When is coronavirus (Covid-19) compensable under Workers Compensation Legislation?
In light of increasing concerns regarding a potential outbreak, it is important that employees, employers and insurers are aware of the circumstances in which a COVID-19 infection might constitute a compensable injury.
Coronaviruses are a family of viruses which are known to cause respiratory infections ranging from the common cold to more severe diseases such as Severe Acute Respiratory Syndrome (SARS) and COVID-19. COVID-19 is a newly discovered virus which is spread from person to person through droplets from the nose or mouth¹. In light of increasing concerns regarding a potential outbreak, it is important that employees, employers and insurers are aware of the circumstances in which a COVID-19 infection might constitute a compensable injury.
In order to gain an entitlement to compensation under the Workers Compensation Act 1987 (‘the 1987 Act’), the Worker must establish that they suffered an injury arising out of or in the course of their employment (Section 4 of the 1987 Act) and that employment was a substantial contributing factor to the injury (Section 9A of the 1987 Act). 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)(ii) of the 1987 Act).
Proving the Causal Link
In order to obtain compensation, the worker must prove that the most likely cause of their COVID-19 infection was exposure to the virus arising out of or in the course of their employment, and that employment was a substantial contributing factor to the transmission of the infection.
Note: it may be contentious whether a COVID-19 infection constitutes ‘personal injury’ (Section 4(a)) or a ‘disease injury’ (Section 4(b)). The latter casts a higher evidentiary burden upon the worker, who must prove that employment was the main contributing factor to the disease. In practice, if it is proven that the virus was transmitted ‘in the course of employment’ in most cases it will not be contentious that employment was both a substantial and the main contributing factor to the injury/disease. However, workers seeking compensation in respect of the aggravation of a pre-existing disease will certainly need to prove that employment was the main contributing factor to the aggravation. This may be a common scenario, given COVID-19 has proven to disproportionately impact people with underlying conditions.
So, how difficult will it be to prove that a COVID-19 infection is a compensable work injury? At present, in Australia the virus is relatively contained and authorities have been able to track the transmissions of COVID-19 back to their source. In these circumstances, workers are unlikely to have difficulty in establishing causation. However, causation will be more difficult to prove if, as has been predicted, there is an outbreak of the virus and it becomes difficult or impossible to definitively trace transmission of the virus to its source.
This begs the question: how will decision-makers determine whether a particular case of COVID-19 arose out of or in the course of employment, as opposed to contact with the general population?
Infrequent claims in respect of viral illnesses have been litigated, and the following guidelines can be gleaned from the case law:
- The worker must prove on the balance of probabilities that the infection arose out of or in the course of employment; however, the worker is not required to prove with scientific certainty that the infection was caused by the employment (Hunter New England Local Health Network v Turnbull  NSWWCCPD 58 at ). In Zalfelds v NSW Department of Education and Communities  NSWWCC 255 at , Arbitrator Brown cited various authorities in support of the proposition that the inability of medical science to identify the pathological mechanism by which a disease develops is not necessarily determinative of the existence or non-existence of a causal relationship for the purposes of attributing legal responsibility (Murray v Shillingsworth  NSWCA 367; Seltsam Pty Ltd v McGiunness  NSWCA 29).
- On the issue of causation, decision-makers must take a ‘common sense approach’, consistent with the principles from Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Zalfelds at  and Turnbull at , ).
In both Turnbull and Zalfelds, decision-makers undertook close analysis of the medical evidence, noting in particular the timing of the emergence of symptoms, and the presence or absence of diagnosed cases in the workplaces. In Turnbull, a nurse who treated patients with respiratory diseases contracted a pseudomonas infection. The Arbitrator’s determination that employment was the most likely cause of the infection was upheld on appeal. Conversely, Zalfelds, a teacher was unsuccessful in proving that she contracted Whooping Cough in the course of her employment in the absence of any evidence that persons in the workplace had transmitted the illness. The Arbitrator also noted evidence that the worker’s sister was ill, and that the worker had failed to provide an explanation for that illness. From this, an inference could be drawn that the illness was contracted outside of the course of employment.
In Bee v NSW Department of Corrective Services  NSWWCC 191, a foster carer alleged that she had contracted Swine Flu from the children in her care. The Arbitrator determined in her favour, and noted that that all that the worker had to prove was that the children were infected and that such infection was passed on to her. Importantly, the Arbitrator considered that the absence of any evidence of any other potential source of infection was telling.
Consideration of the approaches taken in the above decisions suggests that a determination will come down to the strength of competing evidence with respect to the timing of symptoms, the incubation period of the infection and the worker’s exposure to known cases of infection both inside the workplace and out, in order to draw a common sense conclusion about whether exposure in the work place was the most likely cause of illness.
Implications: What if infection is compensable?
Where the injury is compensable, workers may be entitled to weekly benefits compensation, medical expenses, rehabilitation and return to work programs. In circumstances where the infection leads to permanent impairment, for example, if the COVID-19 infection causes deterioration of a pre-existing condition, the worker might also be entitled to lump sum compensation.
¹ World Health Organisation, Q&A on Coronaviruses (COVID-19), accessed 06/03/2020 at https://www.who.int/news-room/q-a-detail/q-a-coronaviruses