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Is COVID-19 Considered an “Injury” under the  NSW Workers Compensation Laws?

Is COVID-19 Considered an “Injury” under the NSW Workers Compensation Laws?

Published on April 23, 2020 by Katherine Driscoll and Paul OhmKatherine Driscoll and Paul Ohm

It is likely that COVID-19 will be considered either an injury or a disease under the relevant provisions of the NSW Workers Compensation Law.[1]

The State Insurance Regulatory Authority states:

“injury is defined in section 4 of the 1987 Act to include disease injury, which means a disease that is contracted in the course of employment, but only if the employment was the main contributing factor to contracting the disease”.

If a worker is diagnosed with COVID-19, then he or she must satisfy the relevant definition of injury and the required causal link with employment.  In general, for a coronavirus infection to be compensable by workers compensation benefits, a worker must demonstrate:

  • they suffered an injury; and
  • the injury arose out of, or in, the course of employment.

Workers who carry out activities engaging or interacting closely with people who have already contracted the disease will more easily satisfy this.

For example, the injury is attributable where employment is carrying out work that involves providing treatment or care such as medical workers, workers in aged care facilities or in other areas like clinics, hospitals or in supermarkets. This may also extend to emergency service personnel including police and paramedics as well as essential workers including teachers and carers.

As of 22nd April 2020 there have been 180 workers compensation claims lodged to date[2] and some claims have been disputed.

As exposure to COVID-19 can occur in public settings, questions may be asked by a workers compensation insurer as to the exact time and place of contracting the virus.  This will then be the subject of evidence from general practitioners, hospitals, clinics or doctors.

In attempts to minimise exposure to, and the spread of COVID-19, many workers are voluntarily working from home.  Workers would generally be covered for workers compensation when they are working from home.  Whether a worker is entitled to compensation for an injury suffered whilst working from home will depend on whether the injury arose out of or in the course of employment.

Each claim will be reviewed and considered on its own merits.

But, for a worker to be entitled to workers compensation, he or she must show a connection between the work they performed in the course of employment and contraction of COVID-19.

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