As per section 44 of the Workplace Injury Management and Workers Compensation Act 1998, employers have an obligation to notify icare within 48 hours of becoming aware that a worker has received a COVID-19 diagnosis. Employers must notify icare even if they are unsure whether the worker contracted COVID-19 at work or elsewhere, and they must notify whether or not the diagnosis will lead to a workers compensation claim.
Liability for confirmed COVID-19 claims will be assessed like any other workers compensation claim.
To be compensable, our claims managers will need to be satisfied that:
- The worker has the virus
- the virus was contracted in the course of their employment; and
- employment was the main contributing factor to the injury (if treated as a disease). Note for police officers, paramedics and firefighters employment only needs to be a substantial contributing factor to the injury.
While each claim needs to be assessed on its own facts and evidence, our claims managers will ask the following questions when notified of a confirmed COVID-19 injury:
- Has the worker returned a positive COVID-19 test, and if yes, do they have evidence to support the positive test?
- Has the worker contracted the virus in prescribed employment?
- Has the worker travelled overseas for work in the past three months, and if yes, can the worker or employer provide evidence of the flights taken, the flight number(s), route(s) and dates, their itinerary and their activities during their trip?
- Does the worker have evidence to confirm they came into contact with someone who has returned a positive COVID-19 test, and if yes, does the worker or employer have evidence identifying the details of when and where this contact occurred at work or in the course of employment?
- Has anyone else in the workplace tested positive for COVID-19, and if yes, does the worker or employer have evidence showing when they would have come into contact with this person at work?
- Has the worker come into contact with anyone outside of work who has tested positive for COVID-19, and if yes, can the worker provide evidence showing when they would have come into contact with this person outside of work?
A decision on liability will then be made within 7 days of notification of the injury.
What happens if the worker contracted the virus in prescribed employment?
On 14 May 2020, an amendment to the Workers Compensation Act (1987) commenced, making it easier for workers in certain types of employment that involve an increased risk of exposure to COVID-19 to establish:
- The virus was contracted in the course of their employment; and
- employment was the main contributing factor to the injury.
Section 19B of the Act provides that workers with COVID-19 who work in the following types of employment will be presumed to have contracted the virus at work or while working:
- the retail industry (excluding purely online businesses)
- the health care sector, including public health employees
- police and emergency services
- firefighters (including rural fire services)
- ambulance officers
- educational institutions, including pre-schools, schools and tertiary institutions (other than establishments providing only online teaching)
- the cleaning industry
- the construction industry
- restaurants, clubs and hotels
- disability and aged care facilities
- refuges, halfway houses and shelters
- passenger transport services
- courts and tribunals
- correctional and detention centres
- places of public entertainment or instruction (including cinemas, museums, galleries, cultural institutions and casinos).
The new Section in the Act also allows for other types of employment to be prescribed by Regulations, and these Regulations will be developed by the NSW Regulator, the State Insurance Regulatory Authority (SIRA).
While we await the release of these Regulations that will support the application of the presumptive liability provisions, unless evidence is received to ‘establish the contrary’, claims managers will provisionally accept (or accept) claims from workers in prescribed employment who have evidence to support a positive diagnosis.
What evidence or information is needed to assess COVID-19 claims?
It may be difficult to confirm a COVID-19 diagnosis and to ascertain how contracting COVID-19 is linked to a worker’s employment and subsequent workers compensation claim within the first 7 days of injury notification.
Providing your claims manager with as much information as possible at the time of injury notification or within the first 7 days of notifying a claims manager of an injury will assist them in assessing liability for the claim within the required timeframes.
Your claims manager will need evidence to confirm both the diagnosis of COVID-19 and the relationship of the diagnosis to the worker’s employment (if not prescribed employment), such as, but not limited to:
- A Certificate of Capacity confirming a diagnosis of COVID-19.
- If a Certificate of Capacity cannot be obtained due to quarantine restrictions, other information such as a letter from the Department of Health or a hospital that confirms a diagnosis of COVID-19 will be considered.
- The worker’s contract of employment or statement of their employment duties.
- If related to overseas travel, a copy of the itinerary identifying the dates and locations for flights and other transport, accommodation, offices or other venues and the activities undertaken during the trip.
- If a copy of the itinerary cannot be obtained, a signed statement or statutory declaration from the employer identifying the dates and locations for flights and other transport, accommodation, offices or other venues and the activities undertaken during the trip.
- Written communication from the Department of Health, the employer or other confirming that the worker had come into contact with a person who had tested positive for COVID-19 at work or in the course of employment (in the case of overseas travel, this would be when and how during the trip the contact occurred).
- Written communication, a signed statement or statutory declaration from the worker or employer that indicates their employment is the only likely time they had come into contact with a person who had tested positive for COVID-19, rather than contact with a person who had tested positive for COVID-19 in the community generally.
What will happen if there is not enough evidence or information within 7 days?
If there is insufficient or no evidence to support that the worker has a COVID-19 diagnosis within 7 days of injury notification, or to identify the carrier of the virus and when and how the worker was exposed to the carrier at the workplace or while working (if not prescribed employment), the claim will be declined in accordance with the legislation.
This is because the claims manager cannot be satisfied that there is an injury, that the virus was contracted in the course of their employment, or that the employment was the main contributing factor to the injury (for police officers, paramedics and firefighters employment only needs to be a substantial contributing factor to the injury).
If information to support injury and the link required to their employment is received at a later time, a decision on liability will be revisited in accordance with the legislation.
What happens if some evidence or information is received within 7 days?
In the instance we have some, but not all evidence to support that the worker has a COVID-19 diagnosis, provisional payments will commence while further investigations occur.
Evidence to support the diagnosis that we may normally receive includes:
- A letter from the Department of Health confirming the worker has tested positive (because a Certificate of Capacity is not yet available); or
- That employment was the only likely exposure to COVID-19 (for example the worker’s itinerary confirms they immediately self-isolated on their return from overseas); or
- The employer has confirmed that the worker became symptomatic within 48 hours of their return from overseas and had been exposed to a person with COVID-19 while working overseas.
Based on the expected recovery timeframes and treatment needs for COVID-19 so far, provisional help should be enough to see the worker fully recover.
Will COVID-19-related claims be assessed in a similar way?
Yes. A similar methodology will be adopted by claims managers when assessing potential exposure to COVID-19 claims (where the worker is not tested or does not test positive for COVID-19).
For work from home and mental health claims arising from business disruption related to COVID-19, the same process that would be applied when assessing any other working from home or psychological injury claim will be followed.
What evidence or information is needed to assess COVID-19 claims when working from home?
If an injury is sustained while working from home, a connection between the duties a worker is required or expected to perform and the injury must be established.
Because workers may undertake a variety of different activities in the home, it can be difficult to decide whether an injury happened in the course of employment while working from home.
In practice, this means that the person making an injury notification needs to provide factual evidence to show how the injury occurred, what the worker was employed to do at the time and the arrangements that were in place when they were working from home.
The following questions will be considered when assessing liability:
- What work is the worker employed to do?
- Was the worker performing actual work or something incidental to their work when they were injured?
- Was the worker injured during normal work hours or at a time when they were expected to be available to work?
- Has the worker ever worked outside of normal work hours and was this encouraged by their employer?
- Was there a designated work area in the worker’s home?
- Was the worker encouraged to create a safe work environment while working from home?
- Was the worker encouraged to take care of their personal safety while at home, in the same way as a formal workplace?
- Was the worker injured during a recess break?
- Was a third party with no connection to the work responsible for the injury?
What evidence or information is needed to assess mental health COVID-19 claims?
Worrying about contracting the virus, possible threats to our families, employment and changes to our workplace arrangements is an expected and normal reaction to the COVID-19 pandemic.
For a mental health claim to be accepted as a workers compensation claim, claims managers will need to be satisfied that the worry or other reactions in the form of anxiety and stress are excessive and amount to a psychological or psychiatric disorder within the meaning of the workers compensation legislation (a psychological injury). There must also be information to support that the psychological injury is related to work.
The evidence needed to support a mental health claim related to COVID-19 does not differ to that of a mental health claim with no connection to COVID-19. When notifying a psychological injury the following questions will typically be asked:
- What was said or done to the worker to cause the alleged psychological injury?
- Who was responsible for the conduct and when?
- Was anyone else involved in the event?
- Did anyone see it happen?
At the time of injury notification, employers should be prepared to provide the names and contact details of any witnesses, as well as documentation including (but not limited to): the worker’s personnel file, employment application, job description, training and induction records, relevant policies and procedures made available to the worker, leave records, and medical certificates and reports provided by the worker.
Section 11A(1) of the Workers Compensation Act 1987 states that compensation is not payable if the psychological injury was wholly or predominantly caused by ‘reasonable action’ taken or proposed to be taken by the employer with respect to: transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers, or provision of employment benefits to workers.
Note that general assertions that an employer acted reasonably in its conduct will not be sufficient to establish a defence under section 11A(1). If the action by the employer is not captured by these categories, for example interpersonal conflict with co-workers or managers, then a section 11A(1) defence will not be available.