As COVID-19 has collectively disrupted the normality of business operations, how does it affect Workers Compensation Claims and Premiums? Support has been offered by SIRA, icare and the Government through legislation change. With this support, Employers and Employees need to be aware of how COVID-19 has specifically impacted premiums and the claims process.

Changes to workers compensation and motor accidents legislation

The COVID-19 Legislative Amendment (Emergency Measures) Act 2020 was passed by NSW Parliament on Tuesday 24 March 2020. This Act includes changes to the Workers Compensation Act 1987 and the Motor Accident Injuries Act 2017 to relieve pressure on general practitioners and the overall health system during the COVID-19 pandemic.

The legislation changes regulation and guideline, creating powers to provide a degree of flexibility for certification of an injured person’s ability to work. The changes enable treating allied health professionals to issue second and subsequent certificates of fitness and capacity.

NSW workers compensation regulator reporting on COVID-19 claims

SIRA is now reporting on COVID-19 related workers compensation claims (including related mental health claims). Daily updates are offered by SIRA of how many claims are made a day. As of Wednesday 22 April 2020, a total of 180 claims / notifications were made, which is an increase of 7 since the previous day.

NSW workers compensation insurer premium related support

The NSW workers compensation insurer (icare) has agreed to three key measures.

• Deferring premium payments for up to six months for businesses experiencing financial hardship;
• Reducing employer wages and coverage to reflect new circumstances, which may result in a reduced premium or refund; and
• Refunding employers for unused premium portions while keeping policy’s active for when the business resumes.

SIRA and icare are currently working through the Government’s new JobKeeper payment, including any impacts this may have on calculating workers compensation insurance premiums and will provide further information when this becomes available.

Workers compensation claims for COVID-19

A virus (like COVID-19) would be considered a disease injury under Section 4 of the Workers Compensation Act 1987. For a disease injury to be compensable, the disease must be contracted in the course of employment and employment must be the main contributing factor to contracting the disease.

For viruses, it can be difficult to accurately determine the exact time and place of contraction. As a result, it may be difficult to determine that employment was the main contributing factor to contracting the virus. However, where an employee’s employment puts them at greater risk of contracting the virus, this test may be easier to meet. For example, if the employment involves:

• travel to an area with a known viral outbreak;
• activities that include engagement or interaction with people who have contracted the virus;
• activities that contravene Department of Health recommendations.

Can I claim workers compensation, if I think I contracted COVID-19 at work?

Yes, in some circumstances coronavirus (COVID-19) may be a compensable workplace injury because a disease is included in the definition of injury under the Workers Compensation Act. However, to be compensable, work activities must be proven to be the main contributing factor to contracting the virus. Due to the nature of viruses, it may be difficult to determine that employment was the main contributing factor. Each claim will be assessed on its individual merits. If you want to lodge a claim for contracting COVID-19 at work, please follow the usual claim lodgement process.

Consideration may be given (but not limited) to:

• Travel to an area with a known COVID-19 outbreak;
• Activities that include engagement or interaction with people who have contracted COVID-19.

Injured workers are required to produce Certificates of Capacity for any period in which they are entitled to weekly payments. Insures operate under this legislation. During a pandemic situation, it may be difficult to obtain medical advice or visit a doctor on a specific day. However, the legislation contains special provisions that may assist you and ensure you continue to receive weekly payments. Certificates can be issued for more than 28 days in special circumstances. Similarly, a Certificate can be backdated up to 90 days if you are having trouble getting an appointment. Obtaining a backdated Certificate may mean that your weekly payments are delayed until the Certificate is received and processed. If you cannot obtain a Certificate of Capacity as soon as your previous Certificate expires for the above reasons, contact your case manager.

How my weekly payments be affected if I do not attend my doctor’s appointment as I’m worried I will catch COVID-19?

Legislative requirements are such that injured workers need to attend medical appointments at certain periods of time. It could be to obtain a Certificate of Capacity or it could be a medical examination that has been requested for a particular reason.

Certificate of Capacity; if you need a Certificate of Capacity, to be entitled to weekly payments. The legislation does provide some flexibility to ensure you can still receive weekly payments in situations where you cannot see your doctor straight away or as regularly as you are used to. However, you must discuss this with your case manager and employer first.

Medical examinations; the legislation allows insurers to request an injured worker attend a medical examination. If an injured worker unreasonably refuses to attend this examination, their weekly payments may be suspended. What constitutes an unreasonable refusal will depend on the circumstances.

An insurer may consider issues including (but not limited to):

• Whether the venue for the examination is an area with a known viral outbreak
• Advice from NSW Health about people travelling to certain places, or whether certain types of people (elderly, the young, immune-compromised) should restrict their travel.

You should speak to your employer about any concerns you have about attending work in the first instance. Employers will have plans are in place to reduce risk in your workplace or will advise of any special arrangements that are in place. The legislative requirements are that injured workers need to make reasonable efforts to return to work. If an insurer does not believe a worker is making reasonable efforts, it may take steps to suspend a worker’s weekly payments. What constitutes an unreasonable refusal to return to work will depend on the circumstances.

For any assistance or further clarification please contact your dedicated Gow-Gates Account Manager.