What are the workers compensation implications in respect of Coronavirus disease (COVID-19)? We identify the following relevant considerations: Liability under the Workers Compensation Act 1987 (NSW) (the ‘1987 Act’), including compensation payable for death Liability at common law (work injury damages). Workers compensation Can COVID-19 be an Injury? Coronaviruses are 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). COVID-19 is a new strain of that class of viruses which was identified in 2019 when a higher than normal number of people in Wuhan, China, presented with symptoms of pneumonia after having an illness similar to the flu. Testing revealed this new strain of Coronavirus. To be eligible for benefits under the workers compensation legislation it is necessary for a worker to demonstrate that he or she suffered an injury in accordance with s4 of the 1987 Act. Whether such an injury is a personal injury or a disease is largely irrelevant but the terms are not mutually exclusive in any event. The contraction of an infectious disease due to a virus entering a worker’s body in the course of his or her employment has been held to constitute an injury within the meaning of the 1987 Act (Favelle Mort Ltd v Murray (1976) 133 CLR 580). The important conclusion is that it is undoubtedly the case that COVID-19, if contracted in the course of a worker’s employment, can constitute an injury within the meaning of s4 of the 1987 Act. Substantial / main contributing factor Compensation for an injury can only be received if the employment concerned was a substantial contributing factor to the injury in accordance with s9A of the 1987 Act. Historically, contraction of a viral illness has been a ‘personal injury’ but if COVID-19 is found to be a ‘disease’ within the meaning of s4(b), the employment concerned must be the main contributing factor to the contraction of the disease pursuant to s4(b) of the 1987 Act. In the recent Workers Compensation Commission (WCC) presidential decision of AV v AW [2020] NSWWCCPD 9 Deputy President Snell stated that the ‘test of “main contributing factor” involves consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor’. DP Snell then noted this was a test of causation, which required ‘consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related’. For the purpose of s9A, the question is whether the connection between the injury and the employment concerned was ‘real and of substance’ (Badawi v Nexon Asia Pacific Pty Ltd [2009] NSWCA 324) bearing in mind that it is not necessary for a worker to prove the employment was the sole contributing factor (Hallet v Cmr of Police (2004) 1 DDCR 580). Section 9A(2) provides a range of matters which may be (but not exclusively) considered by the WCC to determine the question, such as ‘the time and place of the injury’, ‘the nature of the work performed and the particular tasks of that work’ and ‘the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment’. If a worker comes into contact with COVID-19 (through an infected person or any other means) in the performance of his or her duties and contracts the disease as a result, the worker’s employment will most certainly be found to be a main and/or substantial contributing factor to the injury. Proving the disease was contracted at work Probably the most important consideration when determining liability for a condition such as COVID-19 (which can be transmitted in many ways through the population generally) is whether the alleged injury was contracted arising out of or in the course of the worker’s employment. The issue of causation is determined based on the facts in each case and in a manner which has been described as ‘a common sense evaluation of the causal chain’ (Kooragang Cement Limited v Bates (1994) 35 NSWLR 452). For a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, ‘it must feel an actual persuasion of the existence of that fact’ (Nguyen v Cosmopolitan Homes [2008] NSWCA 246). Where the medical and factual evidence confirms that a worker was involved in duties requiring clear exposure to an infected person and subsequently contracts COVID-19, the ‘common sense’ conclusion would be that the worker probably contracted the disease in the course of his/her employment. Without such a clear causal chain, it will be more difficult to establish that the disease was contracted at work. However, the WCC or a Court may determine that the worker’s public duties lead to a greater risk of exposure than normal, and so to a finding that the burden of proving the injury is discharged. Common law The common law duty of care owed by an employer to a worker requires that the employer takes reasonable care to ameliorate the foreseeable risk of injury by providing a reasonably safe place and system of work. Employers ought to keep themselves informed as to the appropriate response to the disease and monitor whether the systems of work remain safe as the impact of COVID-19 alters. This may require an employer to take expert advice as to the appropriate response in the specific circumstances of their worksite to discharge the duty of care owed to employees. Depending upon the circumstances and expert advice, workers should be provided with adequate warning, instructions and training in the manner in which to minimise the risk of harm and, in need and where possible, relevant safety attire and equipment. Conclusion COVID-19 represents a potentially significant and difficult operational challenge for employers. It is imperative that workers receive training and advice on minimising the risk of contracting the disease in order to reduce the risk of harm. Employers should stay abreast of any directives issued by the state and federal governments, including recommendations regarding local and international travel and implement policies and procedures in line with these directives. If those directives do not address the specific circumstances of an employer’s workplace, it may be necessary for that employer to obtain and implement expert advice as to how to provide a safe system of work. We would be pleased to provide further specific advice as required. The above content is commentary rather than legal advice and was prepared on the basis of applicable legislation, government programs and initiatives that were in place as of the date of publication. Given the ongoing evolution of both the COVID-19 pandemic and frequent consequential changes to the various laws and programs within all Australian states and territories, readers should seek legal advice on the current situation as applicable to their specific circumstances before taking any action in relation to the above.
