard to the applicant’s compliance with ss 254 and 261 of the 1998 Act, the respondent noted that the applicant was experiencing symptoms sufficient to present to the Emergency Department within days of receiving the booster. It was implausible that the applicant had no knowledge of the relationship between his pericarditis and the vaccine prior to speaking to his solicitor. The medical evidence indicated that the applicant was aware of the connection.

Applicant’s submissions in reply

The applicant submitted that the respondent did more than encourage the applicant to receive the booster, they said they “expected” him to receive it. In any event, compulsion was not the requisite test. It was irrelevant to speculate about the applicant’s motivations in obtaining the booster. It was expected that he obtained booster by his employer.
With regard to ss 254 and 261 of the 1998 Act, the applicant submitted that he was unaware he had any entitlement to claim workers compensation until he spoke to lawyer. It was not immediately obvious in this case that the condition was work-related.

FINDINGS AND REASONS

Section 9 of the 1987 Act provides that a worker who has received an ‘injury’ shall receive compensation from the worker’s employer in accordance with the Act. The term ‘injury’ is defined in s 4 of the 1987 Act as follows:
“In this Act:
injury:
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease,”
The meaning of the expression, “personal injury” was considered in Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear[5] 7 (Kear), where Roche DP observed
“The authorities establish that a ‘personal injury’ is ‘a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state’ (Gleeson CJ and Kirby J in [Petkoska Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; 200 CLR 286] at [39]). In other words, as stated at [81] in [North Coast Area Health Service v Felstead [2011] NSWWCCPD 51 (Felstead)] it is “a sudden identifiable pathological change”.
[5] [2014] NSWWCCPD 47.
In Military Rehabilitation and Compensation Commission v May[6], however, it was held that although “suddenness” may be relevant in distinguishing a physiological change from the natural progression of an underlying disease, “suddenness” was not necessarily required for there to be a finding of ‘injury’ in the primary sense.[7] Their Honours at [47]–[48] said (excluding references):
“However, as the Full Court correctly held, ‘suddenness’ is not necessary for there to be an ‘injury’ in the primary sense. A physiological change might be ‘sudden and ascertainable’. A physiological change might be ‘dramatic’. The employee’s condition might be a ‘disturbance of the normal physiological state’. That an ‘injury’ in the primary sense can arise, and can be described, in a variety of ways does not mean that ‘suddenness’ is irrelevant. As the Full Court said, ‘suddenness’ is often useful where there is a need to distinguish a physiological change from the natural progress of an underlying (and in one sense, closely related) disease (as occurred in [Zickar] and [Petkoska]). But it is the physiological change – the nature and incidents of that change – that remains central.”
[6] [2016] HCA 19.
[7] See Ky v Blue Leaf Food Group Pty Ltd [2016] NSWWCCPD 55.
In Castro v State Transit Authority (NSW)[8] it was found that a temporary physiological change in the body’s functioning without pathological change, did not constitute injury. Similarly, in Kear, Roche DP added:
“In any event, the authorities do not support the proposition that, on its own, an elevation in blood pressure is a personal injury. That is because, without more, it is not a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state. It is no more than a temporary physiological change in the body’s functioning, similar to the atrial fibrillation that occurred in Castro, without any accompanying lesion or pathological change (Castro at [138]).”
[8] [2000] NSWCC 12; (2000) 19 NSWCCR 496.
The applicant has submitted that the piercing of his skin with a needlestick could be viewed as an ‘injury’ from which a consequential pericarditis condition resulted.
I have carefully considered this submission but doubt that the needlestick piercing the applicant’s skin resulted in a sufficiently “ascertainable or dramatic pathological change”, as opposed to a mere transitory disturbance of the skin.
I am not persuaded that the injection itself involved a “personal injury” in the sense used in
s 4(a) of the 1987 Act, as described in the authorities set out above. There is, however, no medical dispute that the introduction of the vaccine to the applicant’s body via the injection caused pericarditis or an inflammation of the tissue surrounding the applicant’s heart. I am satisfied that this did involve an ascertainable pathological change in the applicant’s body.
The change was quick and dramatic. Within three days of receiving the vaccine, the applicant had presented at the Emergency Department, describing experiencing symptoms of chest pain, tightness and shortness of breath on exertion from the time he received the booster. Those symptoms were diagnosed as pericarditis. Associate Professor Haber noted that the applicant developed pericarditis immediately after the vaccination.
The respondent has submitted that pericarditis is a disease process and so the applicant is required to satisfy s 4(b)(i) of the 1987 Act. While I would be prepared to accept the proposition that pericarditis is a disease, a worker is able to rely on an injury simpliciter despite the existence of a disease. This is highlighted in Zickar v MGH Plastic Industries Pty Ltd[9]. The two types of injury are not mutually exclusive.
[9] [1996] HCA 31.
I am satisfied that the condition that resulted from the vaccination being introduced to the applicant’s body is capable of being characterised as either a “personal injury” for the purposes of s 4(a) of the 1987 Act or a “disease injury” for the purposes of s 4(b)(i) of the 1987 Act.
The next question is whether the injury arose out of or in the course of employment. Section 4(a) is met if either test is satisfied. For the purposes of s 4(b)(i), however, the applicant must demonstrate that he sustained the injury “in the course of” employment.
The expressions, “arising out of” and “in the course of” employment were considered in Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited[10] (Badawi) at [72]:
“Section 4 defines injury as ‘personal injury arising out of or in the course of employment’. The use of the disjunctive is significant, in that two quite different tests are involved, one or other of which is sufficient to be satisfied for the purposes of s 9. It is established that the second limb of the definition ‘in the course of employment’ involves a temporal element and does not of itself contain a causative element. It was for that reason that Mr Zickar succeeded when his congenital aneurism ruptured when he was at work: Zickar v MGH Plastic Industries Pty. Difficult factual issues can arise in determining whether a worker was in the course of employment when injury was sustained, but that arises not because the principle to be applied is uncertain, but because of the fluidity of employment circumstances.”
[10] [2009] NSWCA 324 (8 October 2009); (2009) 7 DCR 75.
The applicant has not given evidence as to where or when on 1 March 2022 he received the booster vaccine. The evidence does establish that 1 March 2022 was a Tuesday which was a normal working day for the applicant. The evidence indicates that staff were able to be granted leave, if necessary, in order to receive the booster vaccination. It is unclear, however, whether the applicant in fact took leave for this purpose. There is no suggestion in the evidence that the applicant received the vaccination at his usual workplace. It may be assumed that the vaccination occurred off-site at a clinic or medical practice. It is not known whether the vaccination was received during or outside the applicant’s normal working hours. On this evidence, I am not prepared to find that, temporally, the applicant was in the course of his usual work when he received the booster.
In Kavanagh v The Commonwealth[11] the Court held that the expression, “injury in the course of employment” meant an injury sustained while the worker was engaged in the work which he or she was employed to do or in something incidental to work. Justice Stephen said,
“It is a temporal concept but the relevant timespan during which the course of employment runs is determined by the activities of the worker; so long as he is engaged in work or something incidental to it the time span endures; as soon as he ceases to be so engaged the timespan ends and with it the course of employment.
That which is incidental to a worker’s work depends upon ‘the sufficiency of the connection between the employment and the thing done by the employee' ‘which is a matter of degree, in time, place and circumstance, as well as practice, must be considered together with the conditions of the employment’: Whittingham v Commissioner of Railways (WA) per Dixon J. [1931] HCA 49; (1931) 46 CLR 22 at p.29.”
[11] (1960) 103 CLR 547 at p. 570.
It is necessary therefore to consider whether getting the vaccine booster was something incidental to the applicant’s work. The applicant has referred the Commission to a series of cases where a worker was found to be “in the course of employment” while at a place or engaged in an activity which was not the work which he or she was employed to do but something that the worker was induced or encouraged to do by the employer[12].
[12] See also Comcare v PVYW [2013] HCA 41 and Hatzimanolis v ANI Corporation Ltd [1992] HCA 21.
The evidence in this case establishes that the applicant was expressly encouraged to receive a third “booster” vaccine dose in the Staff Notice for Term 1 Week 1 2022. While I accept that the booster was not mandatory and compliance was not monitored, staff were informed that it was “expected” that they receive a third dose of the vaccination.
The respondent’s approach to the issue was undoubtedly informed by its status as an educational institution responsible for the care of children and the Public Health Order issued the previous year. The evidence does not establish, however, that the Public Health Order or any other government directive mandated a third dose of the vaccine.
The applicant has not given evidence as to whether he would have received the booster vaccination anyway, regardless of the Staff Notice. I accept, as a matter of common knowledge, and as recorded in the Staff Notice itself, government agencies were encouraging large parts of the population, but particularly frontline and educational workers to receive a third vaccine dose around the same time. The applicant has, however, given evidence that he arranged to receive the booster “as a responsible member of the school community”. The advice the respondent gave its staff went beyond encouragement and established an expectation.
I am satisfied, in these circumstances, that the respondent’s communication on the booster as contained in the Staff Notice encouraged or induced the applicant to receive a third dose of the vaccine. For the purposes of ss 4(a) and 4(b)(i) I would be prepared to accept that the applicant was “in the course of employment” when the vaccine was injected into his body.

For similar reasons, I am also prepared to accept that the injection of the vaccine “arose out of employment”.
In considering the expression “arising out of” in Badawi, the Court referred to Nunan v Cockatoo Island Docks & Engineering Co Ltd[13] where it was observed that the words connoted a “certain degree of causal relation” which was “impossible to define in positive terms”. It was said to be sufficient if:
“…the fact of his being employed in the particular job caused, or to some material extent contributed to, the injury.”
[13] [1941] NSWStRp 23; (1941) 41 SR (NSW) 119.
While it may not have been the only reason, I am satisfied that the applicant’s particular job at an educational institution, and the respondent’s expressed expectation that he receive a third dose of the vaccine, materially contributed to his decision to receive the booster.
For the reasons above, I am satisfied that the applicant received an “injury” for the purposes of s 4(a) of the 1987 Act.
In order for compensation to be payable in respect of a personal injury under s 4(a), the applicant must also satisfy s 9A of the 1987 Act, which provides:
“(1) No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note. In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4.
(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):
(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,

(e) the worker’s state of health before the injury and the existence of any hereditary risks,

(f) the worker’s lifestyle and his or her activities outside the workplace.
(3) A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b) the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.

(4) This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”

In Badawi, the Court found that for employment to be a ‘substantial contributing factor’ to the injury for the purposes of s 9A, the causal connection must be ‘real and of substance’. The language of the section was not to be confused with interpretations such as ‘large’, ‘weighty’ or ‘predominant’.
In E-Dry Pty Ltd v Ker[14] Keating J observed:
“The assessment of whether the employment is a substantial contributing factor to the injury is not solely a medical question but a question which is based on ‘an assessment of all the evidence, lay and expert’ (Smith v Parkes Shire Council [2010] NSWWCCPD 130 (confirmed by Court of Appeal in StateCover Mutual Ltd v Smith [2012] NSWCA 27)).
Whether employment is a substantial contributing factor to an injury is a ‘question of fact and is a matter of impression and degree (McMahon v Lagana [2004] NSWCA 164; 4 DDCR 348 (McMahon)) to be decided after a consideration of all the evidence’ (Duc Dien Tran v Salmat Document Management Solutions Pty Ltd [2008] NSWWCCPD 147 at [72]). This is an evaluative process (State Transit Authority of New South Wales v El-Achi [2015] NSWWCCPD 71 at [72]). In Kernick, Acting Deputy President Snell (as he then was) said (at [31]):
‘In considering whether the Worker had suffered compensable injury in the employ of the Second Employer, it was necessary firstly for the Arbitrator to deal with the question of whether, on the evidence overall, he was satisfied an injury had occurred. If he was so satisfied, it was necessary that he consider the provisions of section 9A, in deciding whether the injury was compensable. Whether ‘the employment concerned was a substantial contributing factor to the injury’ for the purposes of section 9A is a question to be decided on the evidence overall, including a consideration of the matters described in section 9A(2). It is not purely a medical question.’”
[14] [2017] NSWWCCPD 26.
Applying s 9A of the 1987 Act in the present case, I note that the injury I have found above is the pericarditis, which was contracted as a result of the introduction of the Moderna vaccine to the applicant’s body.
As noted above, the precise time and place of the vaccination are unknown, other than it was on Tuesday 1 March 2022. While this was a work day, it is unknown whether the applicant received the vaccine during his ordinary work hours.
More broadly, the vaccination occurred at a time when the state was emerging from the COVID-19 pandemic, in circumstances where most members of the public were being encouraged by government authorities to receive a third dose of COVID vaccine.
The applicant was employed at an educational institution which was subject to the Public Health Order which mandated two doses of vaccine for educational workers. The applicant had complied with that mandate and received two doses of the Pfizer vaccine without complication. A third dose of vaccine was not mandated for educational workers although, the respondent set an expectation that its staff would receive a third dose. There was nothing else about the applicant’s employment duties that exposed him to a risk of developing of pericarditis.
The duration of the applicant’s employment does not weigh in favour or against a finding that employment was a substantial contributing factor to the injury.
There is, in my view, a reasonable possibility that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he had not worked in that employment. The evidence does not suggest that the applicant was opposed to receiving a third dose of vaccine or would not have received it but for the expectation set by the respondent. As noted above, most members of the public were being encouraged to receive a third dose or booster. The government continues to recommend booster doses. The adverse reaction to the Moderna vaccine could have happened at any time if the applicant elected of his own accord to receive a booster dose.
The applicant’s evidence is that he was generally fit and well before the Moderna vaccine. The evidence before me does not address why the vaccine triggered pericarditis in the applicant. There is a real possibility, however, that factors such as the applicant’s age, gender or certain hereditary risks rendered him more vulnerable to developing pericarditis as a complication, given that many millions of people have received the same vaccine without complication.
The applicant’s lifestyle and activities outside the workplace do not appear to be relevant.
For the purposes of s 9A of the 1987 Act, employment need not be the only or the predominant contributing factor to the pericarditis. There may be multiple “substantial contributing factors”. In this case, the general circumstances of the pandemic; the fact that the government advice to most members of the public was to receive a third dose or booster; and the likelihood of a particular hereditary vulnerability to developing pericarditis as a reaction to the vaccine were all substantial contributing factors to the injury and, in my view, outweighed the contribution of employment.
I am, however, satisfied that the contribution of employment was real and of substance. A third dose of vaccine was optional for most members of the public. The applicant’s evidence is that he received a third dose because his employer set an expectation that he do so. The applicant worked in an educational setting. The importance of being fully vaccinated in that setting was reflected in the Public Health Order which had mandated that educational workers receive two doses of vaccine. I am satisfied that the contribution of the applicant’s employment was more than minor or minimal.
Weighing the considerations in s 9A(2) together with the evidence and submissions as a whole, I am satisfied that the applicant’s employment was a “substantial contributing factor” to the injury.
Were it necessary to decide, I would not, however, be satisfied that employment was “the main contributing factor” to the injury for the purposes of s 4(b)(i) of the 1987 Act.

Compliance with ss 254 and 261 of the 1998 Act

Section 254 of the 1998 Act provides:
“(1) Neither compensation nor work injury damages are recoverable by an injured worker unless notice of the injury is given to the employer as soon as possible after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury.”
A failure to give notice of injury as required by s 254 of the 1998 is not, however, a bar to the recovery of compensation if there are special circumstances as provided by s 254(3) of the 1998 Act, including:
“(a) the person against whom the proceedings are taken has not been prejudiced in respect of the proceedings by the failure to give notice of injury or by the defect or inaccuracy in the notice,
(b) the failure to give notice of injury, or the defect or inaccuracy in the notice, was occasioned by ignorance, mistake, absence from the State or other reasonable cause,”

Similarly, s 261 of the 1998 Act provides that compensation cannot be recovered unless a claim for compensation has been made within six months after the injury. A failure to make a claim within the required period is not, however, a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake or other reasonable cause, and the claim was made within three years after the injury.
In the present case, the applicant has given evidence that he first became aware that he had a “work injury” potentially entitling him to compensation when he spoke to his lawyer in November 2023. Notice of the injury and a claim for compensation appear to have been made on 23 November 2023.
The respondent notes, and I accept that, the medical evidence establishes that the applicant was aware of a relationship between his pericarditis and the vaccine booster almost immediately. This is suggested by the St George Hospital records from 4 March 2022.
The relationship between the pericarditis and employment is, however, a far more nuanced and complex matter as the preceding findings demonstrate. I accept for the purpose of s 254 of the 1998 Act that the applicant gave notice of the injury as soon as possible after the injury happened and before the worker he had left the employment. If I am wrong in this regard, I accept that the failure to give notice as required by s 254(1) of the 1998 Act was occasioned by ignorance.
For the purposes of s 261 of the 1998 Act, while I accept that the claim was not made within six months of the injury, it was made within three years and the failure was occasioned by ignorance.
For these reasons, I find that the applicant is not barred from recovering compensation by either s 254 or 261 of the 1998 Act.

Entitlement to compensation pursuant to s 60 of the 1987 Act

The parties agreed that if the applicant’s injury were found to be compensable, there would be an entitlement pursuant to s 60 of the 1987 to receive compensation for any reasonably necessary medical and related treatment expenses resulting from the injury.
There will be a general order for such expenses to be paid upon production of accounts, receipts and/or Medicare Notice of Charge.

Entitlement to weekly compensation

The applicant seeks a re-credit of sick leave paid to him for various dates on which he was absent from work between 17 October 2024 and 6 August 2025.
I accept that if the applicant was incapacitated for work on those dates as a result of his work injury, s 50 of the 1987 Act provides:
“(3) If a worker, in respect of any period of incapacity for work in respect of which the employer is liable to pay compensation to the worker, is paid wages for sick leave by the employer and either an award is made afterwards for the payment of compensation to the worker in respect of that period or the employer agrees afterwards that compensation be paid to the worker in respect of that period—
(a) the employer’s liability to pay compensation in respect of that period shall, to the extent of the wages paid, be deemed to have been satisfied by that payment, and
(b) the wages shall, to the extent of the compensation, be deemed for the purposes of subsections (4) and (5) to have been paid as compensation and not as wages.”
The evidence of incapacity resulting from the injury on those dates is, however, limited. There is a recent SIRA Certificate of Capacity and hospital discharge papers for presentations in July 2025. There is a general medical certificate that contains no indication of the cause of the applicant’s incapacity on 6 August 2025. There are other SIRA certificates of capacity covering the entire period, however, these indicate a capacity to work seven and a half hours per day, five days per week, comprising two days in the office and three days working from home.
I am not satisfied that on the material before me there is sufficient evidence for me to make specific findings that there was no current work capacity as a result of the injury on each of the dates in question.
The parties have, however, agreed that the applicant should be re-credited sick leave for any dates in respect of which he was totally incapacitated as a result of his injury. There will be a general order to that effect.

[2025] NSWPIC 518

29 September 2025