Usher v Coffs Harbour City Council

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Usher v Coffs Harbour City Council [2021] NSWPIC 196
APPLICANT:	Susan Usher
RESPONDENT:	Coffs Harbour City Council
MEMBER:	Carolyn Rimmer
DATE OF DECISION:	21 June 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for medical expenses and weekly benefits following flu injection provided by respondent as part of a work health and safety program and which was administered in an appropriate location; issue as to whether this was an injury arising out of and in the course of employment and whether work was a substantial contributing factor; Held- injury both arising from employment and in course of employment and work was a substantial contributing factor; found that the applicant suffered adhesive capsulitis following the injection but not a rotator cuff tear or aggravation, acceleration, exacerbation or deterioration of a previously asymptomatic rotator cuff tear; not satisfied that the surgery for rotator cuff repair on 16 June 2020 was reasonably necessary as a result of the injury on 9 April 2020.
DETERMINATIONS MADE:	1. Award for the respondent in respect of the claim for medical expenses. 2. Respondent to pay the applicant weekly benefits pursuant to s 36 of the Workers Compensation Act 1987 at the rate of $1,083 per week for 14 April 2020. 3. Award for the respondent in respect of the claim for weekly benefits from 16 June 2020 to 27 July 2020.

STATEMENT OF REASONS

BACKGROUND

Susan Usher (the applicant), was employed by Coffs Harbour City Council (the respondent) as an operations supervisor. The respondent was insured by StateCover Mutual Limited (the insurer) at all relevant times.
The applicant alleged that she sustained an injury to her right shoulder in the course of employment on 9 April 2020 when she was administered a flu injection arranged by her employer. She alleged that the injury included the aggravation, acceleration, exacerbation and/or deterioration of a pre-existing condition.
The applicant made a claim for weekly benefits and medical treatment.
The respondent disputed liability in respect of the claim for weekly benefits and medical expenses in a s 78 notice dated 12 June 2020.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether the applicant suffered a personal injury arising out of or in the course of employment (s 4 Workers Compensation Act 1987 (the 1987 Act));
(b)    whether employment was a substantial contributing factor to the right shoulder injury (s 9A of the 1987 Act);
(c)    whether any partial or total incapacity for work was the result of a work-related injury to the right shoulder (s 33 of the 1987 Act), and
(d)    whether medical treatment for the right shoulder, including surgery, was reasonably necessary as a result of a work-related injury to the right shoulder.

PROCEDURE BEFORE THE COMMISSION

The parties attended a conciliation conference and arbitration by telephone on 31 May 2021. Ms Usher was represented by Mr Craig Tanner who was instructed by Mr Dane Twohill of Carroll & O’Dea Lawyers. The respondent was represented by Mr Paul Stockley, who was instructed by Mr Mark Van der Hout of BBW Lawyers. Ms Shinner from the insurer also attended the conciliation conference and arbitration.
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 (ARD) and attached documents;
(b)    Reply and attached documents;
(c)    all documents attached to the Application to Admit Late Documents dated 6 May 2021 filed by the applicant, and
(d)    all documents attached to the Application to Admit Late Documents dated 26 May 2021 filed by the respondent.

Submissions

The submissions of the parties during the arbitration were recorded and I do not propose in these reasons to repeat each of the arguments of counsel. However, the respondent’s submission focused on the argument that the applicant was not in the course of her employment when the flu vaccination was administered and that this was not an injury arising out of employment. In addition, the respondent argued that work was not a substantial contributing factor to the injury. Finally, the respondent submitted that the claim for medical expenses and weekly benefits should be disallowed as the surgery carried out on 16 June 2020 by Dr Jovanovic was not reasonably necessary as a result of the injury on 9 April 2020.
The applicant submitted that she had sustained an injury in the course of her employment and arising out of her employment and that such injury had resulted in the need for surgery on 16 June 2020.

FINDINGS AND REASONS

At the commencement of the arbitration the respondent stated that it accepted the rates and calculations in the wages schedule attached to the ARD and that if the applicant succeeded in relation to the issues being argued she would be entitled to weekly benefits under s 36 of the 1987 Act paid at the rate set out in the applicant’s wages schedule.

Evidence of Susan Usher

The applicant in a statement dated 15 September 2020 said that she commenced employment with the respondent in late 1997 or early 1998. She said she initially commenced as a casual cleaner and since then had also worked in reception and administration and been an operations supervisor since about 2008. She stated that she did not recall having any previous injury to her right shoulder, nor did she suffer any pain in the right shoulder before 9 April 2020.
The applicant said that for the past few years the respondent had arranged for its staff to have flu injections. She said that before 2020 those shots were undertaken at the respondent’s premises, but as a consequence of the Covid‑19 pandemic, the respondent arranged for its staff to have flu injections undertaken at a pop‑up drive‑through location at Coffs International Stadium. She stated that she understood that employees from Coffs Harbour Medical Centre were contracted by the respondent to administer the flu injections to staff.
The applicant wrote:
“6.     On the day of the flu shot, 9 April 2020, I drove and arrived at the stadium in my car at my allotted time. I was thereafter directed to the position in the car park where my flu shot would occur.
7.      I remained in the car and had my window down. The nurse asked me to pull up my sleeve on my right arm, which I did. I was wearing a T‑shirt and pulled my sleeve up above my right shoulder. I assumed the needle was going to occur into my right arm near the bicep as this is where I have always had flu shots.
8.      The nurse then said to me words to the effect ‘You need to pull it further over the shoulder as I am going to put it in the top of the shoulder.’
9.      The needle was then inserted at the top of my shoulder between the corner of my shoulder and my neck.
10.    I then drove home. Approximately an hour later I noticed severe pain in my arm. It travelled from my shoulder down my arm into my wrist. I was having difficulty moving my arm and undressing/dressing myself. I had never felt anything like it.”
The applicant stated that the following day was Good Friday. She said that as a consequence of the pain she contacted her general practitioner, Dr Platt, on Saturday, 11 April 2020 and Dr Platt provided her with some pain medication but was of the view that “it was as a result of the injection rather than any issue with my shoulder”. The applicant said that due to continued pain that weekend she attended her daughter’s general practitioner, Dr Leal at Toormina on Tuesday, 14 April 2020. She said that due to ongoing pain and difficulty with her arm and shoulder she did not return to work on the Tuesday following the long weekend but returned to work on the Wednesday. She stated she advised her employer about what had happened following the injection, and they referred her back to Coffs Harbour Medical Clinic who had undertaken the injection. She said that she had an x‑ray and ultrasound on 15 April 2020 and a steroid injection under ultrasound on 28 April 2020. On 14 May 2020 the applicant had an MRI scan.
The applicant was referred to Dr Jovanovic. She said she was suffering from severe pain during this period and was prescribed Endone and Panadeine Forte. She said she was having difficulty sleeping and performing her duties at work.
The applicant stated that Dr Jovanovic recommended surgery which was undertaken on 16 June 2020 at the Baringa Private Hospital. She said she remained off work until about 27 July 2020 and during this period used her sick leave entitlements.
In a supplementary statement dated 6 May 2021, the applicant stated that her usual work hours were 6.00 am until 3.00 pm with a 30 minute lunch break, usually at around 12.30 pm. She said she worked at Park Beach Holiday Park which was owned by the respondent. She said that she lived across the road from Park Beach Holiday Park and therefore usually walked to work.
The applicant stated that before the Covid‑19 pandemic the flu injections provided by the respondent were provided during work time at the Council depot and workers would travel to the depot during work time to have the injection. She stated that on 9 April 2020 the process was the same, but rather than the injection being done at the depot it occurred at Coffs International Stadium car park where there was a drive‑through clinic.
The applicant wrote:
“7.     On that day I drove my car to work so that I could drive to the stadium when it was time for my injection.
8.      I left Park Beach Holiday Park at approximately 2.15pm to have my injection. This was during my normal work hours.
9.      I arrived at Coffs International Stadium at about 2.25pm. I stopped and a doctor came to the car to take some paperwork which the Council required us to complete and provide upon arrival. I was then directed to drive to a different station that had been set up for my injection. The nurse at that station then undertook the injection as I described in my previous statement. The injection occurred at approximately 2.30pm‑2.40pm.
10.    After the injection I was directed to drive and park at another station, where I was told to sit in the car for 10 minutes to ensure I did not have an adverse reaction to the injection.
11.    By the time the 10 minutes had elapsed it was approximately 2.50pm and as it was towards the end of my shift, I drove home.”

Evidence of Michelle Green

In a statement dated 26 May 2021 Ms Green stated that she had been employed by the respondent as the “WHS Business Partner” since 10 June 2019 having previously worked as the Injury Management Officer. She confirmed that the applicant’s working hours were from 6.00 am to 3.00 pm on Monday, Tuesday and Thursday, and from 6.00 am to 12.30 pm on Wednesday and Friday.
Ms Green said that bearing in mind the time was applicant was booked in to receive her flu vaccination, there was no expectation for her to return to the Park Beach Holiday Park once she had left for the day. Ms Green said that in effect once the applicant started driving to the Coffs International Stadium, she had finalised her shift and was free to go about the remainder of her day. She stated she did not believe anyone from the respondent was at the stadium actively making sure that those who had been booked in to receive a vaccine actually attended.
Ms Green wrote:
“8.     In terms of the vaccination itself, this was a voluntary decision for the staff at Council. It is explicitly identified in the emails which were forwarded to everyone that this was not mandatory and not a requirement to perform any role or duties within Council. The injection was made available to employees for convenience. Whether someone wished to receive it was entirely up to them.
9.      I can confirm that it was the responsibility of the individual employees to register and they were not prompted if they had not made an appointment.
10.    In terms of the control and coordination at the Coffs International Stadium relating to the implementation of the injections, this was the responsibility of the Medical Centre. There were two doctors and two nurses on site on the day.”
In an email dated 21 May 2020 to Ms Shinner of the insurer, Ms Green stated that the flu vaccination program was voluntary for all staff. She said that this year due to Covid restrictions this was facilitated as a drive through clinic at the stadium car park with Coffs Medical Centre. She said that Dr Adrian Gilliland was one of the doctors present on the day reviewing consent forms before vaccinations were administered by a nurse.
Ms Green stated that the applicant reported she was wearing a T‑shirt and had lifted that up to allow the nurse to place the vaccination in the side of the shoulder, but the nurse requested she move the T‑shirt further back to inject the back side of the shoulder. Ms Green said that the applicant reportedly questioned this and the nurse confirmed it was the correct location. Ms Green said that following the injection the applicant made an appointment with her doctor, but due to severity of her pain she saw her daughter’s doctor at Toormina Medical Centre and then her own doctor at a later time.
Ms Green said that when they became aware of the issues the applicant had they suggested she talk with Dr Gilliland from Coffs Medical Centre about the injection and subsequent trouble she was having. She said that Dr Gilliland sent her for some scans at the practice’s expense. Ms Green said she spoke with the applicant following this appointment and confirmed that as the flu vaccination was voluntary and she gave her consent, it was unlikely that the issue was workers compensation. Ms Green said that as the applicant’s pain continued, Dr Gilliland referred her for a cortisone injection. As the pain was not resolving, and Dr Gilliland then sent her for an MRI scan which showed some pre‑existing pathology.
Ms Green wrote:
“Dr Gilliland apparently has now stated that they are not liable for ongoing problems as it stems from pre‑existing issues however Sue argues that she was completely asymptomatic prior to the injection. Sue has returned to her own GP for advice, who has completed a WorkCover certificate.”

Emails

In an email headed “Flu Vaccination email” dated 2 April 2020, Naomi Symonds, WHS Team Leader at the respondent, wrote:
“As part of Council’s pro‑active approach to workers’ health and wellbeing, Council are again offering free onsite flu injections to Council employees. These vaccinations are not a requirement of Council and it is up to individual employees as to whether they receive the vaccination.
Due to social distancing restrictions, this year the flu vaccinations will be offered as a drive through service which will take place at the Cex Stadium car park. We have undertaken significant collaboration with the medical centre in order to be able to deliver the vaccinations this year. Unfortunately, there will be no additional sessions available, so if you are interested in receiving the flu vaccination this year you must be available during the times below and make your own way to the stadium.”
The email provided that the session for indoor staff was to be held on Thursday, 9 April between 1.00 pm and 3.00 pm. Under “booking in” employees were advised they must complete an online request form prior to receiving a flu vaccination and they were not to book in if they could not make the appointment. Employees were to receive a booking confirmation to receive a vaccination within an allocated time slot. In the email under the heading “on arrival” employees were told to follow identified traffic control arrangements, arrive on time, and if they arrive early wait in their car until the scheduled appointment, have a completed declaration form with them, ensure they comply with social distancing measures, not to exit their vehicles and that they would be directed by the doctor to remain in their vehicle parked up for a period of time before departing. It was noted that further information would be emailed to employees once they had completed the online booking form.
In an email dated 15 April 2020 from Sean Hone, Manager – Holiday Parks, to Naomi Symonds, Mr Hone reported an incident involving the applicant “from the flu shot” last Thursday in the 2.30‑3.00 pm time slot. He noted that the applicant had followed the same protocols as others, but when the flu shot was injected, it was not done in the front or side of the shoulder but was administered in the back. He reported that following the injection around 30 minutes later the applicant’s arm became very sore and painful. He said that she was able to see a doctor on Saturday who was shocked at the location of the injection.
In an email dated 28 April 2020 to Michelle Green, Mr Hone stated that the applicant was still in extreme discomfort following the flu shot and had just returned from having an ultrasound and cortisone injection.

Medical evidence

In a report dated 27 October 2020, Dr Graeme Doig, consultant orthopaedic specialist, noted that he saw the applicant in his rooms on 26 October 2020. He reported under “history” that the applicant underwent a vaccination on 9 April 2020 and had been asked by the nurse to put her arm out of the car window and roll up her sleeve. He noted that having undergone previous vaccinations the anatomical location in the past according to the applicant was on the upper‑lateral aspect of her arm. The applicant told him that the nurse asked her to roll up her sleeve to further above the shoulder and proceeded to administer the injection over the top of the shoulder. He reported that the exact location was unknown as the applicant was not watching at the time of the injection. He noted that the applicant managed to drive home but thereafter developed severe pain around the shoulder and down the right arm which lasted for about 10 weeks. The applicant denied any previous problems or injuries to her right arm.
Dr Doig reported that the applicant spoke to a general practitioner via TeleHealth and was prescribed analgesics and was later reviewed by a general practitioner. Dr Doig noted that an initial plain x‑ray on 17 April 2020 revealed pre‑existing degeneration at the acromio‑clavicular joint with a Type 2 curve acromion. Dr Doig stated he was able to view the films which revealed calcification within the rotator cuff and this was confirmed on an ultrasound scan. He noted there was also supra‑spinatus tendinopathy with sub‑acromial bursitis. Dr Doig noted a subsequent MRI scan on 14 May 2020 revealed a full thickness tear of the supraspinatus tendon with sub‑acromial bursitis and evidence of chronic impingement and a reduced sub‑acromial space. There was also noted to be a florid, reactive glenohumeral capsulitis.
Dr Doig noted that as the applicant’s condition was failing to improve with physiotherapy and a cortisone injection, she was referred to a specialist and underwent arthroscopic sub‑acromial decompression and mini‑open rotator cuff repair on 16 June 2020. He reported that the applicant was able to return to pre‑existing duties which she was currently performing.
Dr Doig was asked to comment on the relationship between the condition found on examination and the injury sustained on 9 April 2020 and wrote:
“It would appear that Ms Usher received a bad reaction to the intra‑muscular, influenza vaccination on 9 April 2020. She described a possible brachial neuritis which has been noted in the past from tetanus and Hepatitis B injections. The anatomical site of the described injection is certainly not advised within the administration procedure recommended in the medical literature. I was unable to clarify the exact site of the needle puncture, nor the length of the needle. There is, however, evidence in the medical literature that rotator‑cuff tears can be caused by an influenza injection which is performed too high/proximal in the arm. There is also an association with the development of calcification which was present in the medical imaging. Ms Usher denied any previous problems or injuries to the shoulder. Her MRI scan in May 2020 revealed a florid, intra‑articular, glenohumeral, reactive capsulitis which could be consistent with penetration of the vaccine into the joint, although there was no inflammation noted at arthroscopy on her treating surgeon’s report.
There is, however, a reasonably high rate in the female population of asymptomatic rotator‑cuff tears which increases with age.”

Dr Doig was asked to explain the aetiology of the applicant’s right shoulder condition and wrote:
“In conclusion, there is a possibility that the influenza injection, which was inserted in an inappropriate anatomical location, may have resulted in rotator‑cuff tendon damage which had been noted in case reports in the medical literature. The MRI scan of May 2020 revealed a florid, reactive, intra‑articular capsulitis which is consistent with a reaction to the vaccine.”
Dr Doig expressed the opinion that there was strong medical evidence available that the flu injection on 9 April 2020 was a substantial contributing factor to the applicant’s right shoulder condition. He was asked if he was of the opinion that the flu injection had aggravated, accelerated, exacerbated and/or deteriorated the right shoulder condition and whether the injection was the main contributing factor to any such aggravation, acceleration and/or deterioration, and responded:
“As stated previously there may have been pre‑existing rotator cuff tear present which was asymptomatic and was rendered symptomatic by the injection.”
Dr Doig expressed the opinion that had the injection of 9 April 2020 not taken place, the applicant would not have required the operative procedure on 16 June 2020. He was of the view that had there been a pre‑existing rotator cuff tear, which was a possibility based on the anatomical evidence in her medical imaging, this may have been required at a later date had the injection not taken place.
In a supplementary report dated 23 March 2021, Dr Doig referred to the report of Dr James Clayton dated 15 February 2021. Dr Doig was asked whether, on the balance of probabilities, he was of the opinion that the injection on 9 April 2020 aggravated, accelerated, exacerbated and/or deteriorated the applicant’s right shoulder pathology and responded:
“As far as I am aware Ms Usher was completely asymptomatic with respect to her right shoulder region prior to the injection on 9 April 2020. There is a possibility that the pre‑existing pathology, in particular the degeneration in the acromio‑clavicular joint may have become symptomatic in the future.
It is my opinion, however, that on the balance of probabilities, the injection on 9 April 2020 appears to have rendered the shoulder symptomatic and the medical literature has clarified that a badly placed, vaccination injection needle can result in calcification of the rotator cuff and indeed rotator‑cuff tearing, as I have alluded to in my initial report. It is therefore my opinion that, on the balance of probabilities, the injection on 9 April 2020 rendered the previously asymptomatic right shoulder symptomatic and may have caused the pathology in the rotator cuff as outlined by prior case reports within the medical literature. Ms Usher experienced immediate, prolonged pain and restricted function following the injection. She describes the injection being given directly into the top of the shoulder. There is the possibility the needle actually penetrated the joint.”
Dr Doig expressed the opinion that on the balance of probabilities, in the absence of any prior issues with the right shoulder, the need for the operative intervention was a direct result of, or as a consequence of the injection on 9 April 2020. He considered that the incident certainly contributed to the need for surgery.
Dr Doig was asked if he agreed with Dr Clayton’s opinion that the rotator cuff pathology would have become symptomatic at this time in the applicant’s life regardless of the injection on 9 April 2020 and responded by stating that there was evidence in the medical literature that mal‑placed vaccination injections could result in rotator cuff tearing and/or calcification. He stated that this pathology therefore may not have been present prior to the injection, but if it were present prior to the incident, it appeared to have been rendered symptomatic. Dr Doig disagreed with Dr Clayton’s opinion in that there was strong evidence within the medical literature “that as females age, asymptomatic rotator cuff tears become more prevalent”.
In a report dated 15 February 2021, Dr James Clayton, consultant orthopaedic surgeon, noted that he had performed a detailed examination of documentation and file material regarding the applicant. It appears that Dr Clayton did not conduct any physical examination nor was he provided with a copy of the applicant’s statement. Under “background”, Dr Clayton noted that the radiological investigations demonstrated chronic constitutional rotator cuff syndrome unrelated to the influenza vaccine. He was of the view that the images demonstrated pathology that could not have arisen in the short time frame between the alleged injury and the imaging. He noted that sub‑clinical rotator cuff syndrome and rotator cuff tears, including complete, occurred in more than 50% of patients aged 60 years or over. He considered that this finding was not consistent with a shoulder injury related to vaccine administration (SIRVA) with a posteriorly placed injection. Dr Clayton noted that the MRI of the shoulder on 14 May 2020 additionally revealed florid, reactive gleno‑humeral capsulitis. He was of the view that it was possible that an incorrectly positioned, deep, posteriorly located shoulder injection for vaccination could result in irritation and inflammation of the shoulder joint capsule unrelated to the rotator cuff pathology.
Under “diagnosis”, Dr Clayton concluded that on the basis of probability versus possibility, he was of the opinion that the likely cause of the applicant’s symptoms post‑vaccination, was shoulder capsulitis based on the images and the additional attached documentation. He wrote: “The imaging finding of rotator cuff pathology was entirely incidental and constitutional in nature and in no way related to the workplace.”
Dr Clayton was of the opinion that the rotator cuff pathology would have become symptomatic at this time in the applicant’s life and the pathology and requirement for surgery was in no way related to the vaccination or general employment with the respondent. He did not consider that the condition was an aggravation, acceleration, exacerbation or deterioration of an injury. He was of the view that it was an injury from a misplaced vaccination resulting in synovitis of the posterior glenohumeral joint which would have proceeded to resolve with non‑operative management in the six to eight weeks following the vaccination. Dr Clayton considered that the pain within the shoulder was then superseded by the constitutional rotator cuff syndrome that would have presented at that time irrespective of the workplace and the vaccination.
Dr Clayton was of the view that the applicant’s employment (if the vaccination was to be considered part of the employment) was a substantial contributing factor to the initial symptoms following the vaccination. He considered that it was not a substantial contributing factor beyond six to eight weeks following the vaccination, and the symptoms and functioning were entirely constitutional beyond that time frame.
Dr Clayton concluded that the surgery undertaken was not in any way required as a “direct result of the claimed injury and directly related to employment”. He stated that the surgery, and associated pathology it was for, were remote to the likely injury sustained by the vaccination. He noted the vaccination was inserted incorrectly too far posterior but for a rotator cuff injury, or an exacerbation or aggravation of an underlying condition to occur, the vaccination would have to be placed to proximal (high) in the shoulder. He wrote:
“The posteriorly placed vaccination would have to have been then injected too deep as well, thereby resulting in capsulitis of the posterior glenohumeral component of the shoulder. The management of this is rest with avoidance of heavier lifting and aggressive movement of the shoulder. Simple anti‑inflammatories and analgesics are additionally indicated. Rarely does it require oral or intra‑articular corticosteroid injections. It is a self-limiting phenomenon over a period of weeks and does not require surgery. It certainly is not associated with pathology that requires repair of rotator cuff tendons that are remotely located to the injection site.”

Evidence of treating medical practitioners

In the general practitioner’s records from Northside Health, an entry dated 11 April 2020 noted “Flu shot at work – now cannot move R shoulder.” The applicant was prescribed Panadeine Forte.
In the clinical notes from Toormina Medical Centre, in an entry on 14 April 2020, Dr Colin Leal noted that the reason for visit was “Right shoulder pain”. He wrote:
“Given flu shot 5 days ago, at Council drive through – Susan feels it was given posteriorly, and after 1 hour whole arm started to get sore and movement decreased. No problems with prior flu shots. Has self‑treated with Panadeine Forte – no help.”
On examination there was tenderness over the shoulder and on movement, but no sign of infection.
In a medical certificate dated for 14 April 2020, Dr Colin Leal certified the applicant as unfit to continue her usual occupation.
In the right shoulder x‑ray and ultrasound report dated 17 April 2020, Dr Memon, radiologist, noted after “indication”, “Right shoulder pain with reduced abduction and internal rotation ? supraspinatus tear.” Dr Memon concluded that there was prominent supraspinatus tendinopathy with subacromial/subdeltoid bursitis. A calcification seen on the radiograph was projected within the infraspinatus tendon on ultrasound and had dense appearance, not suggestive of acute calcific tendinosis.
In a WorkCover NSW Certificate of Capacity from the Northside Health Clinic dated 15 May 2020, the applicant was certified as having capacity for some type of employment from 19 May 2020 to 16 June 2020. Under “diagnosis of work related injury/disease”, Dr Cathryn Platt wrote “Aggravation of pain”. After the words “injury/disease is consistent with patient’s description of cause”, Dr Platt wrote “Uncertain”. She also noted:
“Given flu shot in shoulder in drive though flu clinic. One hour later aching pain down R arm then unable to move it for 5 days. Pain has continued to this day. Injection must have aggravated something. MRI shoulder shows chronic condition but no symptoms previously. Also some of her symptoms seem to be coming from the neck MRI organised.”
In the MRI report dated 15 May 2020, Dr Stephen Currin, radiologist, noted under “Clinical” that the applicant had pain in the right shoulder following a flu injection. He wrote: “? Adhesive capsulitis, ? supraspinatus tear, ? direct trauma”. Under “impression”, Dr Currin wrote:
“1.     High grade full thickness or near full thickness supraspinatus tendon tear extending from the footplate to the cable portion of the cuff with interstitial extension, measuring 20mm AP x 13mm mediolateral. Associated subacromial sub‑deltoid bursitis.
2.     Lateral subacromial arch stenosis with chronic impingement due to osseous and ligamentous factors contributes to the underlying rotator cuff pathology and bursitis.
3.     Florid glenohumeral capsulitis with a fibroinflammatory component could represent a reactive mixed type capsulitis or a developing clinical adhesive capsulitis.
4.     No evidence for Parsonage‑Turner syndrome or iatrogenic injury.”
Dr Adrian Gilliland of the Coffs Medical Centre, in a referral dated 18 May 2020 to Dr Jovanovic, noted that the applicant had developed severe right shoulder pain and probably adhesive capsulitis following an influenza injection. He reported she denied history of previous shoulder injury but had evidence of a chronic high grade full thickness supra‑spinatus tear with sub‑acromial arch impingement.
In a report dated 25 May 2020, Dr Platt stated that on the same day the applicant went through a clinic she developed symptoms after an injection given in the back of the shoulder which was not the usual place. She noted the applicant had been referred to Dr Jovanovic. She stated that she could only assume that the injection aggravated previous undiagnosed condition in the shoulder and commented that diagnosis was not 100% certain.
In a report dated 3 June 2020, Dr Alex Jovanovic, treating orthopaedic surgeon, noted that the applicant had presented with a history of troublesome right shoulder since early in April 2020 and she linked her shoulder symptoms to a flu injection at the time. He noted that on specific questioning she told him that she did not have any shoulder issues prior to the flu injection. He reported that she described a constant throbbing shoulder ache radiating down her arm associated with difficulty with elevation and troublesome at night. She had taken Endone for pain relief and had a cortisone and local anaesthetic injection in the sub‑acromial bursa without significant improvement in the long term.
On examination, Dr Jovanovic noted the applicant had a full range of movement at the shoulder associated with painful abduction arc and weakness of the rotator cuff mainly the supraspinatus. He reported that x‑rays showed a Type III acromion with sclerosis of the greater tuberosity and MRI was consistent with a full thickness tear of the supraspinatus.
Dr Jovanovic wrote:
“I had a lengthy and frank discussion with Susan in regard to her condition, its natural history and treatment options including the pros and cons of both non‑operative and surgical treatment. I made it clear to her that I believe that the flu injection is only a coincidence and as the appearance on x‑rays and MRI are consistent with a pre‑existing condition. It is hard to explain why she suddenly developed classic rotator cuff dysfunction symptoms following the flu injection on 9 April 2020. Susan is keen to proceed with arthroscopic sub‑acromial decompression and mini open rotator cuff repair.”
In the Operation Record dated 16 June 2020, Dr Jovanovic noted that the procedure was an Arthroscopic SAD and mini open rotator cuff repair on the right side. The pre‑operative diagnosis and post-operative diagnosis was rotator cuff tear. Findings were reported as:
(a)    full thickness tear of the supraspinatus;
(b)    significant impingement on the underside of the acromion, and
(c)    chronic sub‑acromial bursitis.
In a report dated 2 July 2020 Dr Jovanovic noted the applicant had presented two weeks following surgery and reported excellent progress with pain.
In a report dated 19 August 2020 Dr Jovanovic noted that the applicant had presented that day eight weeks following the surgery and reported excellent progress with no pain and a good range of movement that was improving with physiotherapy.

DISCUSSION

Did the applicant suffer a personal injury that arose out of or in the course of her employment?

The first issue to determine is whether the applicant suffered a personal injury that arose out of or in the course of her employment with the respondent.
Section 4 of the 1987 Act as amended by the 2012 amending Act defines injury as follows:
“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, and
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
The onus is on the applicant to establish that she suffered an injury arising out of or in the course of employment with the respondent. If the injury was found to be a personal injury arising out of or in the course of employment under s 4(a), it must also be established that employment was a substantial contributing factor to that injury (s 9A of the 1987 Act). If the injury was by way of an aggravation, acceleration, exacerbation or deterioration of a disease, under s 4(b)(ii), the employment must be the main contributing factor to that aggravation, acceleration, exacerbation or deterioration.
The High Court in Zickar v MGH Plastic Industries Pty Ltd (1996) 140 ALR 156 discussed the distinction between “personal Injury” and “disease”. The majority held that the word “includes” in s 4(b) is not to be construed as excluding an injury being a disease within the meaning of paragraph (b) from also being personal injury within the meaning of paragraph (a), that is, paragraphs (a) and (b) are not mutually exclusive. Roche DP in Gibson v Royal Life Saving Society of Australia (2009) NSWWCCPD 13 noted that an injury that results in the aggravation of a disease is capable of sustaining a finding of personal injury within the meaning of s 4(a). A “disease injury” therefore can also be a personal injury arising out of or in the course of employment and thereby fall within s 4(a) of the 1987 Act.
The applicant argued that she suffered a personal injury in accordance with s 4(a) on 9 April 2020.
The applicant’s evidence which was not challenged and which I accept, was that the respondent had for some years organised flu injections for employees during work time. In April 2020 the arrangements made by the respondent were varied from those in past years because of the Covid pandemic. Instead of the flu injections taking place in the respondent’s depot as occurred in previous years, the respondent made arrangements for employees to be vaccinated at a drive through clinic at Coffs International Stadium.
Ms Green gave evidence that having the vaccination was voluntary and not a requirement to perform any role or duties with the respondent Council. She stated that the injection was made available to employees for convenience and it was the responsibility of the individual employees to register. She said that in terms of the control and coordination at the Coffs International Stadium, the Medical Centre was responsible for the implementation of the injections. She stated that two doctors and two nurses were on site on the day.
Ms Symonds in an email headed “Flu Vaccination email” dated 2 April 2020, described the vaccination program as part of the respondent’s pro‑active approach to workers’ health and wellbeing. She said that the respondent was “again offering free onsite flu injections to Council employees”. Ms Symonds said that these vaccinations were not a requirement of Council and it was up to individual employees as to whether they received the vaccination.
Ms Symonds went on to note that due to social distancing restrictions, the flu vaccinations would be offered as a drive through service which will take place at the Stadium car park. She stated that the respondent had undertaken significant collaboration with the medical centre in order to be able to deliver the vaccinations.
The email provided that the session for indoor staff was to be held on Thursday, 9 April between 1.00 pm and 3.00 pm. Under “booking in” employees were advised they must complete an online request form prior to receiving a flu vaccination and they were not to book in if they could not make the appointment. Employees were to receive a booking confirmation to receive a vaccination within an allocated time slot. In the email under the heading “on arrival” employees were given instructions including following identified traffic control arrangements, having a completed declaration form with them, complying with social distancing measures, not exiting their vehicles and being directed by the doctor to remain in their vehicle parked up for a period of time before departing.
The applicant stated that she booked in for the flu vaccination and on the day of the flu shot, 9 April 2020, drove to the stadium to arrive at her allotted time. She remained in her car with the window down and a nurse asked her to pull up her sleeve on her right arm, which she did. She assumed the needle was going to occur into her right arm near the bicep as this was where she always had flu shots but the nurse said she was going to put it in the top of the shoulder. The applicant stated that the needle was then inserted at the top of her shoulder between the corner of her shoulder and neck. The applicant said that she then drove home and approximately an hour later noticed severe pain in her arm from her shoulder down her arm into her wrist.

The flu injection took place in the 2.30 pm to 3pm time slot, that is, during the last half hour of the applicant’s normal work hours. The applicant stated, and I accept, that she had the flu injection between 2.30 pm and 2.40 and left the stadium at about 2.50 pm and drove home as it was towards the end of her shift.
I am satisfied that the flu injection was administered during the applicant’s normal work hours. The vaccination arrangements were made by the respondent and the vaccination provided free to employees of the respondent. While the respondent described the flu vaccination program as part of Council’s pro‑active approach to workers’ health and wellbeing, which I accept, I would also consider that there was a benefit to the respondent as the vaccination programme would be expected to result in a reduction in the number of employees getting flu and having to take time off work or working while unwell and infecting work colleagues or members of the public.
For an injury to arise out of employment there must be a causal connection between the employment and the injury.
In Tarry v Warringah Shire Council [1974] 48 WCR 1 (Tarry), Glass JA (with whom Samuels JA agreed) held that in a given situation the injury may arise out of the employment, even though at the time it is sustained the worker is no longer in the course of his employment, and that the proper test for determining whether the injury arose out of the employment was as stated by Jordan CJ in Nunan v Cockatoo Docks & Engineering Co Ltd (1941) 41 SR (NSW) 119 when he described the employment as causing or contributing to the injury (at 125); by Fullagar J in Kavanagh v The Commonwealth (1960) 103 CLR 547 (Kavanagh), when he stated the need for causal connection between the employment and the injury; and by Starke J in South Maitland Railways Pty Ltd v James (1943) 67 CLR 496, when he said “the words ‘out of’ require that the injury had its origin in the employment” (at 502).
This reasoning has been applied in Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Aust Pty Ltd (2009) NSWCA 324 (Badawi) per Allsop P, Beazley and McColl JJA (at [72]-[79]). The passages quoted in Badawi include the propositions:
•       that whether an injury arose out of employment connotes “a certain degree of causal connection between the accident and the employment”;
•               that it would be sufficient to establish that an injury arose out of the 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;
•       that it is unnecessary to show that the employment exposed the worker to some special danger, and
•       that although the expression “arising out of” imports some kind of causal connection with the employment, it does not necessitate direct or physical causation and it should be asked “was it part of the injured person’s employment to hazard, to suffer, or do that which caused his injury?”
In Roncevich v Repatriation Commission [2005] HCA 40; 222 CLR 115 (Roncevich), the High Court considered an application by a soldier, who was injured when he fell inside his barracks after returning inebriated from the Sergeant's Mess, for compensation (in respect of analogous legislation which required proof that the injury “arose out of” his defence service). The Court was satisfied that:
“…whether an event arises in the course of an activity, or as here, out of ‘an activity’, depends upon such circumstances as to the nature of the person’s employment, the circumstances in which it is undertaken, and what, in consequence, the person is required or expected to do to carry out the actual duties.” (at [23], McHugh, Gummow, Callinan and Heydon JJ)
On the facts of the case, the plurality held that:
“…[t]here is little doubt in this case that there was a requirement, albeit not one to be found in formal military orders, and an expectation, of attendance at the Sergeant’s Mess and the consumption in some quantity, even perhaps to the point of intoxication short of physical incapacity, of alcoholic drinks” (at [24]).
There are notable features of the evidence in the present case which support the conclusion the injury caused by the flu injection arose both out of and in the course of the applicant’s employment.
For a number of years the respondent arranged for its staff to have flu injections. Before 2020 those injections were undertaken at the respondent’s depot, although the venue for the 2020 staff injection program was moved to a different location because of Covid concerns. The respondent contracted to a local medical centre for these flu injections to be given during 2020. It can be inferred that this was for the mutual benefit of both the working staff and the respondent, not merely by promoting intangible benefits from good employment relationships but more importantly by safeguarding the health of the respondent’s workforce. The respondent had a practical interest in avoiding absenteeism by its workforce, including the applicant as well as other staff workers, and providing the flu injections could diminish the spread of illness among both the respondent’s staff and its customers. It is common knowledge, of course, that worker absenteeism from contracting and spreading of the flu is expensive to employers, and that worker illness from flu can limit the productivity of an employer’s workforce even when absenteeism does not result.
The email headed “Flu vaccination email” dated 2 April 2020 was sent by Ms Symonds in her capacity as the respondent’s “WHS Team Leader”. So plainly the flu injection arrangements were a “work, heath, safety” initiative which was of importance to the respondent. This is confirmed where the email states “The Council are again offering free onsite flu injections to Council employees”, and later states “We have undertaken significant collaboration with the medical centre in order to be able to deliver the vaccinations this year”.
The Council, it appears, was offering this service not to members of the general community but instead only to the Council’s own employees. Also, it appears that this service by a local health centre was being offered by the Council “free” to Council employees, and that the Council, and not any employee, was itself responsible for covering or subsidising the cost charged for this treatment by a local health centre. Further, the email made clear that the injection arrangements for 2020 had been achieved as the result of the Council or its WHS section having “undertaken significant collaboration with the medical centre in order to be able to deliver the vaccinations this year.”
The email states, of course, that these vaccinations “are not a requirement of Council and it is up to individual employees as to whether they receive the vaccination”. Similarly, Ms Green’s statement says that, in effect, having the vaccination itself was a voluntary decision for the Council staff, it was “not mandatory” and not a requirement to perform any role or duties within the council, and that whether someone wished to receive the injection “was entirely up to them”.
Nevertheless there is an important difference between (a) what the applicant consents to when completing online forms and having the vaccination administered by the medical centre, and (b) what obligations the applicant undertakes if she decides she wishes to have the vaccination and proceeds to complete the online booking form. Her action in completing the online booking form involved at that stage making a commitment to the Council involving her compliance with various stipulated procedures, timetables and ancillary obligations, and her co-operating with the Council and the medical centre. For her to so comply and co-operate was expectable and reasonable conduct by her as part of her duties as a Council employee.
Without listing verbatim all of the details found in the email of 2 April 2020, it is evident that the respondent’s WHS Team Leader in that email notified the applicant, once she had given her consent by completing the online booking form, that she must be available during the listed dates and times, must not book in if she cannot make the appointment, “must receive a booking confirmation to receive a vaccination within an allocated timeslot”, must “ensure you arrive on time”, must “have your completed declaration (hard copy) with you”, and must “ensure you comply with social distancing measures; 1 person per vehicle”.
The respondent’s communication with the applicant after she had freely committed to have the vaccination, were sufficient to convey to the applicant the respondent’s expectation that she would thereafter act in accordance with the respondent’s instructions concerning having the injection at the time, date and place set out in the email. The email also told her that further information would be emailed to her after she had completed the online booking form. Clearly, the respondent expected that she would act in accordance with the information which it sent to her.
Further, the applicant was attending the location where the injection was to be given during her normal paid working hours and where her normal wage would continue to be payable without any deduction for “lost time” while travelling to, or attending at, the chosen venue for receiving the injection as organised by the respondent. The applicant was clearly expected by the respondent to co-operate with the respondent to ensure minimal disruption of its workforce. Therefore, it is unsurprising that the email of 2 April 2020 also states:
“People Leaders be will required to coordinate their staff to ensure limited disruption in your work groups due to staff leaving site to attend sessions”.
There is more than sufficient evidence to establish that the applicant’s injury arose in the course of her employment.
There is also a sound basis for concluding that the injury arose out of the applicant’s employment. The respondent’s actions in organising the place and circumstances of the vaccination were a substantial and material contributing factor to the vaccination injury caused to the applicant, as the following evidence, along with other evidence discussed in this decision, establishes.
The respondent chose, coordinated and arranged with the medical centre for some features of the manner in which the vaccination of the applicant and other Council staff occurred. As the email of 2 April 2020 states, it was the respondent which induced the applicant, as its employee, to have the vaccination injection done by staff of the medical centre which involved the applicant being injected while she sat in her car. The alternative to this method would have required having the flu injection done by a general medical practitioner or pharmacist at a surgery or pharmacy without the added burden complicating the task by of having the injection done by someone standing outside a parked vehicle trying to inject the arm of a person seated in the driver’s seat while exposing the arm through an opened car window. This possibly awkward method was inferior to conventional flu injection procedures at a surgery or pharmacy, because a nurse standing outside while injecting an arm of a person seated inside must have found it harder to choose the best injection site and complete the injection safely with the needle having the appropriate angulation and depth of penetration, and to best control the forcefulness of intrusion and removal of the needle safely.
The evidence sufficiently shows that there was an injury done to the applicant’s arm because of either an unfortunate or avoidable mishap in relation to the method of performing the flu injection. The applicant says she pulled the sleeve of her T shirt above her right shoulder, and assumed the needle was going to occur in her right arm near the bicep as that was where she had always had flu shots, but the nurse then requested that she pull her sleeve further over the shoulder so she could put the injection in the top of the shoulder. Then the applicant says that having pulled the sleeve further over her shoulder the nurse inserted the needle in the top of her shoulder.
Mr Hone’s email of 15 April 2020 noted that when the flu shot was injected it was not done in the front or side of the shoulder but was administered “in the back”. Ms Green in her email dated 21 May 2020 said that the applicant reported she was wearing a T‑shirt and had lifted that up to allow the nurse to place the vaccination in the side of the shoulder, but the nurse requested she move the T‑shirt further back to inject the back side of the shoulder. Ms Green said that the applicant reportedly questioned this and the nurse confirmed it was the correct location.
Dr Doig was told by the applicant that the injection was administered over the top of the shoulder. He concluded that the anatomical site of the described injection “is certainly not advised within the administration procedure recommended in the medical literature”, and later referred to the possibility that the influenza injection was “inserted in an inappropriate anatomical location.” Dr Clayton referred to the vaccination being inserted incorrectly. Dr Platt stated that the applicant developed symptoms after an injection given in the back of the shoulder which was not the usual place.
The available evidence establishes that the particular method used for the flu injection was inappropriate and caused some injury to the applicant’s right arm. Such injury resulted from the respondent having caused the applicant to have her flu injection at a drive-through clinic organised by the respondent, whereas otherwise it is most likely that the applicant would have received any flu injection in a conventional medical setting at the premises of a general medical practitioner or pharmacist, without the need to receive the injection in a more awkward setting through an open vehicle window. Alternatively, the applicant instead may have forgone or postponed having any flu injection at all. The nurse’s error in choosing the location of entry of the needle which caused an injury was attributable to a range of possible factors including awkward access for administration of the injection, lack of care, skill or training of the nurse, and failure by the nurse to obtain proper informed consent from the applicant to the nurse injecting at an unusual location on the applicant’s body which involved unnecessary additional risks through needle injury. The respondent’s actions in arranging for the applicant to be injected as part of a protocol chosen and approved of by the Council’s officers were relevantly a significantly contributory factor in the applicant suffering injury from the injection. There is sufficiently substantial causal connection between the applicant’s employment and any injury sustained by her to enable the conclusion that any injury, thus sustained, arose out of the employment. However, it is a separate question of what that injury actually was. This issue is discussed later in these reasons for decision.
Similarly any injury the applicant suffered from the injection arose in the course of her employment.
“The course of employment” involves the worker’s normal working hours at his place of employment but extends beyond a worker’s normal hours and place of work, to “the natural incidents connected with the class of work”. If a worker “is doing something which is part of or is incidental to his service”, he is in the course of his employment: Whittingham v Commissioner of Railways (WA) [1931] HCA 49; (1931) 46 CLR 22. Therefore, service is not confined to the actual performance of the work that the worker is employed to do, but includes all things incidental to the performance of that work.
In Comcare v PVYW [2013] HCA 41; 303 ALR 1(PVYW) the majority (French CJ, Hayne, Crennan and Kiefel JJ) said:
“The starting point in applying what was said in Hatzimanolis, in order to determine whether an injury was suffered in the course of employment, is the factual finding that an employee suffered injury, but not whilst engaged in actual work. The next enquiry is what the employee was doing when injured.
For the principle in Hatzimanolis to apply, the employee must have been either engaged in an activity or present at a place when the injury occurred. The essential enquiry is then: how was the injury brought about? In some cases, the injury will have occurred at and by reference to the place. More commonly, it will have occurred while the employee was engaged in an activity. It is only if and when one of those circumstances is present that the question arising from the Hatzimanolis principle becomes relevant. When an activity was engaged in at the time of injury, the question is: did the employer induce or encourage the employee to engage in that activity? When injury occurs at and by reference to a place, the question is: did the employer induce or encourage the employee to be there? If the answer to the relevant question is affirmative, then the injury will have occurred in the course of employment.
It follows that where an activity was engaged in at the time of the injury, the relevant question is not whether the employer induced or encouraged the employee to be at a place. An employer's inducement or encouragement to be present at a place is not relevant in such a case.” (at [38]-[39])
For the purposes of workers compensation law, an injury is more readily seen as occurring in the course of employment when it has been sustained in an interval or interlude occurring within an overall period or episode of work than when it has been sustained in the interval between two discrete periods of work.
In Cudgegong Soaring Pty Ltd v Harris (1996) 13 NSWCCR 92, it was found that the worker was required to live at an airfield as a caretaker and flying instructor. He was testing a prototype glider when it crashed. In the Court of Appeal, it was held the testing occurred during a break between periods of employment as caretaker, and that the testing activity was for the benefit of the Club and encouraged by it. Applying Hatzimanolis, the worker was held to be in the course of employment when injured.
In Commonwealth v Oliver [1962] HCA 38; (1962) 107 CLR 353 (Oliver), the worker and some others were playing a game of cricket outside at the employer’s premises during their half hour lunch break, when the worker tripped and was injured. It was ultimately held in the High Court that the worker was injured in the course of his employment. The employees would as a matter of course remain on the premises at lunchtime and the lunchtime game was a “recognised practice”. It was organised by the employees’ social club and “countenanced, if not encouraged” by the employer. Despite a sign saying games may not be played in the area where the game was regularly played, the prohibition against playing was not enforced by the employer. Dixon CJ said that “the course of employment has doubtless widened its practical boundaries with the enlarged conception of what belongs to the factory or other organised industrial unit in the amenities and welfare of the staff or labour force”.
In Park v Peach [1967] VR 558, the question was whether it was reasonably incidental to the work of a taxi-driver that he should leave his cab for a moment to cross the street and buy a newspaper. The fact that the employer had indicated his concurrence in this practice was relevant, but it seems that the court would have found for the worker, even in the absence of that factor. It seems therefore that “reasonably incidental” to the employment went somewhat beyond the concept of the acts included in the man’s duties under his contract of employment and will extend to acts that are not inconsistent with those duties.
In Wolmar v Travelodge Australia Ltd (1975) 26 FLR 249 the worker, a housemaid at one of the respondent’s motels, was invited by the manager of the motel, but not directed, to attend a staff Christmas party to be held at the motel outside working hours. She was injured at the party. It was held that her injury arose in the course of her employment, principally on the grounds that it was a social occasion centred around the employer-employee relationship.

In Commonwealth v Lyon (1979) 24 ALR 300, the worker was injured playing football in a team representing his employer. The teams in the competition represented various government departments and instrumentalities. The employer provided change facilities and transport to the sporting ground where they played. The results were reported in the employer’s publication. It was accepted practice that players could absent themselves from work on the afternoons of games. Deane J, applying Oliver, held that the worker was in the course of his employment when injured.
Neither of the parties referred to the decision in Harrison v Goodyear Tyre and Rubber Co (Aust) Ltd [1952] WCR 3, where a worker who received an anti-cold injection from a service provided by the employer, and was incapacitated as a result, was held not to have gone outside the sphere of employment.
The present case presents the same features as led Courts in some of the above cases to find the injury arose in the course of employment. The respondent induced and encouraged the applicant to attend the nominated venue and there present her arm through her open car window so the injection could be given by a nurse. There was a benefit to the respondent in persuading the applicant to receive an injection in accordance with the protocol set out in the email of 2 April 2020. It was accepted practice for staff such as the applicant to travel from her usual workplace to receive free flu injections organised by the respondent. Also having the injection was not inconsistent with the applicant performing her work-related duties and involved an absence from her normal workplace which was expressly permitted and encouraged by the respondent.
I am satisfied that the injection occurred within the applicant’s paid hours of employment. While the applicant was not engaged in the performance of her duties at the time and was not in her place of employment, the administering of the flu injection was, in my view, reasonably incidental to her employment. She had attended a place which she had been directed to by the respondent. The respondent organised and paid for the cost of the vaccinations, that is, the respondent had provided the vaccinations as a service to its employees.
I have concluded that the applicant was at a place where she ought to be by virtue of her employment at a time when she should be there and was permitted by the respondent to be there. The applicant was authorised by the respondent to attend the drive through clinic and the respondent met the costs of the vaccination. Oliver’s case shows that what is reasonably incidental in the performance of the worker’s duties must be judged from all the circumstances of the particular case including particular practices current the time. Even if the vaccination had taken place outside work hours, I would have been satisfied that the applicant was doing something that she was reasonably required, expected or authorised to do in order to carry out her duties.
I find that the applicant sustained an injury to her right shoulder on 9 April 2020 that arose out of and was in the course of her employment. The question of what precisely the injury was, will be addressed later under “Claim for medical treatment”.

Substantial contributing factor

The next issue to be determined is whether the applicant’s employment was a substantial contributing factor to her injury to the right shoulder, within s 9A of the 1987 Act.
In Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited [2009] NSWCA 324, a Full Bench of the NSW Court of Appeal considered the provisions of s 9A of the 1987 Act. Mercer v ANZ Banking Group [2000] NSWCA 138 was not followed. Allsop P, Beazley and McColl JJA (Handley AJA dissenting) held that the phrase “substantial contributing factor” in s 9A involved a causative element and said:
“81. Causation is a fact-laden conclusion which the courts have been told must be based on common sense: March v Stramare (E & MH) Pty Limited [1991] HCA 12; 171 CLR 506; and Nunan. It is not possible and indeed would be incorrect, therefore, to lay down a principle which can be applied unbendingly to all cases. Nonetheless, we consider the following observations should be made.
82. First, and perhaps most importantly, the word ‘substantial’, must be given effect. It is a word of ordinary English meaning. It is a word of evaluative concept. The word substantial has been said to be not only susceptible of ambiguity, but also to be a word calculated to conceal a lack of precision. Which of the various possible shades of meaning the word bears is determined by the context: Ice TV Pty Limited v Nine Network Australia Pty Limited [2009] HCA14;83 ALJR 585 at [154] at 617 per Gummow, Hayne and Heydon JJ. Here, the concept and purpose of the introduction of s 9A was to remove the possibility of compensation for injury with only a ‘remote or tenuous connection with work’. This was the purpose of the amendment: see the Second Reading Speech at [34] above. We would endorse the separate comments of Meagher JA and Davies AJA in Dayton v Coles Supermarket. As Meagher JA said, something which is minor is not substantial, or, as Davies AJA said, ‘substantial’ as it appears in s 9A means ‘in a manner that is real and of substance’ and does not apply where, as a matter of practical reality, the contribution of the employment to the injury was of, or had, ‘little substance’. We agree with his Honour that it is not useful to search for or use other terms, such as ‘large’, or ‘weighty’, or by way of further example, other concepts such as ‘predominant’. We consider that to do so may carry the vice of introducing concepts with different nuances from the words used by the legislature and which would take the meaning of the word beyond that needed to fulfil the purpose of the provision in its legislative context. In this respect, we prefer the views of Davies AJA in Dayton to the views in the extempore judgment in Bulga, which did not refer to Dayton and to the views of Mason P in Mercer. The words of the statute should be adhered to: ‘a substantial contributing factor’. The ‘proper link’ in the legislative context was a causal connection expressed by the words ‘a substantial contributing factor’, meaning one that was real and of substance. Given the conflict in the existing authority (Mercer, Bulga and Dayton), we think it important to clarify this issue.”

Allsop P, Beazley JA and McColl JA (Handley AJA dissenting) held that in determining whether a worker’s employment was a substantial contributing factor the matters specified in s 9A(2) must be taken into account to the extent that they are relevant. Their Honours considered that s 9A(2)(b) directed attention to the nature of the work performed and the particular tasks of that work and not to what the employee was doing at the actual time of the injury.
Basten JA concurred with the decision of the majority, considering that the causal test imposed by s 9A was more stringent than that imposed by s 4. He commented that if the conduct out of which the injury arose occurred in the course of employment and was the effective cause of the injury, absent misconduct on the part of the employee, the only conclusion reasonably open is that the employment was a substantial contributing factor to the injury. Basten JA said:
“Given that s 9A imposes a limitation upon an entitlement arising under s 9(1), which provision picks up the term “injury” as defined in s 4, the phrase ‘employment concerned’ should be understood as a reference to the ‘employment’ identified in s 4 out of which the injury arose or in the course of which the injury occurred.”

Considering the terms of s 9A(2) of the 1987 Act, I make the following observations and findings:
(a) “the time and place of injury”: the injury occurred during the applicant’s work with the respondent. I am satisfied that the injury to the right shoulder was referable to her employment with the respondent. The contribution of the applicant’s employment with the respondent was real and of substance and there was both a temporal and causal connection between the onset of her symptoms in her right shoulder and her work.

(b) “the nature of the work performed and the particular tasks of that work”: I am satisfied on balance that the applicant was offered the flu vaccination at the drive through clinic on 9 April 2020 because she was an employee of the respondent and the respondent had taken a proactive approach to the health and welfare of its employees and made arrangements for them to have flu vaccinations at the drive through clinic. It was the activity of having the flu injection which had been organized by the respondent at the drive through clinic and which was administered in an incorrect position that resulted in the injury to her right shoulder.

(c) “the duration of the employment”: The applicant had been employed by the respondent since1997 or early 1998, however, the duration of employment is not a significant consideration in this matter.

(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”: the respondent argued that the injury to the right shoulder would have happened anyway at the same stage of the applicant’s life. Dr Clayton was of the opinion that the rotator cuff pathology would have become symptomatic at this time in the applicant’s life. However, he did express the view that there was an injury from a misplaced vaccination resulting in synovitis of the posterior glenohumeral joint which would have proceeded to resolve with non‑operative management in the six to eight weeks following the vaccination. Dr Doig considered that the pre‑existing pathology, in particular the degeneration in the acromio‑clavicular joint may have become symptomatic in the future. He proceeded to state that on the balance of probabilities, the injection on 9 April 2020 appeared to have rendered the shoulder symptomatic and may have caused the pathology in the rotator cuff. Dr Jovanovic made a diagnosis of a rotator cuff tear and believed that the flu injection was only a coincidence as the appearance on x‑rays and MRI were consistent with a pre‑existing condition. He stated that it was hard to explain why she suddenly developed classic rotator cuff dysfunction symptoms following the flu injection on 9 April 2020. I accept that the applicant developed symptoms affecting the right shoulder following the flu injection and am satisfied on balance that there was no significant probability that the injury to the right shoulder caused by the flu injection would have happened anyway at the same stage of the applicant’s life if she had not been engaged by the respondent and attended the drive through clinic and had the flu injection on 9 April 2020.
(e)    “the worker’s state of health before the injury and the existence of any hereditary risks”: The worker commenced employment with the respondent in 1997 or early 1998. Although she had a degenerative condition in the right shoulder, she was asymptomatic at the time of injury. I am satisfied that it was the flu injection that she received that that was the real cause of an injury to the right shoulder.
(f)    “the worker’s lifestyle and his or her activities outside the workplace”: there are, in my view, no significant lifestyle matters relevant in this claim. There is no medical evidence that identifies any significant lifestyle matter or activity relevant in this claim.

On the facts of this matter and on consideration of the relevant authorities cited, I find that the injury to the applicant arose out of and in the course of employment and that there was a causal relationship between the injury and the work that the worker was required to do, that is, there was a causal connection with her employment. I am satisfied that her employment was a substantial contributing factor within the meaning of s 9A of the 1987 Act.

Claim for medical treatment

The applicant made a claim for the cost of the surgery and associated expenses carried out by Dr Jovanovic on 16 June 2020. The applicant did not claim for the cost of other earlier treatment, which appeared to have been paid for by Coffs Harbour Medical Centre.
Section 60 of the 1987 Act requires that it is “reasonably necessary” as a result of injury that medical expenses or related treatment or hospital treatment be provided. Benefits under this section are payable only so far as the treatment is reasonably necessary to remedy the injury to a worker.
The questions in this case that must be considered are:
i) what was the injury sustained by the applicant when she received the flu injection on 9 April 2020, and
ii) whether the treatment claimed was for the injury sustained on 9 April 2020.
In Reynolds v Royal Newcastle Hospital [1970] WCR 197 treatment which was necessary to prevent further injury or an aggravation of an existing medical condition which was not the result of a compensable injury was held not to fall within the section.
The surgery performed on 16 June 2020 was undertaken to repair a rotator cuff tear. In the Operation Record dated 16 June 2020, Dr Jovanovic described the procedure as an Arthroscopic SAD and mini open rotator cuff repair on the right side and also stated that the pre‑operative diagnosis and the post-operative diagnosis were both rotator cuff tear. He described the operative findings as a full thickness tear of the supraspinatus, significant impingement on the underside of the acromion and chronic sub‑acromial bursitis.
Dr Jovanovic believed that the flu injection was only a coincidence and that the appearance on x‑rays and MRI were consistent with a pre‑existing condition. He did say that it was hard to explain why she suddenly developed classic rotator cuff dysfunction symptoms following the flu injection on 9 April 2020.
I find that the purpose of the surgery carried out by Dr Jovanovic on 16 June 2020 was to repair the right rotator cuff. The question which then needs to be addressed is whether the injection on 9 April 2020 caused injury to the right rotator cuff or an aggravation, acceleration, exacerbation or deterioration of a pre-existing degenerative condition in the right rotator cuff.
The applicant relied on the opinion of Dr Doig. In his first report dated 27 October 2020 after “summary and assessment”, Dr Doig noted under “nature of conditions on examination” that the current examination findings were outlined above. What was, in fact, outlined above by Dr Doig were the clinical findings on examination. Dr Doig did not make a diagnosis of the nature of the condition on examination.
Dr Doig, in explaining the aetiology of the applicant’s right shoulder condition, did consider that there was a possibility that the influenza injection, which was inserted in an inappropriate anatomical location, may have resulted in rotator‑cuff tendon damage and the MRI scan of May 2020 revealed a florid, reactive, intra‑articular capsulitis which was consistent with a reaction to the vaccine. He then proceeded to express the opinion that there was strong medical evidence available that the flu injection on 9 April 2020 was a substantial contributing factor to the applicant’s right shoulder condition and rendered the shoulder symptomatic. He said that the medical literature had clarified that a badly placed vaccination injection needle could result in calcification of the rotator cuff and indeed rotator‑cuff tearing. He opined that, on the balance of probabilities, the injection on 9 April 2020 rendered the previously asymptomatic right shoulder symptomatic and may have caused the pathology in the rotator cuff. Dr Doig noted that the applicant had described the injection as being given directly into the top of the shoulder and experienced immediate, prolonged pain and restricted function following the injection. He noted that there was a possibility the needle actually penetrated the joint.
Dr Doig expressed the opinion that on the balance of probabilities, in the absence of any prior issues with the right shoulder, the need for the operative intervention was a direct result of, or as a consequence of the injection on 9 April 2020. He considered that the incident certainly contributed to the need for surgery.
The respondent relied on the opinions of Dr Clayton and Dr Jovanovic.
Dr Clayton was of the opinion that the rotator cuff pathology would have become symptomatic at this time in the applicant’s life and the pathology and requirement for surgery was in no way related to the vaccination. He was of the view that it was an injury from a misplaced vaccination resulting in synovitis of the posterior glenohumeral joint which would have proceeded to resolve with non‑operative management in the six to eight weeks following the vaccination. Dr Clayton considered that the pain within the shoulder was then superseded by the constitutional rotator cuff syndrome that would have presented at that time irrespective of the workplace and the vaccination.
Dr Gilliland, in a referral dated 18 May 2020 to Dr Jovanovic, noted that the applicant had developed severe right shoulder pain and probably adhesive capsulitis following an influenza injection. He reported she denied history of previous shoulder injury but had evidence of a chronic high grade full thickness supraspinatus tear with sub‑acromial arch impingement.
Dr Platt, in the WorkCover NSW Certificate of Capacity dated 15 May 2020, was uncertain as to whether the injury or disease was consistent with the applicant’s description of the cause, that is, the flu injection. She did comment that the injection must have aggravated something and noted that the MRI showed a chronic condition but the applicant had no symptoms previously.
I accept that the applicant developed severe right shoulder pain and adhesive capsulitis following the flu injection on 9 April 2020. This finding is supported by the opinion of Dr Clayton, Dr Gilliland and the MRI scan report of 15 May 2020. Dr Doig expressed the view that the MRI scan in May 2020 revealed a florid intra‑articular, glenohumeral, reactive capsulitis which could be consistent with penetration of the vaccine into the joint.
I am not, however, persuaded that the applicant suffered a rotator cuff tear or aggravation, acceleration, exacerbation or deterioration of a previously asymptomatic rotator cuff tear when she was given the flu injection on 9 April 2020. I do not consider that the weight of the evidence in this case supports such a finding. In particular, the treating surgeon, who had clearly turned his mind to the question of whether the flu injection had resulted in the need for the surgery that he performed, concluded that the development of rotator cuff dysfunction symptoms after the flu injection was coincidental. He considered that the appearance on x‑rays and MRI was consistent with a pre‑existing condition.
The applicant argued that the flu injection had caused a rotator cuff tear or else an aggravation, acceleration, exacerbation or deterioration of a previously asymptomatic rotator cuff tear. It was significant that Dr Doig said that he was unable to clarify the exact site of the needle puncture, nor the length of the needle. The absence of such information leads me to place less weight on his opinion that the injection on 9 April 2020 rendered the previously asymptomatic right shoulder symptomatic and may have caused the pathology in the rotator cuff.
Dr Clayton considered that the rotator cuff syndrome and rotator cuff tear was not consistent with a shoulder injury related to vaccine administration with a posteriorly placed injection. He was of the view that it was possible that an incorrectly positioned, deep, posteriorly located shoulder injection for vaccination, could result in irritation and inflammation of the shoulder joint capsule unrelated to the rotator cuff pathology.

I have preferred the opinion of Dr Clayton in respect of the question of whether the flu injection caused aggravation, acceleration, exacerbation or deterioration of a previously asymptomatic rotator cuff tear. His opinion was consistent with the opinion expressed by Dr Jovanovic.
It can be accepted that the injection caused a painful condition to develop, and that this painful condition led to the applicant seeking medical investigation, diagnosis and advice in order to determine the cause of the pain and to alleviate the pain. However, the applicant’s claim for medical expenses is confined to the cost of the surgery performed on 16 June 2020 and associated treatment. Prior to the date of this surgery an MRI scan on 14 May 2020 revealed a full thickness tear of the supraspinatus tendon. Dr Jovanovic, treating orthopaedic surgeon, in a report dated 3 June 2020 concluded that the MRI was consistent with a full thickness tear of the supraspinatus, and stated he had discussed treatment options with the applicant who was keen to proceed with the proposed surgery. Rotator cuff tear was both the pre-operative and post-operative diagnosis by Dr Jovanovic, who performed the surgery on 16 June 2020. The need for such surgery was not caused or materially contributed to by the injection injury.
I am not satisfied that the surgery undertaken by Dr Jovanovic on 16 June 2020 was reasonably necessary as a result of the injury on 9 April 2020.

Weekly benefits

The remaining issue to be determined is the claim for weekly benefits. The applicant claimed weekly benefits for the period of 14 May 2020 and from 16 June 2020 to 27 July 2020.
Given the findings that I have made above in respect of the surgery carried out by Dr Jovanovic on 16 June 2020 I am not persuaded that the applicant was entitled to weekly benefits for the period 16 June 2020 to 27 July 2020. I am satisfied that she would have been unable to work on 14 April 2020 due to the severe right shoulder pain and adhesive capsulitis following the flu injection on 9 April 2020. The applicant is therefore entitled to weekly compensation for the day of 14 April 2020 at the rate set out in the applicant’s wages schedule, that is, 95% of $1,140 per week, which equals $1,083.

[2021] NSWPIC 196

21 June 2021