Can a worker claim workers compensation benefits for catching COVID-19?

As Greater Sydney returns to work following 106 days in lockdown, many workers may be concerned about the risks of COVID-19 in their workplace. The issue of catching the virus at work, and the possibility of claiming compensation as a result, has been under discussion for some time and the Personal Injury and Compensation Law team here at Lamrocks has been keeping watch on any developments in this area.

Contracting COVID-19 may constitute a work injury (“disease”) under the Workers Compensation Act 1987. Generally, to receive compensation for a “disease”, a worker would need to establish that the disease was:

1. contracted in the course of employment; and
2. the employment was the main contributing factor to contracting the disease.

However, recent changes to the Workers Compensation Act 1987, make it easier for some workers to claim workers compensation benefits if they contract COVID-19. Those changes presume that a worker’s employment is the main contributing factor to catching the disease/virus, if the worker contracts COVID-19 in certain roles, known as ‘prescribed employment’.

Any other worker would need to prove that their employment was the main contributing factor to catching the disease and this could be difficult.

Workers in ‘prescribed employment’ include those who work in front-line roles such as:

• the retail industry (other than businesses providing only on-line retail)
• the health care sector, including ambulance officers and public health employees
• disability and aged care facilities
• educational institutions, including pre-schools, schools, and tertiary institutions (other than establishments providing only on-line teaching services)
• police and emergency services (including fire brigades and rural fire services)
• refuges, halfway houses, and homeless shelters
• passenger transport services
• libraries
• courts and tribunals
• correctional centres and detention centres
• restaurants, clubs, and hotels
• the construction industry
• places of public entertainment or instruction
• the cleaning industry

Proving COVID-19 was Caught at Work

In the recent Court decision of Sara v G & S Sara Pty Ltd [2021] NSWPIC 286, it was determined that a worker who contracted COVID-19 in their workplace had a compensable injury within the meaning of the 1987 Act. This decision confirms that employers may be held liable for employees who contact COVID-19 during the course of their employment.

Given the prospect of high case numbers, in order to make a claim for compensation a worker must have worked in their prescribed employment 21-days prior to being diagnosed with COVID-19 to have an eligible claim.

It is also important for workers to know that if they tell their employer they have been diagnosed with COVID-19 the employer must notify their insurer within 48-hours of receiving the information, regardless of whether the diagnosis will lead to a workers compensation claim.

If a worker decides to pursue a workers compensation claim, and the insurer disputes the fact that COVID-19 was caused by their employment, then the onus is on the insurer to prove (on the balance of probabilities) that the disease was caused by an exposure outside the worker’s employment.  If it is found that the worker contacted COVID-19 outside the scope of their employment, then the worker will not be eligible for compensation.

By their very nature, viruses are contagious and easily spread so it will be difficult to determine exactly how a worker contracted COVID-19.  Any compensation claim will need to be considered on its merits and in accordance with the legislation

How can we help?

Workers who contract COVID-19 and would like to make a claim for workers compensation benefits can obtain free legal advice which is funded by the government’s Independent Review Office (IRO).  This advice must be received from a solicitor who is accredited by the IRO.

At Lamrocks we have three experienced solicitors in our workers compensation team, all of whom are accredited with IRO.  If you would like more information on how we can help with a claim, either for contracting COVID-19 or any other work related injury, contact Brittany Vella, Arthur Fogarty or Stephen Groves on 02 4371 5688.