‘Presuming’ COVID-19 arises from work

Nurse Doctor COVID 19 | Boylan Lawyers

If a nurse, cleaner, doctor, or any other profession working ‘on the front line’ assisting with the Covid-19 virus contracts the virus, then these vulnerable workers should be protected as much as possible under State, Territory or Commonwealth workers compensation laws.

Under the Return To Work Act 2014 (RTW Act) South Australia has a list of jobs and medical conditions that are presumed to have occurred (deemed injuries) because the injury or disease occurred when they were undertaking a task that is likely to have caused that injury or disease. Unless there is proof to the contrary from the insurer/employer (the reverse onus) then the claim for that injury is accepted.

Covid-19 must be included in that list, at least for workers such as nurses, doctors and cleaners who are working in ‘high-risk’ areas, or the front line as mentioned above. Section 9 is the evidentiary provision under the RTW Act

“An injury isn’t compensable unless it can be established on the balance of probabilities it arises from employment

As it stands, our State legislation requires a worker who contracts the virus prove they contracted it from work. Imagine then a nurse working in a clinic who tests and/or treats Covid-19 cases. The law as it stands says the nurse would need to establish, they contracted the virus from work, on the balance of probabilities. That may be difficult if for example other members of the nurse’s family (or friends) also contract the virus around the same time as they did.

S188(1) assists to some extent;

“ An injury…that develops gradually or is a disease will be taken to have occurred when the worker first becomes totally or partially incapacitated for work by the injury”

However, the worker still needs to establish the injury creating the incapacity is ‘a work injury’ as defined under s7(1) of the Act;

“This Act applies to an injury if (and only if) it arises from employment”

 Section 9(4) of the RTW Act allows Regulations to be made ‘on the recommendation, or with the approval of the Corporation’ to add a job and an illness/disease to schedule 2 Injuries.

As an example, Asbestosis is a schedule 2 injury. The worker who contracts Asbestosis need only show they had worked with asbestos previously. So surely contracting Covid-19 should be considered in the same light?

There are 24 schedule 2 injuries at present and that number must be increased to 25 and have retrospective effect.