Workers’ Compensation Insurance Bulletin 6: Response to COVID-19

ravel Covid
The ongoing management of COVID-19 within the Workers’ Compensation jurisdictions continues to evolve.

There has been a recent amendment to the NSW Workers’ Compensation Act which will frame the view of COVID related claims, not only in New South Wales, but across Australia.  

New South Wales

The COVID-19 Legislation Amendment (Emergency Measures – Miscellaneous) Act 2020 passed both Houses of Parliament on 13 May 2020 and received assent on 14 May 2020. (Bartier Perry, 2020)  In particular this act included an amendment to the Workers Compensation Act 1987:

A new section (19B) is inserted in the Workers Compensation Act 1987. This section creates a presumption that if a worker in prescribed employment contracts COVID-19 then it is to be presumed that the disease was contracted in the course of employment and that the employment was a substantial and main contributing factor to contracting the disease.

The worker is presumed to be incapable of work as a result of COVID-19 for the period starting on the date of the injury and ending on a date that is 7 days after the date on which the worker is certified as no longer having the disease (unless another date is established by Regulation). The presumption applies to casual workers only if they have performed casual work on 1 or more of the 21 days preceding the date of injury.

The presumption of injury can be disputed, but the onus is then on the employer to establish that the disease was not contracted in the course of employment and that employment was not the substantial or main contributing factor (as the case may be).

Prescribed employment means employment in any of the following:

(a) the retail industry (other than businesses providing only on-line retail),
(b) the health care sector, including ambulance officers and public health employees,
(c) disability and aged care facilities,
(d) educational institutions, including pre-schools, schools and tertiary institutions (other than establishments providing only on-line teaching services),
(e) police and emergency services (including fire brigades and rural fire services),
(f) refuges, halfway houses and homeless shelters,
(g) passenger transport services,
(h) libraries,
(i) courts and tribunals,
(j) correctional centres and detention centres,
(k) restaurants, clubs and hotels,
(l) the construction industry,
(m) places of public entertainment or instruction (including cinemas, museums, galleries, cultural institutions and casinos),
(n) the cleaning industry,
(o) any other type of employment prescribed by the regulations for the purposes of this definition.

This applies even to a worker who has confirmed COVID-19 before the commencement of the amending Act.

Other States and Territories have not yet been this definitive about prescribed employment, but it should be expected that as we continue to ease restrictions across industries, that similar changes may be mandated, either through legislation or as a result of setting precedent through claims determination.

Travel to and from work (Journey Claims)

Concerns have been raised about the opportunity to maintain social distancing when travelling to and from work on public transport and it is possible increases in community transmission may occur if asymptomatic people travel and unintentionally infect other commuters.  The workers’ compensation legislations each respond differently to injury or illness incurred when travelling to or from work.  The following table highlights which States respond to travel claims and which do not:-
 

INCLUDED
EXCLUDED
Queensland
New South wales
Australian Captial Territory
Victoria
South Australia
Tasmania
 
Northern Territory
 
Western Australia

 

Please note that journeys occurring in the normal course of employment remain included (e.g. travelling between different office locations or service areas) and any contraction of COVID whilst on these trips would be classed as compensable in all jurisdictions.  As many people are working from home at present, this would be classed as their normal workplace. This means that if a person travels from home to their workplace or other client location, if they have worked from home prior to travelling and are injured on the way, this may be classed as travel between work locations and the claim may be accepted.  

Mental Health in the Workplace

Since the commencement of the economic hibernation caused by COVID, an additional 92,000 Australians have accessed mental health services.  The level of concern and anxiety is not to be underestimated in our communities and this translates into our workplaces.  The National Cabinet has signed off on a $48.1 million investment in a coordinated national mental health plan and investment in resources.  The mental health plan can be sourced through the following link: https://www.mentalhealthcommission.gov.au.

It is anticipated that some of this concern will become evident as staff are encouraged or required to return to their normal places of work.  The NSW Self Insurance Regulatory Authority has provided an overview of COVID related claims by number and type as it relates to the NSW Scheme (SIRA, 2020).

FUND INSURER

TYPE
CONFIRMED CASES
EXPOSURE CASES
MENTAL DISORDER
OTHER INJURIES
& DISEASES
Claim
1
8
11
0
Notification
6
53
17
0

 

 

 

 

 

SELF & SPECIALISED INSURERS

TYPE
CONFIRMED CASES
EXPOSURE CASES
MENTAL DISORDER
OTHER INJURIES
& DISEASES
Claim
2
4
1
0
Notification
27
10
6
0


Notification levels remain higher than claim numbers however this may change as restrictions ease and people become more mobile.  

In March 2020, during an iCare presentation mental health claims as a result of COVID were discussed.  It was mooted at that time that claims for anxiety as a consequence of being stood down from work would not be considered work related however each case would be considered on its merits. However for all mental health injuries relating to employment, particularly relating to interpersonal conflict between an employee and their employer, a test of “reasonableness” will always be applied.  All Australian legislations contain similar provisions.  It is therefore important that steps are taken to work with employee during the resumption phase of this pandemic, if we are to avoid seeing claims for mental health issues increasing in the coming months.

Insurance Markets
The Australian Insurance markets are hardening as a consequence of the bushfire season and the pandemic so it is more important than ever to undertake a review of your Insurance Portfolio.  It is recommended that this process is commenced earlier than normal as Insurers remain inundated.  Workers’ Compensation premiums can also be adjusted earlier than normal if your business has suffered substantial changes to your workforce.  If you have not already done so, we encourage you to contact your Lockton Broker as soon as possible to commence your review for the 2020/21 financial year.


References
Bartier Perry. (2020, May 15). Retrieved from
https://www.bartier.com.au/insights/articles/presumption-of-injury-for-prescribed-workers-contracting-covid-19/
SIRA. (2020, May). sira.nsw.gov.au. Retrieved from
sira.nsw.gov.au/resources-library/list-of-sira-publications/coronavirus-covid_19/workers-compensation-claims-statistics
 

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