Fortress Territory: COVID-19 and workers compensation in the Northern Territory

22 April 2020

Given that the median incubation period for COVID-19 is 5 to 6 days, the difficulty for employers and their insurers will be to determine with accuracy when and where a worker was exposed to  COVID-19.

The Northern Territory Government (NTG) has now enforced strict border controls from 4:00 p.m. on 24 March 2020 requiring anyone arriving from interstate or overseas to self-isolate for 14 days. In addition, the Commonwealth Government has also enacted provisions pursuant to the Biosecurity Act 2015 (Cwlth) to restrict entry and exit into the Northern Territory’s 76 remote indigenous communities.

Non-essential travellers arriving at a Northern Territory border must complete 14 days of forced quarantine. Since Friday 4 April 2020 accommodation expenses are the responsibility of the non-essential traveller.

Exemptions to the border controls and entry and exit restrictions apply to the following persons:

  • National and Northern Territory security and governance;
  • Health and emergency services;
  • Transport, freight and logistics;
  • Defence and policing;
  • Flight crews and freight – with strict guidelines in place to monitor and manage this; and
  • People with specialist skills that are critical to maintaining key government services, industries or businesses.

Obviously health care workers who, as part of their day to day employment, are required to treat persons who have been exposed to and contracted COVID-19 will be at a greater risk to contract the disease themselves and the material contribution test may be easier for them to meet than other workers.

A worker is required to submit a Statement for Fitness for Work – First Certificate in support of a claim for compensation. Obviously the First Certificate will need to provide a diagnosis of COVID-19.

We envisage that the remoteness of the Northern Territory and the pressures currently being placed on medical resources will impact on an employer or its insurer to be in a position to properly investigate the circumstances leading to the contraction of the disease within the deferral period prescribed by the Act. The ability to secure a testing kit, receive the pathology tests and the services of an epidemiologist/virologist to provide a diagnosis may become increasingly difficult as COVID-19 spreads throughout the nation.

Employers and insurers will need to evaluate whether liability for a claim for compensation for the contraction of COVID-19 should be accepted based on the best available medical information within the time limits imposed by section 85 of the Act.

Section 3A of the Return to Work Act 1986 (NT) (the Act) defines injury in relation to a worker, as a physical or mental injury arising out of or in the course of the worker’s employment and includes a disease.

Schedule 2 of the Return to Work Regulations lists the prescribed diseases and kinds of employment that those disease may be contracted.

According to the World Health Organisation, Coronavirus disease (COVID-19) is an infectious disease whose symptoms can range from mild illness, to pneumonia and severe respiratory illness. It is more than likely that COVID-19 will fall to be considered a disease pursuant to the Act.

The next question is whether the disease was contracted by a worker out of or in the course of their employment pursuant to section 4 of the Act.

Section 4(6A) of the Act provides that a disease shall be taken not to have been contracted by a worker in the course of the worker’s employment unless the employment in which the worker is or was employed materially contributed to the worker’s contraction of the disease.

Section 4 (8) of the Act goes further to state that the employment of a worker is not to be taken to have materially contributed to the contraction of a disease unless the employment was the real, proximate or effective cause of the disease.

Having considered the legislative framework, the next step is to evaluate the he seriousness of the claim for compensation. This can vary depending on the symptoms suffered by the infected worker. According to the WHO website the most common symptoms of COVID-19 are fever, tiredness, and dry cough. Some may have aches and pains, nasal congestion, runny nose, sore throat or diarrhoea. The liability for an accepted claim for compensation for the mild symptoms would be limited to a worker’s weekly payments and medical expenses, e.g. attendance at the general practitioner for referral to a COVID-19 clinic.

However, in some cases, a worker may suffer pneumonia and severe respiratory illness which requires an extended hospital stay and an extended recovery time to assist the worker to regain strength and to be cleared for a return for work.

In the most extreme case where a worker dies and it is established that the employment in which the worker is or was employed materially contributed to the worker’s contraction of COVID-19, the worker’s dependants may be in a position to seek section 62 lump-sum compensation in respect of death and prescribed children’s benefits.

The escalation of the COVID-19 crisis has meant that many employers have directed their workers to work from home to reduce daily face-to-face contact. Access to high speed internet allows workers to perform their daily duties from home. However, there remains an obligation that the employer provide safe working environment, as notwithstanding that the worker is not working at their standard workplace, if the worker sustains an injury in the course of their work at home, the injury may be compensable. Prior to approval of a work-from-home arrangement with a worker, employers should consider whether their worker’s work area at home meets work, health and safety standards.

A claim for compensation for an injury suffered by a worker whilst working at their workplace or from home may not only arise from a physical injury. A worker may claim that they have suffered a psychological injury out of or in the course of their employment.

Whether a defence to the psychological injury is available will depend on whether the injury was caused wholly or primarily by:

  • Management action taken on reasonable grounds and in a reasonable manner by or on behalf of the worker’s employer;
  • A decision of the worker’s employer, on reasonable grounds, to take, or not to take, any management action;
  • Any expectation by the worker that any management action would, or would not, be taken or any decision made to take, or not to take, any management action.

Legislative reform on hold?

On 19 February 2020 the NTG introduced the Return to Work Legislation Amendment Bill 2020 which included the following main changes:

  • Revision to the definition of a worker;
  • Provision that post-traumatic stress disorder for first responder police officers, firefighters and ambulance officers be a deemed disease;
  • Expansion of the number of diseases under the fire fighters presumptive legislation;
  • Removal of the cap on normal weekly earnings for payments made after 26 weeks of incapacity; and
  • Provision that the legislation covers injuries incurred on the way to or from work.

The Bill was referred to the Legislation Scrutiny Committee for report by 5 May 2020. Whether the Legislation Scrutiny Committee is able to meet and agree on the proposed amendments and whether the Parliament sits remains to be seen.

This article was written by Reinis Dancis, Partner.

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