Can catching COVID-19 be a Work Injury?
The current novel Coronavirus that has reached Pandemic levels in our society is one of a large class of viruses that cause illnesses ranging from the common cold to more severe diseases such as Severe Acute Respiratory Syndrome (SARS) and Middle East Respiratory Syndrome (MERS).
In order to receive workers compensation benefits, a worker in New South Wales must establish that he or she has suffered an injury within the definition set out in the Workers Compensation Legislation. This definition is very legalistic and has resulted in many decisions in the Workers Compensation Commission. There is no doubt however, that the definition does include a disease which is contracted in the course of employment,
On that basis we believe that it is almost unarguable, that a worker who contracts COVID-19, in the course of employment, will be entitled to benefits under the New South Wales Workers Compensation Scheme.
The worker would have to prove that his or her injury was received in the course of employment and that the worker’s employment was a substantial contributing factor to the injury occurring.
In a recent decision in the Workers’ Compensation Commission Deputy President Snell in a matter of AV v AW  NSW WCC PD held that the “test of main contributing factor” involves consideration of whether there was competing causal factors “both work and non-work related” of the aggravation, and whether on a consideration of relevant causal factors, the employment represents the main contributing factor.”
The decision about whether an injury is sustained in the course of employment, or not, is usually a question of fact. Importantly, it is not necessary for an injured worker to prove that his or her employment was the sole contributing factor in contracting the disease. The employment has to be a real and substantial factor in contracting the disease.
So, if a worker comes into contact with COVID-19 in the course of his or her employment and contracts the disease as a result of that contact, the worker’s employment will most certainly be found to be a main and/or substantial contributing factor to the worker’s injury.
Where there is medical and factual evidence confirming that a worker was involved in duties requiring the worker to be exposed to an infected person and the worker subsequently contracts COVID-19 the “common-sense” conclusion would be that the worker probably contracted the disease in the course of his or her employment.
Those workers would be entitled to the benefits provided by the NSW Workers Compensation Scheme.
Any health care provider who works in a hospital, or medical centre, or a worker in a pharmacy for example could be placed at greater risk of contracting COVID-19. If such a person did contract the virus then the circumstances would probably fall within the definition of any injury under the NSW Workers Compensation Scheme and the worker would probably be entitled to benefits under that Scheme.
Employers have an obligation to minimise the risk of harm to their employees and one could easily imagine that if employers did not take adequate precautions, and their employees suffered injury and incapacity as a result of contracting COVID-19, those employers may expose themselves to a Damages Claims, at Common Law, based on the failure to take adequate care.
Lamrocks have solicitors who are Accredited Specialists in Personal Injury Law including Workers’ Compensation Law. If you need advice or assistance in relation to a compensation claim, arising out of the COVID-19 Pandemic or otherwise, do not hesitate to contact our specialist solicitors.
For any workers injured in New South Wales who need legal advice a Grant of Legal Aid can be obtained from the Workers’ Compensation Independent Review Office (WIRO) and that Grant of Legal Aid covers all legal costs and necessary disbursements in investigating or pursuing a claim for Workers’ Compensation benefits.
There is no charge for an initial consultation with one of our specialist solicitors and those consultations can be conducted by phone or videolink.