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An article in the Age on 18 August 2020 regarding “Health staff want automatic WorkCover rights, as new mask concerns emerge” detailed concerns of health workers in having their WorkCover claims accepted automatically by WorkSafe when lodged.

As personal injuries lawyers at Gordon Legal, our team have the privilege of looking after members of the Australian Nursing Midwifery Federation in Victoria and the Victorian Ambulance Union. These Unions and their members are at the forefront of the war against COVID-19. Their members and health workers more broadly currently make up approximately 15% of all diagnosed cases in Victoria.

There is currently significant miscommunication and misunderstanding in relation to whether a claim for COVID-19 by a worker will be accepted. In our experience this has resulted in workers not lodging claims once diagnosed. This is unacceptable and unfair to those who have contracted this disease and confront it without the support of our WorkCover system. We don’t yet know enough about the long term health effects of contracting COVID-19. For some, it may just mean a couple of weeks off work. For others, they may have long term medical issues that will require treatment and support. For this reason, having the capacity and the know-how to access WorkCover entitlements is important.

Here are the facts that every worker and employer need to know about COVID-19 and their rights and entitlements in the WorkCover system:

Why are diseases regarded differently to injuries in the WorkCover legislation?

The very nature of what a disease is and how it manifests is the reason it is treated differently in the legislation. A disease includes “any physical or mental ailment. Disorder, defect or morbid condition whether of sudden or gradual development”.

A disease may be caused by many different exposures. For example, if a worker suffers lung cancer it may have been caused by exposure to asbestos in the course of their employment or it may be caused by the fact they were a smoker or the combined effects of both exposures. The fact is, it is usually impossible to know for sure.

Because of this complexity, diseases are treated differently under the Victorian WorkCover legislation.

What is a proclaimed disease?

A proclaimed disease relates to certain diseases that relate to places, processes or occupations that are proclaimed in the Government Gazette.

A worker with a proclaimed disease is entitled to compensation irrespective of whether work contributed to the disease unless it is proved that the disease was not due to employment.

What is the legal test to have a WorkCover claim accepted for a disease?

The applicable test is not what caused the injury but the ‘nature of employment test’. For the claim to be accepted you must demonstrate that the “nature of the employment gave rise to a significantly greater risk of the worker contracting the disease than had the worker not been employed in employment of that nature”.

An example would be stonemasons and silicosis. The nature of a stonemason’s employment has been shown to give rise to a significantly higher risk for contracting silicosis.

If a worker was cutting their own home stone bench outside their paid employment as a stonemason, and therefore the home bench may have been a cause of the disease, the claim should still be accepted as a WorkCover claim under the nature of employment test for that stonemason.

Does contact tracing determine whether a WorkCover claim will be accepted?

Contact tracing may in many instances answer the question as to the cause of the worker contracting COVID-19. Whereas figures quoted in the Age article indicated only 15% of workers in health care had contracted COVID-19 from work, the most recent figures suggest up to 80% of health care workers with the virus got it at work

But in any event, the question of what caused the disease is however different to the question of whether the WorkCover claim should be accepted. The appropriate question at law is “did the nature of the workers employment in health care give rise to a significantly higher risk of the worker contracting COVID-19 than had the worker not been employed in the health care sector?”

Considering the “nature” of a worker’s employment means looking at the instances, tendencies and characteristics of their work. In the example of health care workers and COVID-19, one of the important characteristics would be potential for exposure (on the balance of probabilities) to COVID-19 in employment. So in circumstances where a worker has had work and non-work or community exposures to the virus, a worker is still entitled to WorkCover benefits.

Should we be advocating for COVID-19 to be a proclaimed disease? Does it assist workers to have COVID-19 claim accepted?

The answer to the first of these questions is yes. It is important that legislators recognise that some industries and professions carry particular risks of injury and disease, and make it easier for those in those fields to have claims accepted for work related injuries.

The answer to the second question is yes, in many circumstances.

A declaration that COVID-19 is a proclaimed disease for healthcare workers will provide assistance in streamlining hoops that a worker may need to jump through to have their claim accepted. This is because it would deem that contraction of COVID-19 was due to the nature of employment as a health care worker. However, if an insurer demonstrates the disease was not contracted at work, the claim fails on the “proclaimed disease” test even if the virus has been made a “proclaimed disease”. In short, it is likely to help many, but not all healthcare workers.

That said, regardless of whether COVID-19 is a proclaimed disease, there are already provisions within the Victorian WorkCover legislation (the nature of employment test) that allow health care workers access to important WorkCover entitlements where their employment has put them at an increased risk of developing COVID-19.

It is becoming clearer each day, that healthcare workers do face an increased risks of contracting COVID-19 due to the nature of their work, and that if they contract the virus, they should be lodging WorkCover claims now to access entitlements.

What should healthcare workers with COVID-19 do?

Every Victorian worker who suffers COVID-19 and believes that their work may have played a role, should lodge a WorkCover claim immediately.

It makes no sense that there have been only a handful of claims from meat workers, health care workers, those who work in public transport or education, when it is clear that these workers employment have a disproportionately high rate of infection in our community.

The WorkCover system is there to support workers. The first step in accessing this support is to lodge the claim.

Rachel Schutze and Victoria Keays are Principal Lawyers at Gordon Legal. If you are concerned about your rights at work during the pandemic, please call Gordon Legal at 1800 21 22 23.

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