United magazine • Summer 2021

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DO YOU NEED EXPERT LEGAL ADVICE? Carroll & O’Dea have a team of experts ready to assist with your legal needs. When it matters contact Carroll & O’Dea Lawyers. We are committed to support USU members throughout NSW. Whether we assist you with a workplace dispute, property transaction, commercial advice, or a compensation claim, we’ll complete your work to the highest standard. Michael Barnes Partner Scott Dougall Partner Peter Lleonart Partner 1800 059 278 When it matters enquiry@codea.com.au www.codea.com.au 34 • United Summer 2021 Liability limited by a scheme approved under Professional Standards Legislation Level 18, 111 Elizabeth Street, Sydney New South Wales 2000
COVID-19 AND YOUR WORKERS COMPENSATION RIGHTS Injured workers have always been able to claim workers compensation if they contract diseases arising out of or in the course of their employment. This could range from a childcare worker getting chickenpox which is spreading through the preschool in which they work through to an abattoir worker being exposed to raw meat contracting Q fever. The global pandemic caused by Covid-19 led to changes to the Workers Compensation Act and relevant regulations. Those changes were prompted by submissions being made by the Union movement including the USU that it was appropriate to recognise that Covid-19 was in a special category of disease in terms of the impact on the workforce. The key change for workers in Prescribed Employment is that there is a presumption Covid-19 was contracted in the course of the employment. This presumption is important as hopefully at an administrative level will lead to claims being more readily accepted so that the injured worker can be provided with the appropriate support and treatment. The onus of proof is on the employer to rebut the presumption that COVID-19 is work-related. The definition of Prescribed Employment does not align precisely with the clinical/administrative industry or the electricity industry or the airlines industry and/or the local government industry. However, there is certainly employment within the USU membership which I submit could be Prescribed Employment. Examples of the statutory definition of Prescribed Employment includes disability and aged care facilities, libraries, passenger transport services, galleries, the construction industry, pre- schools, the cleaning industry and police and emergency services including the fire brigade and rural fire services. There is still a right to lodge and pursue a claim for workers compensation for injured workers who are not within the Prescribed Employment. There are many persons who in the course of their employment could be exposed and contract Covid-19 without being in the Prescribed Employment. On 14 November 2021 the State Government announced an intention to revoke the amendments that created the presumption of the work relationship in Prescribed Employment. Relying on traditional parliamentary practices it is unlikely that these anticipated legislative amendments will be retrospective, so there is an expectation that the Prescribed Employment arrangements will be in place through to at least mid November 2021. It is not clear whether this legislation will pass through Parliament and the issue will remain under review. Many of the features of dealing with a Covid-19 workers compensation claim are the same as a standard claim. You need to notify your employer of an injury and you need to have medical evidence. Classically you would need to have the appropriate certificate of capacity/certificate of fitness and a positive Covid-19 test. Of course, Covid-19 can at one extreme be grossly debilitating and fatal and at the other extreme there can be very mild cases. It is important to lodge the claim even if there is only a short period of medical incapacity and limited treatment. The focus in that style of claim would be on weekly compensation and medical expenses however, we are increasingly hearing of “long Covid” relating to symptoms such as lethargy, headaches, joint pain and difficulty with memory and concentration. If a worker faces long-term consequences, they might possibly have an entitlement to claim for non-economic loss under section 66. In NSW there has already been one significant case contested before the Personal Injury Commission. Tragically, a worker, Mr Sara died whilst in the United States and a claim was taken up on behalf of his dependent family members. There was a need for scientific and expert opinion as Mr Sara was overseas and it involved considerations of matters such as where, when and in what circumstances he was exposed to the disease and what was the incubation period for the disease. It was found that he contracted the disease on a flight from Sydney to New York. Many workers are mandated to be vaccinated either by a public health order or a lawful order and direction from their employer. Those workers may have a reaction to the vaccine which would entitle them to claim workers compensation. It arises out of and/or in the course of their employment that such workers have been vaccinated. The right to bring the claim arises out of the circumstances of having had the vaccination. It is submitted the same argument would apply for employees who are being strongly encouraged by the employer to be vaccinated or the employer giving directions that the employer could be excluded from a certain workplace unless they were vaccinated. Time does not permit going into greater detail about the potential legal issues in this type of claim. What is important is to call the USU and get referred for advice. It is essential that any worker take advice on their potential workers compensation rights arising out of this disease. If you have a concern secure a referral for a discussion with our Peter Lleonart, Scott Dougall or Michael Barnes. By Michael Barnes, Partner United Summer 2021 • 35
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Page 43 and 44: CHRISTMAS MAZE! COLOUR ME IN GREAT

United magazine • Summer 2021

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