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A significant win for workers compensation claims relating to COVID-19 - (Sara v GMS Sara Pty Ltd (2021) NSW PIC)

A significant win for workers compensation claims relating to COVID-19 – (Sara v GMS Sara Pty Ltd (2021) NSW PIC)

Published on September 16, 2021 by Scott Dougall and Harman KaurScott Dougall and Harman Kaur

The estate of a man who died from COVID-19 whilst travelling on business to New York in 2020 has won a milestone decision in their favour within the New South Wales Workers Compensation Scheme for significant death benefits compensation and medical treatment expenses.

This is the first known matter to be determined by the Personal Injury Commission relating to COVID-19.

The Applicant, being the widow of the deceased worker and the administrator of his estate, was awarded lump sum death benefits in the amount of $834,200. An additional compensation was granted for a further $11 million (USD) for the cost of medical and hospital related treatment which the deceased worker received in New York.

Contraction of COVID-19 arising in the course of employment

A key issue in this matter to be determined by the Commission was to establish whether contracting the virus was an injury which arose out of or in the course of the deceased worker’s employment.

The deceased worker was a dental entrepreneur and he had a group of companies which included the Australian branch of the company G & S Sara Pty Ltd of which both he and his wife were sole directors. The Australian company paid him a wage.

The deceased also had a company in the United States of which the deceased was the managing director and president.

In the proceedings the insurer argued that at the time of contracting the virus, the deceased was not actually employed by the Australian company that it insured. Rather the insurer claimed that the deceased travelled to the United States to perform work for the US based company.

Upon review of the deceased financial records, the Commission was highly persuaded by the fact that the deceased was paid a wage from the Australian company that employed him.

The Commission concluded that there was a clear intention by the Australian company that it continually employed the deceased and this did not change even though he travelled to the United States to perform work with the Australian branch.

The Commission ultimately concluded, after reviewing all the financial records and reviewing the deceased’s decision to apply for an exemption to travel, that there were no changes in his working arrangement and he was not “transferred” to the employment of the US company.

Once the hurdle of whether the deceased was performing work in the course of his employment was satisfied in accordance with section 4 of the 1987 Act, the decision of whether the injury arose in the course of his employment was easily satisfied by the Personal Injury Commission.

The Respondent conceded that if the deceased was in the United States for the course of his employment duties with G & S Sara Pty Ltd, then his contraction of COVID-19 was in the course of his employment.

Ultimately, the Commission was satisfied that the deceased sustained injury in the course of his employment with the insured Australian Company.

Overall, this recent decision by the Personal Injury Commission comes as a reminder that if established that a worker has contracted COVID-19 in the course of their employment, the insurer will be liable for some significant compensation payable to the worker which includes but is not limited to medical treatment expenses, weekly payments and in circumstances where the injury is serious enough, death benefits as well.

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