THE SILENT REVIEW_SPRING EDITION 2021_WEB

The worker travelled to New York for business purposes
on 15 July 2020. On around 18 or 19 July 2020 he began
suffering from symptoms of CovId-19 but did not consult
with a doctor. On 23 July 2020 the worker was admitted
into hospital in New York and diagnosed with Covid-19
on the same date. During his extended period of hospital
admission, the worker suffered several heart attacks and
strokes. The worker died on 21 November 2020 due to
respiratory complications from Covid-19.
The applicant claimed a death lump sum benefit, funeral
and associated expenses and treatment expenses.
In denying liability for the applicant’s claim, the respondent
employer’s insurer contended that the worker contracted
Covid 19 in a social setting outside of the course of his
employment and/or the work performed by the worker
was for a US company and hence was not covered by the
New South Wales Workers Compensation Act.
The issue to be determined by the Personal Injury
Commission was whether the worker was in the course of
his employment with the respondent when he contracted
Covid-19.
The Commission held that the worker probably
contracted Covid-19 during the course of his travel to
the United States. As such, the Commission determined
that the worker contracted the virus in the course of his
employment. Orders entered for the applicant included an
order for payment of a death lump sum benefit in the sum
of $834,200.
The Commonwealth and all State and Territory workers
compensation statutes include provisions for death benefit
lump sum claims, funeral and associated expenses and
claims for weekly compensation where a deceased worker
had a financially dependant spouse and/or financially
dependant children.
With the significant number of deaths resulting from
the 2021 Delta outbreak in NSW, Victoria and the ACT,
it is anticipated that more death benefits claims will be
pursued by families and/or the Estates of worker’s who
suffered fatal Covid-19 infections.
With the gradual increase in domestic operations and
Qantas’s recent announcement of recommencement
of international flights from 1 November 2021, it is also
anticipated that there is potential for a “spike” in the
submission of workers compensation claims by members
who become infected with Covid-19 arising from or
during the course of their employment.
New South Wales based members of the Association
who suffer Covid-19 infection in the future will have the
benefit of 2020 amendments made to the NSW Workers
Compensation Act 1987. The amendments introduced a
presumption that workers in prescribed employment who
contract Covid-19 are automatically presumed to have
contracted it in the course of their employment, unless
the contrary is established.
The Workers Compensation Amendment (Consequential
Covid-19 Matters) Regulation 2020 (NSW) commenced
on 24 July 2020. The Regulation sets out the medical tests
and results for prescribed workers, how the presumption
applies and types of prescribed employment. Prescribed
employment includes employment in passenger
transport services.
Under the Regulation eligible workers are presumed to
be incapable of work until 21 days from the date of
illness, or if the worker still has Covid-19 at this date,
until the end date of the worker’s incapacity, as recorded
on a Certificate of Capacity provided to the worker by
a treating doctor.
To date Melbourne and Brisbane based members and
members employed by Virgin (whose entitlements
fall under the Commonwealth workers compensation
regime) do not have the prescribed employment statutory
status held by NSW members for Covid-19 workers
compensation claims.
In the event that liability is denied for any Covid-19
workers compensation claim submitted by a Melbourne
or Brisbane based member or by a member employed
by Virgin, then it is recommended that the Association is
immediately contacted to enable advice to be provided.
Michael Hyland is a Special Counsel with
LHD Lawyers in Sydney. He was admitted
into practice in the Supreme Court of
NSW in 1993. Michael is also a NSW Law
Society Accredited Specialist in Personal
Injury Law. On referral from the FAAA,
Michael has acted for current and retired
members of the Association since 2002.
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