Where did the Novel Coronavirus or COVID-19 come from?

On 31 December 2019, the World Health Organisation was first informed about a growing number of pneumonia cases being diagnosed in Wuhan City, China. At the time, the cause of these infections was unknown but it was believed that they were somehow connected to the Huanan Seafood Wholesale Market. On 1 January 2020 the market was closed down. On 7 January 2020 the Chinese government announced that a novel coronavirus had been identified as the cause of the infections.

On 23 January 2020 the Chinese government placed Wuhan City in quarantine and the province of Hubei in lock down days later. The World Health Organisation named the virus COVID-19 on 11 February 2020 and declared the outbreak a global pandemic on 11 March 2020.  

Put simply, coronaviruses are a large family of viruses. These particular viruses result in illness that range from the common cold to severe respiratory disease. A novel coronavirus is a new version of the virus that has not been identified in humans before. It is suspected that COVID-19 was passed from wild bats to another host animal before being transferred to humans or simply transferred from wilds bats to humans.

The World Health Organisation sent a two person team of experts to China in mid July 2020 to prepare for a larger international investigation. The time frame for the broader investigative mission has not been specified by the World Health Organisation but it has confirmed that its investigation would focus on epidemiology and understanding the nature of the first infections through which it is hoped to then narrow down the source animal that caused COVID-19.   

What is the Novel Coronavirus or COVID-19?

In simple terms, COVID-19 is an illness caused by a virus. The virus is easily spread from person to person, but good hygiene and social distancing can help to prevent infection.

COVID-19 symptoms can include fever, coughing, a sore throat, shortness of breath and fatigue. In relatively benign cases, COVID-19 symptoms can be likened to those experienced during a common cold. In more acute cases, symptoms are more like that of a flu and can worsen causing pneumonia, respiratory failure and death.     

If I contract COVID-19 at work can I claim workers’ compensation?

In workers’ compensation law the legal question of ‘causation’ is an important issue in determining whether a worker is eligible to receive workers’ compensation payments. A workers’ compensation claim involving COVID-19 would raise the question of where exactly was the virus contracted. Was the virus contracted at work, at home or elsewhere?

Since the beginning of the COVID-19 pandemic Australian legal jurisdictions have moved to consider legislative amendments to ensure that workers can claim for workers’ compensation benefits without there being any live causation issues concerning where the COVID-19 virus was actually contracted by a worker.

New South Wales has moved quickly to amend its Workers Compensation Act 1987 (NSW) (“the NSW Act”). The NSW amendments in Section 19B of the NSW Act are broad in scope and include the following presumptions relating to certain employment in relation to COVID-19:

(1) If a worker, during a time when the worker is engaged in prescribed employment, contracts the disease COVID-19 (also known as Novel Coronavirus 2019), then for the purposes of this Act, it is presumed (unless the contrary is established)—

(a) that the disease was contracted by the worker in the course of the employment, and

(b) the employment—

(i) in the case of a person to whom clause 25 of Part 19H of Schedule 6 applies—was a substantial contributing factor to contracting the disease, or

(ii) in any other case—was the main contributing factor to contracting the disease.

In this Section of the NSW Act ‘prescribed employment’ means employment in any of the following scenarios:

• the retail industry (other than businesses providing only on-line retail);
• the health care sector, including ambulance officers and public health employees;
• disability and aged care facilities;
• educational institutions, including pre-schools, schools and tertiary institutions (other than establishments providing only on-line teaching services);
• police and emergency services (including fire brigades and rural fire services);
• refuges, halfway houses and homeless shelters;
• passenger transport services;
• libraries;
• courts and tribunals;
• correctional centres and detention centres;
• restaurants, clubs and hotels;
• the construction industry;
• places of public entertainment or instruction (including cinemas, museums, galleries, cultural institutions and casinos);
• the cleaning industry; and
• any other type of employment prescribed by the regulations for the purposes of this definition.

In Western Australia the Workers’ Compensation and Injury Management Amendment (COVID-19 Response) Bill 2020 (“the WA Bill”) was introduced into Parliament on 24 June 2020. While the WA Bill does not specifically mention COVID-19 it confirms in Section 49F that:    

(1) The regulations may –

(a) specify diseases for the purposes of this section (each a prescribed disease);

(b) for each prescribed disease specify 1 or more kinds of employment as prescribed employment for that disease.

(2) The regulations cannot specify a disease to which section 33 or 34 applies.

(3) Subject to the regulations under subsection 4, if a worker suffers an injury by contracting a prescribed disease and the worker is working in prescribed employment when the worker suffers the injury or worked in prescribed employment at any time before suffering the injury, the prescribed employment is, for the purposes of this Act, taken to have been a contributing factor and to have contributed to a significant degree to the prescribed disease, unless the employer proves the contrary.

(4) The regulations may—

(a) impose conditions or limitations on the operation of subsection 3; and

(b) specify the day on which subsection 3 applies to a worker or class of worker in relation to a prescribed disease; and

(c) specify the day on which an injury by contracting a prescribed disease that under subsection 3 is taken to be from prescribed employment is taken to have been suffered.

At the time of writing there has been no formal notification of how the regulations will be amended to provide protection to workers impacted by COVID-19. A media release from the West Australian Health Minister on 24 June 2020 notes that “regulations will address health care workers suffering COVID-19 as a priority, this means workers will not be required to go through lengthy and costly claim investigations to prove they contracted COVID-19 at work”. The media release also confirms that the regulations will “establish a presumption of work-related injury for prescribed diseases contracted by workers in prescribed employment”.

The key takeaway here is, that for prescribed diseases contracted by workers in prescribed employment, it will be presumed that the illness was contracted while the worker was at work or in the course of their employment. The onus will therefore be on the employer or insurer to rebut the presumption and establish that the worker did not contract the disease at work.

Will I still be paid workers’ compensation payments if I get COVID-19?

Within the West Australian workers’ compensation system the regular payments that compensate an injured worker for loss of earnings are known as ‘weekly payments’. The amount of regular compensation or weekly payments an injured worker receives depends on how many hours they were working prior to their accident, how much they were being paid per hour, whether they worked under an industrial award and whether any allowances were regularly paid.

A worker who is in receipt of weekly payments is certified by a medical practitioner as being either partially unfit or totally unfit for work. The cause of the incapacity to work must be the work injury or disease for which the workers’ compensation claim was made. 

Weekly compensation payments are payable irrespective of whether a subsequent illness or injury is suffered and even if an incapacity results from that subsequent illness or injury, providing that the initial work related incapacity continues (See Ward v Corrimal-Balgownie Collieries Ltd (1938) 61 CLR 120).

If the work related injury or illness stops being the cause of the worker’s incapacity and the incapacity results from a pre-existing or subsequent condition that is not work related, the worker is no longer entitled to compensation payments. This is simply because the injured workers’ incapacity is no longer caused by the initial work injury or illness (See Salisbury v Australian Iron and Steel Ltd (1943) 44 SR (NSW) 157).

Taking this information on board, if an injured worker receiving weekly payments contracts and suffers from COVID-19 they should continue to be paid compensation as long as they simultaneously continue to be incapacitated by their work injury or illness and suffer from COVID-19. 

What happens if a workers’ compensation claimant dies from COVID-19?

In the unfortunate event of a workers’ compensation claimant dying from COVID-19 and not from their work injuries or illness, the compensation claim will be significantly impacted. Here, Schedule 1A, Division 3 of the Workers’ Compensation and Injury Management Act 1981 (“the Act”) applies if:

(a) the worker’s death does not result from the injury; and

(b) the worker has been in receipt of, or was entitled to receive, weekly payments for not less than 6 months immediately preceding the worker’s death; and

(c) no order for payment of a lump sum in redemption has been made under section 67; and

(d)no memorandum of agreement for payment of a lump sum in redemption has been recorded under section 76; and

(e) no memorandum of the terms of a settlement has been filed under section 92(f).

If Division 3 of the Act applies, partners and children of the deceased workers’ compensation claimant may be paid lump sum compensation in the amount of 52 weeks of aggregate weekly payments calculated at the rate and varied as at the date of the worker’s death.

It is strongly advised that expert injury law advice is obtained when dealing with these types of claims. These matters rely heavily on the particular facts of the case and can involve complex legal issues and negotiations.    

If I contract COVID-19 what will happen if I have a motor vehicle accident, public liability or industrial negligence claim? 

If you have made a motor vehicle accident, public liability or industrial negligence compensation claim and are required to self-isolate, be quarantined or suffer COVID-19 during your claim, in all likelihood, your claim for either past or future loss of income or loss of superannuation benefits will be adversely effected. Although no formal legal guidance is currently available (through recent legislation or common law decisions), if a claimant is prevented by COVID-19 from working and suffers economic losses, it is likely that these losses will be deducted from the compensation that may be awarded for past and future economic losses. These deductions could be imposed even if the original injuries continue to cause incapacity for work.

What happens if a motor vehicle accident, public liability or industrial negligence claimant dies from COVID-19?

Unfortunately if a person making a motor vehicle accident, public liability or industrial negligence compensation claim dies from COVID-19 the claim is essentially extinguished. An action may, however, be brought by the Executor of the Deceased Estate to claim for financial losses incurred prior to the passing of the claimant. These are usually very complex legal matters that involve skillful negotiation. In claims like these, a specialist plaintiff injury lawyer may be able to settle the claim and secure a lump sum compensation payment.     

How can an expert plaintiff injury lawyer assist you during the COVID-19 crisis?

Separovic Injury Lawyers has moved quickly to protect our staff, operations and provision of service against the impact of COVID-19. We continue to assist new clients and are successfully settling existing claims during these uncertain times. We are closely monitoring and adapting to the directives handed down by the Federal and State Governments and Health Departments, WorkCover WA and the Courts. COVID-19 is a cause for significant uncertainty and distress. If you have any concerns about how COVID-19 may impact your personal injury compensation claim please do not hesitate and call us now for expert legal advice.