Proposed changes to the NSW Workers Compensation Act could make it harder for people to make claims for contracting COVID-19 at their workplace.
The NSW Government has announced it will repeal Section 19B of the Workers Compensation Act 1987. Changes to the Act were made in May 2020 that provided automatic workers compensation rights for workers who contract COVID-19 and who work in industries such as healthcare, education, retail, transport, emergency services, construction, disability and aged care, dining, and entertainment.
A Bill before Parliament proposes to repeal the automatic presumption that workers who contracted COVID-19 had done so at work.
Compensation typically covers medical expenses and working hours lost because of the virus. The proposed changes would put the onus back on employees to prove they caught the virus while at work. Due to the nature of viruses, identifying how and when a worker caught the virus can be difficult.
The NSW Government says the changes are to reduce the burden of higher insurance premiums for businesses as a result of an influx of claims. Citing Doherty Institute modelling, the state government estimates that COVID-19 claims could cost the NSW workers compensation system up to $638 million over the coming year.
Between February 2020 and 15 November this year, NSW workers compensation insurer icare reported 1725 notifications of a workers compensation injury or illness because of COVID-19.
Under the Act, employers must notify icare within 48 hours of learning one of their workers has tested positive for COVID-19, whether the virus was contracted at work. Employers must also notify icare if the diagnosis will lead to a workers compensation claim.
Under current rules, to be eligible for compensation, workers need to prove:
- They have a COVID-19 diagnosis
- The virus was contracted in the course of their employment
- Their employment was the main contributing factor to the injury (if treated as a disease).
As part of any claim, workers need a Certificate of Capacity from their doctor to confirm their diagnosis, and supporting information from the worker, employer, and nominated treating doctor to show when COVID-19 was contracted and how employment was the main contributing factor to contracting the virus.
Employees working from home need to provide strong evidence of a link between their work and any injury or illness, including COVID-19, to be eligible to make a claim and receive compensation.
The changes could have major implications for people suffering “long COVID”. If they can’t prove they caught the virus at work and are ineligible to make a compensation claim, they would likely have to take sick leave or unpaid leave while they recover.
While the process to receive compensation might be more difficult, Foye Legal reminds workers that changes to the Act do not remove the right to make a claim. Anyone who believes they or someone they know has caught COVID-19 through their workplace should contact our Personal Injury and Compensation Division for advice immediately.
Update: The Bill was passed by the NSW Legislative Assembly on Wednesday 24 November. The Legislative Council then referred the Bill to a parliamentary committee for review inquiry, which is due to report by 21 February 2022.