Can Covid-19 Be Compensable?
Amendment of the Workers Compensation Act 1987 – Presumption in Favour of Essential Workers Who Contract COVID-19
It is important that employees, employers and insurers are aware of the circumstances in which a COVID-19 infection might constitute a compensable injury.
There may be particular concerns among ‘essential’ or ‘frontline’ workers who are at a higher risk of contracting the disease in the course of their employment.
Generally, in order to gain an entitlement to compensation under the Workers Compensation Act 1987 (‘the 1987 Act’), the worker must establish both of the following elements:
- That they suffered an injury arising out of or in the course of their employment (Section 4 of the 1987 Act); and
- (A) For non-disease injuries, that employment was a substantial contributing factor to the injury (Section 9A of the 1987 Act).
- (B) For disease injuries, the worker must establish that employment was the main contributing factor to the disease or the aggravation of the disease (Section 4(b)(i) or(ii) of the 1987 Act).
That being the case, an infected worker might have had difficulty in proving that they contracted the infection in the course of their employment, or that their employment was the most likely cause of their infection for the purpose of making a workers compensation claim.
The Amendments
The 1987 Act was amended by the COVID-19 Legislation Amendment (Emergency Measures – Miscellaneous) Bill 2020 on 14 May 2020. The amending Act introduced a new section to the 1987 Act, being section 19B – Presumptions relating to certain employment in relation to COVID-19. That section establishes presumptive rights to compensation under the 1987 Act in respect of the COVID-19 disease for workers in certain types of employment that involves elevated risk to exposure, i.e. so-called ‘essential’ or ‘frontline’ workers.
Section 19B provides that if a worker engaged in employment of a prescribed kind (discussed below) contracts COVID-19, then for the purposes of making a claim for workers compensation, it is presumed that the disease was contracted in the course of employment and that the employment was both the main and substantial contributing factor to contracting the disease unless the contrary is proven.
It remains possible for an employer to dispute that the infection was caused by the worker’s employment; in order to do so, the employer must prove on the balance of probabilities that the infection was caused by some exposure outside of the worker’s employment.
The amendment has therefore reversed the onus of proof in these circumstances by placing the burden on the employer to disprove the infected worker’s entitlement to compensation.
The provision also prescribes the date of injury (being the date of diagnosis or death, which ever occurs first) and enacts a presumption that infected persons are incapacitated for work for a prescribed period.
Who is covered?
The Second Reading Speech to the amending Act was delivered by the Honourable Damien Tudehope, Minister for Finance and Small Business, who thanked ‘our brave frontline health and police and emergency services workers’ and ‘our workers in grocery stores and supermarkets’. However, the list of ‘prescribed employment’ extends further than those industries; workers in the retail (other than those businesses providing online sales only), health care, education, emergency services, hospitality, construction, entertainment, cleaning and transport industries are subject to the presumption, as are people who work in refuge centres, libraries, courts and correctional centres. Notably, casual employees are covered by the provision only if they have worked at least 1 day out of the 21 days preceding the date of diagnosis.
Implications
It will now be easier for workers in certain types of employment to access workers compensation in the event that they are infected with COVID-19. In most cases, compensation will include weekly payments while the worker is incapacitated for work, as well as payment of reasonably necessary medical expenses.
Should you have any questions about a particular workers compensation matter, please phone our workers compensation team on (02) 4929 9333 or (02) 8297 5900.
