16 Sep 2020Further legislative changes have been made to workers compensation in NSW, expanding the range of workers who are compensated under the NSW Workers Compensation Act and Regulations if they contract coronavirus.
On 24 July 2020, the Workers Compensation Amendments (Consequential Covid-19 Matter) Regulation 2020 took effect and extended the Covid-19 workers compensation presumptions to additional categories of workers in NSW.
New categories of protected workers in funeral homes and childcare facilities
The new amendment now applies to workers who work in cafes, supermarkets, funeral homes and childcare facilities.
These are new measures to protect additional categories of employees under the new section 19B of the Workers Compensation Act 1987, which came into force on 14 May 2020. (Please see our earlier article Changes to workers compensation in NSW give better protection to workers who get coronavirus.)
Supermarket workers specifically listed as protected workers
The explicit inclusion of workers who work in supermarkets in the July 2020 amendments is perhaps curious, given that the changes which commenced in May already specified that workers were covered if they worked in “the retail industry (other than businesses providing online retail only)”.
Presumably supermarket workers have been listed specifically to pre-empt employers and their insurers from splitting hairs and advancing creative hypotheses that some supermarket workers are not actually working in “the retail industry”.
The intention of the amendments may well be to discourage vested interests from attempting to argue that such workers are not “protected workers” and therefore not relieved of the evidential burden of having to prove causation.
Protected workers in restaurants, cafés, clubs and hotels
Similarly, the inclusion of workers who work in cafés in the July amendments explicitly broadens the category of workers who work in “restaurants, clubs and hotels”.
Presumably the intention is to make it crystal clear that everyone who works in a place where people eat or drink in NSW is a protected worker, regardless of whether the establishment describes itself as a bistro, grill bar, pizzeria, cafeteria, snack bar or some other title.
Presumption that Covid-19 contracted in course of employment
The protections that came into force on 14 May 2020 provided that if a worker contracts Covid-19 during a time when the worker is engaged in prescribed employment, then for workers compensation purposes it is presumed, unless the contrary is established, that the disease was contracted by the worker in the course of employment and the employment was the main contributing factor to contracting the disease. The main contributing factor requirement for the degree of proof was originally enacted under the major changes of the 1987 Act in 2012.
The concept of main contributing factor applies purely to disease injuries where the worker contracts a disease of gradual onset, or suffers the aggravation, acceleration, exacerbation or deterioration of the symptoms of a disease process.
Weekly workers compensation payments and medical expenses
Family members of workers who are employed in the specified classes of employment should also be aware of these changes. If such a worker contracts Covid-19, their family members may need to assist them if they are incapacitated as a result of exposure to coronavirus.
Such a worker will be able to secure payments of weekly workers compensation and for medical expenses in the short term, and in the long term, possibly a lump sum benefit under section 66 of the Act.
In the unfortunate event that a worker passes away as a result of Covid-19 infection, a section 25 death benefit is payable to the family members, along with funeral expenses.
Video link assessments allow workers comp claims to proceed during Covid-19 pandemic
It is still possible to prosecute a workers compensation claim in the new Covid-19 environment. Many medical assessments are now being conducted via video link appointments through platforms like Zoom, Skype, Facetime and Microsoft Teams.
Many claims for psychiatric injury are currently being assessed in this fashion. The main way that Covid-19 has affected existing claims for workers compensation and for personal injury, is the delaying of medical assessments which require a face-to-face assessment.
Many orthopaedic surgeons, neurosurgeons and occupational physicians are now conducting video link assessments, which is allowing claims to proceed. The Workers Compensation Commission is still operating and hearing matters, with most conferences being conducted via telephone, including arbitrations and mediations for work injury damages.
Workers comp for injuries sustained while working from home
Additionally, workers who have suffered an injury at home as a result of having to work at home during the Covid-19 pandemic can still make a claim for compensation, assuming that the injury was sustained in circumstances arising in or out of the course of employment.
Just because you are working at home at the time you suffer injury, does not mean you are disentitled from claiming compensation. If there is a connection between your work and the circumstances of the injury, a claim should be lodged immediately with the workers compensation insurer.
Anyone who has contracted the Covid-19 virus and who works in one of the prescribed areas of employment should seek legal advice to be fully aware of their rights.
For more information, please see our October 2021 article Can you claim workers compensation for Covid if you’re infected at work?
