*The contents in this blog relates to legislation in New South Wales.
Workers compensation in New South Wales is a ‘no-fault’ scheme. If you suffer an injury during the course of any employment, you are entitled to compensation.
To be eligible to make a claim for workers compensation in New South Wales, your injury must arise out of the course of employment[1] and your employment needs to be a substantial contributing factor to your injury.[2]
In some circumstances, COVID-19 virus may be a compensable workplace injury. This is because a disease is included in the definition of injury under section 4 of the Workers Compensation Act 1987 (the Act). To be compensable, you must satisfy the following criteria:
- You must have contracted the COVID-19 virus in the course of your employment; and
- Your employment was a substantial contributing factor to contracting the COVID-19 virus.
If the workers compensation insurer accepts liability for confirmed COVID-19 virus claims, you will have an entitlement to claim lost wages and reasonable and necessary medical/treatment expenses arising from the injury (disease).
Case example: Sara v G&S Sara Pty Ltd [2021]
A recent decision of Sara v G & S Sara Pty Ltd[3] confirms that employers can be held liable if their employee contracts COVID-19 virus during the course of their employment.
Background
In July 2020, Mr Georges Sara, a Director of an Australian based company dealing in dental technology had travelled from Sydney to New York for business when he had contracted COVID-19 virus. On 23 July 2020, Mr Sara was admitted to a hospital in New York and ultimately passed away from the virus in the United States on 21 November 2020.
The applicant, Mrs Sayd Sara (the deceased’s widow and executor), filed 2 applications claiming (1) weekly compensation and medical expenses, and (2) funeral costs and lump sum benefits under the Act.
The Personal Injury Commission was required to determine whether the deceased contracted COVID-19 virus in the course of his employment with the respondent. The NSW workers compensation insurer, iCare, claimed that the deceased had not suffered an injury pursuant to section 4 of the Act. iCare also claimed that at the time the deceased became ill, he was not working for the Australian company but was instead working for the company in the United States. In addition, iCare argued that it could not be demonstrated that the deceased had contracted COVID-19 virus during the course of his employment with the respondent.
Findings
The Personal Injury Commission member John Harris held that the deceased was entitled to compensation for his death as:
- the COVID-19 virus caused the deceased to suffer strokes, heart attacks and destruction of the lungs, which constituted an injury within the meanings of section 4 of the Act;
- the respondent conducted themselves in a manner that the deceased was employed by the respondent which was demonstrated by the ongoing wage paid by the respondent to the deceased; and
- the injury was sustained in the course of the deceased’s employment with the respondent as the deceased was infected with the COVID-19 virus whilst he was travelling from Sydney to New York.
Member Harris also held that liability was established under section 19B of the Act. Thus, the applicant was awarded lump sum benefits, funeral expenses, medical expenses and weekly compensation.
Conclusion
If you believe you may have contracted COVID-19 virus during the course of your employment, you should contact our expert personal injury lawyers at Turner Freeman for legal advice regarding your workers compensation rights and entitlements.
[1] Workers Compensation Act 1987 (NSW) s 4 (definition of ‘injury’).
[2] Ibid s 9A.
[3] [2021] NSWPIC 286.
