Over the next few weeks, we are featuring updates of relevance regarding workers’ compensation and coronavirus for employers and insurers in Queensland.
Our first update considers whether a worker in Queensland is or may be entitled to statutory workers’ compensation payments for a coronavirus infection (we will consider issues relevant to entitlement for a psychiatric injury in a later update).
In Queensland, workers' compensation is payable to a worker who sustains an 'injury'. Section 32 of the Workers' Compensation and Rehabilitation Act 2003 (WCRA) relevantly provides:
(1) An injury is personal injury arising out of, or in the course of, employment if
the employment is a significant contributing factor to the injury.
...
(3) Injury includes the following:
(a) a disease contracted in the course of employment, whether at or away
from the place of employment, if the employment is a significant contributing
factor to the disease …
There are three elements to be satisfied by a worker who seeks compensation:
- The worker sustained a personal injury or disease.
- The COVID-19 infection either (1) arose out of, or in the course of, employment or (2) was contracted in the course of employment, whether at or away from the place of employment.
- That employment was a significant contributing factor to the personal injury or disease.
Each element is considered in turn below.
Personal injury or disease
Medical research is ongoing, but the Australian Government Department of Health Coronavirus Disease (COVID-19) Frequently Asked Questions fact sheet (as updated 3 April 2020) notes as follows:
What is a coronavirus and COVID-19?
'Coronaviruses are a large family of viruses known to cause respiratory infections. These can range from the common cold to more serious diseases such as Severe Acute Respiratory Syndrome (SARS) and Middle East Respiratory Syndrome (MERS) This new coronavirus originated in Hubei Province, China and the disease caused by the virus is named COVID-19.'
A coronavirus infection is most likely to be considered a 'personal injury' or 'disease'. In Favelle Mort Ltd v Murray [1972] the High Court of Australia found that the contraction of a viral infection entering the worker's body due to an external cause was a 'personal injury' within comparative provisions of the Workers' Compensation Act 1926 (NSW).
Of course, confirmation of diagnosis would be required from a doctor.
Relationship to employment
An injury arises 'in the course of employment' if it is sustained while the worker is engaged in the work that he or she is employed to do, or in something which is incidental to that work (see, for example, Harvey v Simon Blackwood (Workers' Compensation Regulator) & Anor [2015] QIRC 211).
The requirement that employment significantly contributes to the injury means that the exigencies of the employment, in other words what the worker in fact does in the course of employment (the requirements of the role), must contribute in some significant way to the infection (Newberry v Suncorp Metway Insurance Limited [2006] QCA 48).
The Australian Government Department of Health Coronavirus fact sheet referred to above notes:
How is this coronavirus spread?
Coronavirus is most likely to spread from person-to-person through:
- close contact with a person while they are infectious or in the 24 hours before their symptoms appeared.
- close contact with a person with a confirmed infection who coughs or sneezes.
- touching objects or surfaces (such as door handles or tables) contaminated from a cough or sneeze from a person with a confirmed infection, and then touching your mouth or face.
In this regard:
- Satisfaction of the tests in cases of contraction of coronavirus will need to be considered on a case-by-case basis, with the benefit of medical evidence as to when and how the virus was contracted.
- In a lot of instances, we expect it will be difficult for a worker to meet the statutory tests because it will often be unclear when and how the infection was contracted.
- Any medical conclusion will be dependent upon establishing the facts on which it is based.
- The best chance of a worker satisfying the tests would be by demonstrating personal or surface contact with a known infectious co-worker in the workplace, with symptoms following within accepted time frames, and an absence of potentially causative domestic exposure. We expect this to be fairly onerous, but would be an easier task whilst infection rates are confined and could more readily be pinpointed to a work setting.
What if a worker dies due to a COVID-19 infection?
Subject to satisfying the statutory tests above, and subject to establishing that the worker dies because of the COVID-19 infection, an entitlement to payment of compensation to dependents may arise pursuant to Chapter 3, Part 11 of the WCRA.
Claims to date
The extent to which applications for compensation have been lodged in Queensland referable to COVID-19 at this stage is not known.
In New South Wales, the State Insurance Regulatory Authority (SIRA) is reporting COVID-19 workers' compensation claims using data provided daily by insurers. As at 29 April 2020, there had been 205 claims/notifications referable to both exposure and mental disorders linked to COVID-19. To what extent claims made have been accepted or rejected is not specified in the published data.
Resources
We note that there are currently multiple published resources for employers and insurers on the topic of COVID-19, including the following:
- WorkCover Queensland has published a series of Frequently Asked Questions referable to coronavirus here
- Safe Work Australia has published guidance for managing COVID-19 risks in the workplace here
- The SIRA Coronavirus (COVID-19) update can be found here
- Australian Government Department of Health Coronavirus (COVID-19) resources can be found here