1. The respondent is to pay the applicant's reasonably necessary medical and treatment expenses pursuant to s 60 of the Workers Compensation Act 1987.

A brief statement is attached setting out the Commission's reasons for the determination.

1. Anh Ngoc Vo Ha (the applicant) seeks payment of weekly compensation together with medical and related expenses as a result of an alleged psychological injury said to have occurred in the course of her employment with the respondent, HealthShare NSW.
2. In or around September 2021, a COVID-19 vaccine mandate was implemented by the respondent. In her statement, the applicant says she was fearful of complying with the mandate given the novel nature of the vaccine and was not comfortable complying with the mandate due to personal health reasons.
3. The respondent denied liability in relation to the alleged injury on two bases. It firstly alleged the applicant had not suffered a work-related psychological injury (ss 4, 9A of Workers Compensation Act 1987 (the 1987 Act)) and secondly that if the applicant did suffer a psychological injury, it was wholly or predominantly caused by the reasonable actions of the respondent with respect to discipline, performance appraisal, provision of employment benefits and/or dismissal (s 11A of the 1987 Act).
4. At the preliminary conference, the parties indicated the applicant's pre-injury average weekly earnings (PIAWE) were agreed. However, issue is now taken with the calculation of the applicant's PIAWE. Her capacity for employment is also in dispute.

1. The parties agree that the following issues remain in dispute:

(a) whether the applicant suffered a psychological injury;

(b) if so, whether the applicant's injury was wholly or predominantly caused by the reasonable conduct of the employer with respect to performance appraisal, discipline, provision of employment benefits and/or dismissal;

(c) the calculation of the applicant's PIAWE, and

(d) the applicant's capacity for employment.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

1. 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.
2. At the preliminary conference, the applicant amended the deemed date of injury to 29 January 2024 without objection.
3. The matter was listed for hearing before me on 9 October 2025. At the hearing, Mr McManamey instructed by Ms Palivos appeared for the applicant. Ms Goodman instructed by Mr Gilmour appeared for the responded.
4. At the conclusion of the hearing, orders were made for the provision of written submissions, which directions were complied with.

1. The following documents were in evidence before the Commission and considered in making this determination:

(a) Application to Resolve a Dispute (the Application);

(b) Reply;

(c) applicant's Application to Lodge Additional Documents (ALAD) dated 26 September 2025;

(d) applicant's second wages schedule;

(e) respondent's ALADs dated 27 November 2025 and 5 December 2025, and

(f) respondent's wages schedule.

1. There was no oral evidence called at the hearing.

Whether the applicant suffered a psychological injury

1. In its submissions, the respondent noted there was a dispute in relation to injury, alleging the applicant's condition did not fall within ss 4, 9A and 4(b)(ii) of the 1987 Act. Having outlined the dispute, however, the respondent made no substantive submissions in relation to it, a fact not lost on the applicant in her own submissions.
2. Absent the respondent making substantive issues on the question of injury, I have little difficulty accepting the applicant suffered a work-related psychological injury.
3. The respondent's independent medical examiner (IME) Dr Macdonald stated in his report dated 14 March 2025:

"I believe Ms Ha suffers from major depressive disorder with anxious distress. Her symptoms are characterised by depressed mood, anhedonia, significant amotivation, hopelessness, decreased socialisation and concentration problems. She also displays sleep disturbance and persistent anxious ruminations regarding NSW Health. Ms Ha describes a deep mistrust of NSW Health and believes she had been bullied and intimidated by them. Based on her account and the available information, it is apparent that the COVID vaccine mandate and subsequent perception of bullying and intimidation by NSW Health is the cause of her condition".

1. This opinion is broadly consistent with that of the applicant's IME, Dr Saboor, who stated in his report dated 31 October 2024:

"In summary, Ms Vo Ha presented with symptoms of major depressive illness with anxious distress in the context of a reported issue at work regarding COVID mandate, being pressured and receiving numerous correspondence. When she replied, she was ignored. She was pressured when she had exemption and when she was on leave. She reported that this continued and caused her anxiety. She started feeling anxiety since 2021 and she continued to experience fear and anxiety until January, she received a warning letter, which aggravated her anxiety and became worse."

1. In light of the consistency of opinion between the parties' IMEs, I am comfortably satisfied on the balance of probabilities the applicant suffered a work-related psychological injury.

1. It is not controversial that s 11A is a two-step test which the respondent must satisfy in order to raise a complete defence to the applicant's claim. Not only must the conduct relied on by the respondent be the whole or predominant cause of the applicant's injury, it must be reasonable. Both requirements must be satisfied in order for the defence to be made out, and the respondent carries the onus of proving this is the case.
2. The factual matrix surrounding this case is not controversial. There is no issue the applicant's injury was brought about by her reaction to the imposition of a COVID-19 vaccination mandate. Indeed, the applicant's submissions do not take issue with the "whole or predominant cause" element of the s 11A defence. Rather, what is in issue is whether the actions of the respondent on which it relies were reasonable.
3. The question of reasonableness is one of fact, weighing all the relevant factors into consideration. As Geraghty J noted in Irwin v Director General of Education NSWCC 14068/97, 18 June 1998 (Irwin):

"That test is less demanding than the test of necessity, but more demanding than the test of convenience. The test of 'reasonableness' is objective and must weigh the rights of employees against the object of the employment. Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness."

1. Consistent with his Honour's reasoning, Trust CCJ noted in Ivanisevic v Laudet Pty Ltd (unreported, 24 November 1998):

"In my view, when considering the concept of reasonable action, the Court is required to have regard not only to the end result, but to the manner in which it was affected."

1. These passages were quoted with approval by Foster AJA (Sheller and Santow JJA agreeing) in Commissioner of Police v Minehan [2003] NSWCA 289 (Minehan), where his Honour said:

"I prefer the construction which has been accorded to it in the decisions in the Compensation Court referred to in this judgement and in his Honour's judgement. The words 'reasonable action', in a statute dealing with workers' compensation rights of employees should be given a broad construction, unfettered by considerations as to whether the employee can or cannot also bring an action at common law against the employer, founded upon breach of duty of care." (at [42])

1. In Ritchie v Department of Community Services [1998] NSWCC 40; [1998] 16 NSWCCR 727, Armitage J said:

"It is apparent that the test in this case is an objective one where one must weigh the consequences of the respondent's conduct and the reasons given for it. It follows, of course, from the objective nature of the test, that the evidence given by the applicant as to the perceived unreasonableness of the respondent's conduct or from the respondent as to the reasonableness of its conduct from its perspective will not be determinative of the issue."

1. Reasonableness is judged having regard to the fairness appropriate in the circumstances, including what went before or after a particular action: see Burke J in Melder v AUSBOWL Pty Ltd [1997] 15 NSWCCR 454. Armitage J in J_ackson v Work Directions Australia Pty Ltd_ [1998] NSWCC 45 stated "only if the employer's action in all the circumstances was fair could it be said to be reasonable" (see also Northern NSW Local Health Network v Heggie [2013] NSWCA 255 (Heggie), where it was held that the reasonableness of a person's actions is assessed by reference to the circumstances known to that person at the time the action is taken).
2. The facts surrounding the conduct on which the respondent relies are also largely uncontroversial. They can be broadly summarised as follows.
3. The applicant was advised that Public Health Order 2021 required all NSW Health staff to have mandatory COVID-19 vaccinations, with the first injection required by

30 September 2021. 4. In her statement, the applicant explains she was fearful to comply with the vaccine mandate given the experimental and novel nature of the vaccine. She took long service leave from 13 September 2021 and requested she be allowed to take it until May 2023. That application for leave was not approved, and the applicant submits no reason has been given for the failure to approve the leave. Instead, leave was approved until 4 July 2022, then extended until 29 July 2022. 5. On 7 October 2021, the respondent wrote to the applicant advising she had not provided the evidence to meet the vaccination/medical contraindication requirement and accordingly was unable to perform her role in the NSW Health Service. She was invited to provide any submissions as to why her employment should not be terminated. The letter acknowledged the process was likely to be distressing and advised the applicant of resources available to her, including an employee assistance programme. 6. On 19 October 2021, the applicant was issued with an immunisation medical exemption which was valid until 19 April 2022. 7. Importantly, further exemption certificates were issued by the applicant's general practitioner on 1 April 2023 and 11 December 2023, the last of which was valid until 12 March 2024. 8. On 19 November 2021, a further letter was provided to the applicant which advised the Public Health Order had been rescinded and replaced with a further Public Health Order requiring NSW Health staff to have one dose of an approved COVID-19 vaccination or two doses by 30 November 2021. This letter also advised the applicant that the Secretary of the Health Department had made vaccination against COVID-19 a condition of current and future employment in the NSW Health Service. 9. This letter noted the applicant continued to not meet the vaccination requirements and provided her with a final opportunity to give appropriate evidence of either a vaccination or an exemption due to a medical contraindication. A further letter dated 15 June 2022 was sent to the applicant providing her with an opportunity to comment on proposed termination of her employment due to failure to meet the COVID-19 requirements. 10. On 5 September 2022, a direction was issued on the applicant outlining the requirements to meet COVID-19 vaccinations and attaching a policy directive. On 19 January 2023, a letter to the applicant provided notice of allegations of misconduct, and noting no evidence had been provided by her to meet the COVID-19 vaccination requirements and set out allegations of the alleged failure by the applicant to address NSW Health Policy Directives. 11. On 27 February 2023, a letter was provided to the applicant which found she had been non‑compliant with NSW Health Policy Directives and that that non-compliance amounted to misconduct. She was provided with an opportunity to respond to those findings and show cause why termination of her employment should not be considered. 12. On 5 June 2023, the applicant returned to work under an approved COVID-19 medical contraindication. On 15 August 2023 and 25 August 2023, the applicant was reminded of the vaccination requirements and documents which she had to lodge prior to 5 September 2023, which was when her medical contraindication expired. 13. On 31 August 2023, the applicant was sent a further letter indicating her approved COVID-19 medical contraindication certificate was due to expire on 5 September 2023. On 13 September 2023, the application was given notice of allegations of misconduct, noting her medical contraindication had expired on 5 September 2023 and no evidence had been provided to meet the COVID-19 vaccination requirements. 14. A further letter was forwarded to the applicant on 10 October 2023, which said that a decision had been made and the applicant was found to have been non-compliant with the Health Policy Directives, which amounted to misconduct. She was provided with an opportunity to respond to the findings and show causes to why termination of her employment should not be considered. 15. A further letter was forwarded to the applicant on 14 November 2023 stating the show cause process set out in the letter of 10 October 2023 would continue. 16. On 13 November 2023, the applicant provided a further temporary medical contraindication. Receipt of that certificate was acknowledged in a letter to the applicant dated

29 November 2023. 17. On 8 January 2024, a final decision and notice of a formal written warning was issued to the applicant based on the protracted periods of non-compliance with COVID-19 vaccination and breach of the Health Policy Directives. The letter noted it was expected the applicant would comply with policy directives and obey the lawful and reasonable instructions given. The letter encouraged the applicant to take steps between 8 January 2024 and 13 March 2024 to achieve compliance with the vaccination requirements and to report to her manager and be compliant with the vaccination requirements on and from 13 March 2024. 18. Upon receipt of the letter dated 8 January 2024, the applicant commenced a period of stress leave and lodged a workers compensation claim. 19. As noted, there is a clear temporal and causal connection between the notification of the requirement to be vaccinated against COVID-19 and cooperate with NSW Health Policy Directives and the development of the applicant's psychological injury. 20. The applicant submits that at the time that the relevant Public Health Order provided a worker in her position must not work as a healthcare worker after 30 September 2021 unless he or she has received at least one dose of the vaccine. 21. As the applicant noted, at 30 September 2021 and 7 October 2021, she was not in breach of the order as she had not done any work as a healthcare worker since 13 September 2021, and was not intending to carry out any such work until the expiration of her long service leave, for which she had sought an extended period to May 2023. The applicant ultimately remained away from work until 5 June 2023, at which time she returned with a vaccination contraindication certificate. 22. The applicant conceded her submissions that the letter of 7 October 2021, advising her she did not meet the Public Health Order requirements, and the respondent was considering the viability of her employment and requesting show cause submissions was the primary cause of her injury. She submits the letter was unreasonable, as the applicant was not in breach of the Public Health Order and as known to the respondent was not intending to return to work for a period of over 20 months. 23. The applicant submits the respondent, which carries the onus in relation to reasonableness under s 11A has not advanced any argument why it was necessary for the applicant to be vaccinated during the period in which she would not be performing the work of a health worker. She also notes she was diagnosed with adjustment disorder with anxiety and depression, was diagnosed by her general practitioner on 15 October 2021. As noted, on 19 October 2021, the applicant was issued with an immunisation medical exemption which was valid until 19 April 2022. Further exemption certificates were issued by the applicant's general practitioner, the last of which was valid until 12 March 2024. 24. The respondent submits its actions in writing to the applicant and reminding her of her obligations to be vaccinated and/or to obtain a medical exemption for within the characterisation of discipline in s 11A. It relies on the decision in K_ushwaha v Queanbeyan City Council_ [2002] NSWCC 25 and submits that by its various letters to the applicant, the respondent was drawing her attention to the fact the Public Health Orders required her to be vaccinated and/or provide a medical exemption before she could return to work. 25. I accept that submission, however, I note the applicant had advised the respondent she was not intending to return to work until 2023 after an extended period of long service leave, and from October 2021 had provided the respondent with vaccination exemption certificates. 26. The actions of the respondent in writing to the applicant on a repeated basis to set out the requirements of her employment and potential consequences of non-compliance might, of themselves, appear reasonable. However, the cases make it clear one must examine the context in which such actions are taken. 27. The COVID-19 pandemic was (and for those still effected, remains) a fraught time. I have no doubt the respondent was acting with noble intentions and trying to minimise the risk to both staff and patients by mandating vaccinations for its staff. However, one must not just look at the general circumstances, but also the specific facts of this matter. 28. There is no issue the applicant applied for a period of extended leave. As such, she did not intend to carry out duties as a health worker for the period during which the health order was in place. Accordingly, she was not in contravention of the health order in the specific circumstances of this case, as she both presented exemption certificates and removed herself from the work environment by taking extended leave. 29. Moreover, the respondent has not provided any evidence as to why it refused the applicant's application for extended leave, such as statement or contemporaneous evidence that the proposed leave was untenable from a management perspective. Rather, what is apparent on the evidence before the Commission is the applicant requested an extended period of leave in circumstances where she was concerned about the vaccine and therefore was removing herself as a potential risk from the respondent's employ. She did so in accordance with the respondent's own policies, however, her application for leave up to and including 2023 was refused, and instead she was, on her evidence, granted leave only until 2022. 30. The applicant also obtained from time to time COVID-19 contraindication certificates, however, the respondent still provided her with letters suggesting she had committed misconduct and that there were disciplinary ramifications as a result of that situation. 31. On balance, taking into account the applicant had agreed to voluntarily remove herself from the employ of the respondent by making use of her leave entitlements, and then presented with contraindication certificates, I am not satisfied the actions of the respodnent were reasonable in the circumstances, despite undoubtedly being motivated by worthy intentions. 32. As the applicant notes in her submissions, there is no evidence she worked at any time after 13 September 2021 except when she had a medical contraindication certificate. At no time, therefore, was she in contravention of the Public Health Order despite continued assertions by the respondent that she was. 33. In my view, the applicant had taken appropriate action by taking extended leave and thereby eliminating any risk that she could have caused to patients or fellow staff members throughout the period of pandemic restrictions. 34. I also accept the respondent's actions were not reasonable in delaying approval of extensions to the applicant's claim for long service leave. That leave is an entitlement, and no valid reason has been proffered to explain why the original application was not approved in full. 35. On balance, having regard to the totality of the evidence, I am not satisfied that the applicant's injury was wholly or predominantly caused by reasonable actions of the respondent with respect to discipline, provision of employment benefits, or performance appraisal, or dismissal. 36. Accordingly, the defence under s 11A fails.

1. Somewhat astonishingly given the applicant was employed by government department, the parties have been unable to agree on her PIAWE. The applicant claims her correct PIAWE is $3,083.74 per week, and tenders pay slips in support of that submission. The respondent submits the applicant's PIAWE as at 29 January 2024 was $2,442 and provides calculations in support of that figure together with source material.
2. At the preliminary conference, the parties indicated PIAWE had been agreed, and both originally lodged wages schedules alleging a PIAWE consistent with the respondent's submission. It was only in support of the applicant's submissions that a further wages schedule was lodged alleging the updated PIAWE.
3. On balance, having regard to the pay slip evidence, I am satisfied the applicant's submission is correct. The earnings report attached to the respondent's ALAD of 27 November 2025 does not attach any source documentation to support the calculations made therein. By contrast, the applicant attaches payslips which reveal her base weekly pay rate was $3,083.74 as at 14 January 2024. That same payslip, however, reveals payments to

14 January 2024 of $75,816.11. A simple process of dividing that figure by 26 (the number of weeks in the relevant financial year) equates to a PIAWE of $2,916.00, subject to indexation. I therefore find the applicant's PIAWE is this figure.

1. On balance, the medical evidence clearly discloses the applicant remains totally unfit for employment as a result of her injury and has been since the date of injury. Dr Macdonald, IME for the respondent stated in their report dated 14 March 2025:

"I do not believe Ms Ha currently has any capacity for work. She continues to experience moderate to severe symptoms of depression and anxious ruminations. At present, I believe she is totally incapacitated for work due to the ongoing impact of the subject injury on her mood, motivation, energy, attention, concentration, memory, and self-esteem. Ms Ha has significant impairment in her ability to tolerate stress and pressure at present and will be unable to return to her previous role (or equivalent)."

1. That evidence is consistent with the views of the applicant's IME, Dr Saboor. In their report dated 31 October 2024, Dr Saboor also expressed the view of the applicant has significant psychological problems and has had no capacity for employment since the date of injury.
2. In my view, the medical evidence is overwhelming. The applicant remains totally incapacitated for employment. This being so, she is entitled to weekly compensation pursuant to ss 36 and 37 of the 1987 Act as applicable, and subject periodic indexation as set out on page one of these reasons.

1. No specific dispute arose in relation to medical expenses. Rather, the claim for them rises and falls on the decision in relation to liability. Having found for the applicant, it follows a general order will be made that the respondent pay the applicant's reasonably necessary medical and treatment expenses pursuant to s 60 of the 1987 Act.

1. For the above reasons, the Commission will make the findings and orders set out on page one of the Certificate of Determination.