Gaius Whiffin on the 2GB Deborah Knight Afternoon Show discussing work injuries and claims

Tuesday, 7 April 2020 

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DK – Deborah Knight / GW – Gaius Whiffin –   C1,2,3, etc – Callers 

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DK      131873 is the number to call, if you’ve got a legal question, now’s the time to ring. Turner Freeman Lawyers join us every Tuesday at this time for our legal matters segment. We’ve got a $100 Westfield voucher to give away as well to the best caller, and we’re focusing today on workers compensation, because a lot of people have been wondering what happens if you contract Coronavirus while you are working, whether its in the office itself or working from home. Any workers compensation questions, now’s the time to give me a bell on 131873.

DK      As we do every Tuesday, we take your calls with legal matters, we’ve also got our $100 Westfield voucher to give away to the caller who asks the best question. Turner Freeman Lawyers join us and we’re talking today about work place compensation, and I know a lot of people have got concerns regarding Coronavirus, if you do contract it while you’re in the work place itself, if the office if you’re still working in the office, or maybe if you’re working from home, what your rights might be. If you’ve got a question, give us a call 131873. Gaius Whiffin is a partner in the Turner Freeman Sydney office and he specialises in personal injury law, he’s with us on the line now, Gaius, g’day.

GW     G’day Deb, how are you?

DK      Yea good. A lot of people are wondering this, in terms of compensation, do you have any scope for getting compensation if you contract Coronavirus while you’re in the office?

GW     Yea, well Coronavirus is a disease which comes within the workers compensation entitlements and certainly if you can show that you’ve contracted Coronavirus in your work place, whether that be in a shop situation, or whether that be an office situation, whether it comes from a client or from a fellow worker, yes you’re certainly going to be entitled to workers compensation payments.

DK      But what about work places where we’re seeing that they’re making big changes. You go to the supermarket and you see that they’re putting up those plastic screens, they’ve got people wearing masks. If the work place itself is making changes to reduce the risk, does that reduce your scope for compensation?

GW     Not for workers compensation payments. Again, the trick is to prove that’s where the virus came from, if you are unfortunate enough to contract it. But in terms of what the work place is doing, certainly they are limiting their liability in potential negligence claims, I mean that would be pretty difficult, but in terms of your actual workers compensation entitlements, which are limited to being paid for time off work and for medical costs, then if you can show that it happened at work, you will be entitled to those compensation payments.

DK      What about if you are working from home?

GW     Yes again, working from home, it’s an increasing area, I mean it’s increasing a lot more recently, but certainly if you contract it at home, and again I think that might be very very difficult to prove, but if you’re working at home and you contract the virus, yes you don’t have to actually be in the work place. The work place can be your home itself.

DK      Hmm.  131783 if you’ve got a question for Gaius Whiffin from Turner Freeman Lawyers. Dan’s on the line in Canberra, what’s your question for Gaius, Dan?

C1       I mean, it’s probably out of your scope a little bit, but is there any type of compensation to get if you’re a small business that’s been unable to trade because of Coronavirus and you’ve been directed by the principle contractor not to work. Is there any type of scope for compensation in any way?

GW     Not for personal injury. I mean, at the end of the day, if what’s happened is you’re in a situation where the job’s closed down, that basically what you’re saying, then I think you’re probably in the same situation as a lot of other people that have lost their jobs because their particular work has closed down.

DK      Yea, that’s a good question though, good on you Dan. Thank you. And Paul, how about you, what’s your question?

C2       Hi. I’m on workers comp which I’ve been on since 2018 and recently I came back to work working 30 hours per week and the insurance company said they’d pay the other 10. Now I’ve been laid off work because there’s no work and the insurance company said to me that they would pay my workers comp while I’m off, but my company said I had to take it out of my RDOs. Is that correct?

GW     Well, so you’re back at work and you’re working, what, 30 hours a week you said?

C2       Yep.

GW     And work stopped because of the virus?

C2       Yep.

GW     There is an argument that you are only going to be entitled to those 10 hours a week in compensation payments. You would still be entitled to that payment, it would be a tricky one and it would be one where if an insurer sort of took that point of view, that you’d need to get some sort of advice in relation to it, but there certainly would be an argument that if they were only paying you 10 hours worth of compensation at the time when the business closed, that’s still all they have to pay you.

DK      Alright, that’s a tricky one, good on you Paul, thank you. Paul, another Paul, has got a question in Lithgow for us, g’day Paul.

C3       Yea g’day Deb. I work for a pathology company, driving around picking up specimens from hospitals and doctors and so on and so forth. If I contracted Coronavirus as part of that work, I’m only a casual, does that apply at all?

GW     Yes. If you contract it, there is an issue as to when you’re travelling around, as long as the travel is for the purpose of work. If the travel is just to or from work, so for example, you’re working in town and you contract the virus from the train journey into town, that might not be covered by workers compensation. But certainly if your job involves driving around, if you’re a courier, or in your circumstances, and you can show that’s where you contracted the virus, yes you would be entitled to compensation.

DK      Twelve to two, we’re talking legal matters as we do every Tuesday with Gaius Whiffin from Turner Freeman Lawyers. 131873 if you’ve got a question, he’s here to help. Peter’s on the line for us in Maroubra, g’day Pete.

C4       G’day, how’re you going?

DK      Yea good, what’s your question?

C4       I work for Qantas and I’ve been stood down since 1st of April and I kept doing the home isolation thing and I flew right up until the end of March. And say for instance I’ve been feeling a bit crook and I got COVID-19 in the last few days, would that be WorkCover?

GW     No, it wouldn’t. I don’t know enough about the virus itself, but so you’ve been off work for about a month now, is that right?

C4       I’ve been stood down since 1st April.

GW     Oh 1st April? Well you’ve got to be able to show that the virus came from your work place. I mean there is some sort of incubation period that I believe, so that if, for example, you know, you don’t have to show the symptoms while you’re at work, if it’s a few days after you’ve finished work, but the reason that you got the virus was because of someone you came into contact with at work, and you just didn’t develop the symptoms for a few days, then yes you’re covered. But again, it has to be the relationship between work that you’ve got to be able to prove.

DK      Alright, we’ve got a full board of calls here, so we’ll try and get through them as quickly as we can, if you can keep your questions brief, that would be great. Damien’s with us too in Sydney, hi Damien.

C5       Hi, how’re you going?

DK      Yea good.

C5       Just, with truck drivers, like for example, travelling Melbourne, Sydney, Brisbane and everywhere in between, I could do that four or five times in say a fortnight period. Now if I get this COVID-19 in a week’s time, how do I track that to check where I may have got it, and who’s responsible as far as the compensation would be concerned? Is it through the work, or through the state, or is there any states blocking another state for certain things?

DK      Yea, good question Damien.

GW     Ok a few questions. Firstly though, there would be an investigation. If you contracted COVID-19 there would be an investigation. The public health authorities would try to find out where you got it from. Now, assuming that you can show again that you got it from some part of your work, well you’re entitled to workers compensation. Under which state depends upon your employment contract and your employment relationship. So if you’re generally employed in NSW, but you just do interstate travel to Queensland and so forth, you’ll probably find that your employment is covered by the NSW Act. Alternatively, there are national companies that are covered by the Commonwealth Act. But any Act really will cover you, there are different rules, regulations and procedures and entitlements, depending on whether it’s, New South Wales, Queensland or the Commonwealth Act, but you should be covered as long as you can show that it was contracted in the course of your employment.

DK      Ok.  TJ, how about you, what’s your question for Gaius?

C6       Yea g’day guys. I’m just wondering, I work in a warehouse environment, and if somebody was to, I guess, test positive with COVID-19 and his workmates around him were asked to self-isolate or go into quarantine, would they be covered for this?

GW     Yea, no this is, well, probably not. Because you actually haven’t… if you don’t contract the disease yourself, probably you wouldn’t be covered by workers compensation. There may be all sorts of other industrial laws that can cover you in those circumstances, but you won’t be covered by workers compensation unless you actually get the disease, get an injury.

DK      Hmm alright, there you go, there’s an answer for you. Julie, how about you, what’s your question?

C7       Oh hi. Look I’m a Locum doctor and I was considering taking up a job in the fever clinic. Now if I contract the Coronavirus from the fever clinic, would I be covered?

GW     Sorry..?

DK      If she contracted it from a fever clinic, one of the fever clinics operating, she’s a Locum contractor doctor.

GW     You need to be an employee to be covered for workers compensation. Now, an employee doesn’t necessarily mean that, you know, that you’re a traditional employee, there are more workers that are covered. So, you probably would be covered if that was your only employment at the time, and certainly if you were an employee you would be covered. It depends upon the actual nature of the employment relationship or the work relationship that you have with the fever clinic. It might be a bit tricky, but again, as I said, not all people that are not officially employees are not covered by workers compensation.

DK      Alright, there you go Julie. Now a non-corona related question from Margaret in Canberra, hi Margaret.

C8       Hi, how’re you going guys? I’m a bit emotional at the moment. I was in a terrific road rage last Wednesday, my face is unrecognisable, split eye, split lips, and my dog was punched in the stomach twice, she’s not really well, and my fiancé was hurt as well. I don’t know, I’ve got to go and have tests because I was told that I can contract this disease in my blood system and that’s another worry to me. I’m 69 years old.

DK      Oh Margaret! You know what, I think you’ve probably got a criminal case, this is something you should go and see the police about. Would that be right Gaius?

GW     Oh definitely. You should contact the police and you definitely have rights against the perpetrator. The problem with the perpetrator in these cases is it may not be worthwhile claiming against them, they may not have compensation to be able to pay to you. There are victim’s compensation services available, it’s not great compensation but it does get you some psychological assistance too in terms of medical costs and medical treatment.

DK      I think the first port of call would be going to the police to try and report that.

GW     Definitely the police, and the police will actually advise you as to your other compensation rights, especially in terms of victims compensation, because you’ve been a victim of a crime, so that are statutes that cover that.

DK      Absolutely. Well we are out of time, but Gaius, thank you as always, lots of interest in this topic in particular, we’ll address it again in the coming weeks. Thank you again.

GW     That’s ok, all the best.

DK      Gaius Whiffin there from Turner Freeman Lawyers and if you want to get in contact with them, turnerfreeman.com.au or you can call 13 43 63 as well and we’ll give our $100 Westfield voucher to Damien, our caller from Sydney. We do that every week, give away our $100 Westfield voucher to our most relevant caller of the day.