The Department of Child Protection (DCP) must pay compensation and medical expenses to a youth worker who developed pericarditis after getting a COVID booster under a workplace vaccination directive, the South Australian Employment Tribunal has ruled.
Shepherd got a COVID booster in February 2022 as a requirement for his ongoing employment with the DCP. The DCP admitted that Shepherd’s pericarditis had been caused by the booster, but denied responsibility for the injury, arguing that it did not arise from Shepherd’s employment, but from a lawful State Government Public Health Order (PHO), issued under the Emergency Management Act 2004(EMA).
“The most significant aspect of this case, in my opinion, is that even though there was a Public Health Order in place, the Tribunal found the employer responsible anyway,” says Fam.
Many Australian employers have sought to deflect responsibility for injuries incurred under workplace COVID vaccine directives on the basis that they were simply following state government orders.
However, under workers compensation law, the workplace is liable if employment is “a significant contributing cause of the injury,” regardless of whether other factors also contributed, explains Fam.
Therefore, despite the PHO stipulating that the worker must be vaccinated as a part of his employment, “the Tribunal still found that the injury he suffered as a result of the vaccine was sufficiently related to his work and his employment for him to be compensated by the employer.”
Yet, many COVID vaccine-injured Australians are still falling through the cracks, says Dr. Faletic.
Based on the testimonies of injured Australians who have registered their details with COVERSE, Dr. Faletic says that in cases where the injuries are acknowledged by the Therapeutic Goods Administration (TGA), such as myocarditis or pericarditis, they are more likely to win workers compensation.
However, “when it comes to people with unacknowledged diagnoses or unclear diagnoses, this is where people are struggling to get compensated,” says Dr. Faletic.
Fam agrees that the fact that “there was no dispute” that Shepherd’s pericarditis injury was vaccine-related (the diagnosis was documented by two cardiologists) would have been beneficial to his case. Less common diagnoses “will be the challenge because there’s still a lot of fear with doctors and medical professionals in admitting causation,” says Fam.
Dr. Faletic is encouraged by the outcome, but remains highly critical of the lack of alternative pathways for COVID vaccine-injured Australians to receive support.
“For many injured Australians who have already lost a lot of money because of their injury, they just don’t have the resources to pay for lawyers to fight for compensation in the courts. Some are accepting paltry compensation offers that don’t even cover their costs because they don’t have the resources to fight it,” laments Dr. Faletic.
The action seeks to hold the TGA to account for alleged, “negligence, breach of statutory duty and misfeasance in public office” in its failure to properly approve and monitor the COVID vaccines, resulting in harms to Australians.
Nevertheless, Fam believes the South Australian Tribunal decision is an important step forward because, “Employers are on notice that they are liable for injuries suffered as a result of their policies and directions.”
Fam concludes, reflectively, “Sometimes corporations and government departments have to actually experience the consequences of their actions before they think twice and correct course .... It’s really sad that it’s taking people being seriously injured and killed for that to happen.
“Cases like this will mean that employers are reluctant to implement policies enforcing medical procedures in the future, which is great, because they were never qualified to do so in the first place.”
