Legal

Legal Amber Sprague, Partner Tindall Gask Bentley Lawyers

COVID-19? A work injury claim?

The Return to Work Act 2014 (SA) covers injuries that occur in the workplace in South Australia, and provides entitlements of weekly payments, medical expenses and potentially lump-sum compensation for permanent impairment for an injured worker.

The definition of “injury” in the RTWA includes a disease.

For an injury to be covered, a worker must prove on the balance of probabilities that it arose out of, or in the course of, employment and that the employment was a significant contributing cause of the injury.

In relation to COVID-19, this is a tough test for an employee to meet, particularly if it is unclear how and where he or she contracted the disease. It is merely assumed it was through contact with the public in the course of the employee’s work.

Without medical evidence supporting a work-related cause, it will be extremely difficult to have a claim accepted.

A much clearer situation is a police officer conducting quarantine checks who is exposed to a carrier and contracts the disease.

In that situation, while transmission might have occurred elsewhere, the balance of probabilities being the burden of proof required (meaning more likely than not) would tend to suggest that the officer contracted the disease in the course of his or her employment.

There are some medical conditions and jobs listed in the RTWA in which the burden of proof is reversed – meaning that if a particular type of worker develops a particular condition, it is presumed to have occurred during the course of his or her employment, absent any proof to the contrary.

For example, a worker who develops lead poisoning: as long as he or she worked with lead, or its preparations or compounds, that condition is covered.

Likewise, mesothelioma: a worker who performed any work exposed to inhalation of asbestos fibres is presumed to have contracted that condition from employment.

There have been calls for COVID-19 to be so classified within the RTWA, for at least front-line workers and first responders – police officers, doctors, nurses, cleaners and the like – who are exposed to potential carriers in the course of their employment.

Such a reclassification for only front-line workers and first responders might not be viable, given the many retail workers, public transport operators, teachers and other workers who are also potentially exposed through their employment – and who would presumably feel significantly aggrieved if they were not also covered by a presumed injury scheme.

But where do you draw the line? Surely the state can’t afford to cover the costs for all workers. Or can it? Each case will turn on its own facts and ultimately boil down to whether you can pinpoint how or from whom you contracted the condition …

This leads to the question of what the claims are potentially worth. The RTWA provides for certain payments to be made to the family of an injured worker who dies owing to a work-related injury.

Four South Australians have lost their lives to COVID-19 in SA, and there might be more. Should a worker contract the disease through his or her employment and die, there might be entitlements to a lump sum and/or weekly payments to a dependent spouse and/or dependent children.

One would hope that, based on the number of recorded cases to date, these large sums of money would be few and far between.

Most people with COVID-19 appear to recover reasonably quickly in quarantine at home. Many do not require hospitalization. In these circumstances, a claim might only be worth a few weeks of weekly payments for any incapacity for work as well as reimbursement of any medical expenses incurred.