The outbreak of the Coronavirus disease (COVID-19) was declared a Public Health Emergency of International Concern on 30 January 2020 and was subsequently characterised as a Pandemic in March 2020 by the World Health Organisation. Since that time, the spread of COVID-19 has had catastrophic effects on the health of Australians (and globally) as well as the economy. Workers compensation jurisdictions will not be exempt from the impact of COVID-19, and there will be a number of issues to be considered and which will be faced by workers, insurers and employers.
Workers compensation claims – Risk of COVID-19
Pursuant to the Return to Work Act 2014 2014 (SA) (the Act), workers who contract COVID-19 may be entitled to workers compensation entitlements if they meet the criteria set out in section 7 of the Act, namely if they developed the injury “in the course of their employment” and if employment was “a significant contributing cause” of the injury. The increased risks of those claims will be predominantly experienced by essential workers, particularly those on the frontline such as healthcare workers, education workers and emergency responders.
The same approach to any other workers compensation claim will need to be taken, namely investigating the cause of the worker contracting COVID-19 and whether there is the requisite causal connection with employment. In circumstances where the onset of symptoms can occur some days after contracting COVID-19, there will be additional difficulty for insurers and employers to determine where the worker contracted COVID-19. However, noting that contract tracing is being undertaken by SA Health following a notification of a positive COVID-19 diagnosis, there may be scope for insurers and employers to request details of that investigation, or at least the outcome, to assist in its determination of the claim.
Aside for the health implications to individuals, the liability associated with worker’s contracting COVID-19 will range from a minimal level of liability for those with mild or no symptoms, and with the self-isolation period likely being the only lost time from work, to a substantial level of liability for those with significant symptoms, which could lead to a significant period of time off work and level of treatment required as well as aggravations or exacerbations of underlying health conditions which may result in permanent impairment attracting entitlements to lump sum compensation for non-economic loss and economic loss. In the most severe and unfortunate cases, the COVID-19 could lead to the death of the worker resulting in a dependency claim from the worker’s dependents (such as spouse and children).
Work from Home Arrangements
In addition to the implications associated with workers contracting COVID-19, consideration must also be given to the risks associated with many employer’s directing or allowing their workers to work from home. The work health and safety responsibilities of employers to provide a safe work environment will extend to workers working from home. The extent of the risks will include:
- The risks associated with workers contracting COVID-19 in circumstances where they may be exposed to other family members at home who have contracted COVID-19 from another origin or workers who leave the house during designated breaks and contract COVID-19 during the break; and
- The risks associated with workers sustaining other injuries whilst working from home, especially where there may not be an appropriate ergonomic set up or there is not the ability for the employer to inspect the work from home set up to determine whether it is a safe working environment. Employers should be directing their workers to ensure that the work from home set up is safe, and making their own assessment of the same.
Broader implications of COVID-19
More broadly, there are several other implications that will likely arise as a result of COVID-19 including:
- The impact on the insurer’s / employer’s ability to manage existing claims (as well as investigate and determine new claims) due to a variety of reasons including:
- the employer’s business being shut down or in hibernation, and the worker being unable to comply with a recovery and return to work plan; and
- the inability for workers to attend medical examinations with treating doctors or other independent medico-legal specialists. That may mean that some claims cannot meaningfully progress during the pandemic, however, alternative approaches such as medical examinations and assessments being conducted by telehealth, videoconference or on the papers, should be pursued where appropriate.
- Due to the impact on many employers and its workforce, leading to reduced hours, standing down some staff or shutting down (or putting into hibernation) the entire business, there may be an increasing number of claims for psychiatric injury due to the anxiety and other psychological effects felt by workers due to the pending changes to their employment or the implemented changes to their employment. There may also be an increasing number of psychiatric injury claims from workers who are concerned about contracting COVID-19, particularly those essential workers on the front-line;
- For the same reasons outlined above, there may also be an increase of old claims being ‘re-booted’ by workers who will continue to perpetuate existing injuries to ensure ongoing entitlements (particularly weekly payments) so as to ensure financial certainty and stability during these difficult economic times. There may also be an increase in claims for lump sum compensation for existing injuries; and
- Once the effect of COVID-19 stabilises and the economy rebounds, there will also likely be an increasing number of applications for suitable employment pursuant to section 18 of the Act for those workers with existing injuries and who want to secure a return to work.
This article was written by Shane Thurnwald, Partner and Samara Harley, Special Counsel.