COVID-19 AND WORKERS COMPENSATION

A 20th May 2020 post from Denise Zumpe (don’t know her) spoke about the chance that employees contracting COVID-19 could be eligible for workers compensation. In short, contracting COVID-19 could be considered a workplace injury. 

WorkSafe Victoria Chief Executive, Colin Radford confirmed in (May 20th, 2020) Herald Sun: Employers are responsible for infection control and the virus is considered a workplace injury.

We've had many discussions with employers who didn't think that workplace transmission could result in workers comp claims, but it definitely can and needs to be managed like any other health and safety risk.

If there is one topic across the entirety of the workplace safety and health space that I know has generated countless forthright conversations across the years, it is workers compensation. To be more precise, discussions about compensation cases that appear to have been awarded where there was only the slightest whiff of association with the act of performing work, or only a skerrick of connection to the workplace.

I gained my interest, and most of my experience, in workers compensation while working in Queensland over the first five years of this century. And though I can now only legitimately claim to be a ticketed member of the ‘just above average’ section of the genre, I still continue to be struck by what I feel is the absurdity of a process that seems to so readily award compensation to and for claims that at best are only able to demonstrate the most tenuous of connections to work, or a workplace. I doubt that is what the founding fathers of any compensation process had in mind when they sat down first wrote out their long-hand drafts of the legislation. 

But, this is how I feel may be the case many COVID-19 claims. Based on what we currently know about the disease, or can rightfully deduce - and I accept that that knowledge base is changing very rapidly - I question how anyone could be absolutely certain of the time and circumstances that most people contracted COVID-19. So, given that legitimate element of doubt, why would compensation claims be accepted?

Denise, what reasons were your clients giving for thinking COVID19 infections and deaths were not claimable?

• Denise: Not being able to prove transmission occurred at the workplace, lifestyle factors, community transmission. The usual suspects Kevin.
• Kevin: Thanks, so their priority is to look how to avoid the responsibility instead of embracing the positive OHS duty. I understand not doing more than the law requires but isn't a strong safety culture established and maintained by exceeding compliance, by "going the extra mile" and showing one's workers that they are valued beyond the lowest legislative requirements?
• Denise: I think more so just understanding this as a new workplace safety issue rather than avoiding responsibility.
• Kevin: I don't see this as a new workplace safety issue although it has been more disruptive. We have been letting the seasonal risks of influenza slide for decades, allowing for the unsafety of presenteeism. We have also been ignoring the infection control actions and purpose of thorough cleaning and disinfecting of workplaces. So it's not a new workplace safety issues, just one that we can no longer avoid.
• Me: Kevin, if things continue down this track, how long before a business is considered liable for their employees catching the common-or-garden variety cold? Does that become compensable? (Or... are we already there?)

 Wouldn’t there be a need to prove the transmission/infection occurred at work?

• Denise: That would be a matter for Worksafe and the Agent, as with any workers comp claim.
• Scott Bruce: Same could be said for a lot of injuries Tony, but the liability is still accepted in lots of cases. If anything, COVID would be easier to attribute to certain jobs than many other injuries.
• Me: Thank you for responding Denise and Scott. Gut feeling is we are in for interesting times ahead, WRT this particular aspect of the pandemic. (And as if these times aren't 'interesting' enough already). I'd be surprised if there weren't plenty of lawyers who'll be sharpening their pencils, in preparation of arguing the toss.Executive profiles – A company is only as strong as its executive leadership. This is a good place to show off who’s occupying the corner offices. Write a nice bio about each executive that includes what they do, how long they’ve been at it, and what got them to where they are.

Interesting, this virus is not a hazard of the employers making or undertaking. If it is introduced by another worker from a social setting, yet is contracted in a work environment, and the only safe guard for reduction is PPE and Admin, surely a robust discussion needs to be had about liability. In my humble opinion.

• Kevin: I agree Mark but we should remember that bushfire smoke and hazardous air quality also was not of the employer's making but still had to be addressed in workplaces.