COVID-19 is a workplace injury, says New South Wales Personal Injury Commission

By Sarah Thiruneelakandan, Amy Toohey
16 Sep 2021
Contracting COVID-19 in the course of employment may constitute a workplace injury and be within workers' compensation schemes.

A recent New South Wales' decision has become the first workers' compensation dispute before an Australian tribunal to award workers' compensation for an employee's death from COVID-19.

The decision is instructive in setting a precedent for the principle that contracting COVID-19 in the course of employment may constitute a workplace injury and as such, form a compensable injury under relevant State and Territory workers' compensation schemes.

It's particularly interesting in light of the current debate surrounding vaccination mandates and may strengthen the argument that mandating COVID-19 vaccines for employees is in accordance with an employer's duty to provide a safe workplace.

It also illustrates the costs businesses could face if their employees contract COVID-19 during work-related activities by opening up the possibility of an award of compensation for incurring such an injury.

Mr Sara's COVID-19 infection

The deceased, Mr Sara, was a dental technician who died in New York in November 2020 from complications resulting from COVID-19. His widow, Mrs Sara, commenced a workers' compensation claim against Mr Sara's employer G & S Sara Pty Ltd.

The New South Wales Personal Injury Commission found that Mr Sara was exposed to and contracted COVID-19 between boarding a flight at Sydney airport and arriving at his accommodation in New York when on a work trip in July 2020. This finding was based on several factors, including the onset of symptoms, Mr Sara's documented reluctance to wear a mask, the likely exposure to many people during the travel period, and the medical evidence of the likely incubation period.

The Commission also found that the virus had caused strokes, heart attacks and profound respiratory failure in Mr Sara, which fell within the meaning of "personal injuries" under section 4 of the NSW workers' compensation legislation.

A COVID-19 infection "in the course of employment"?

The respondent argued that Mr Sara did not contract COVID-19 in the course of his employment and as such, they could not be liable for his death. The Commission accepted that certain of Mr Sara's business in the US would not be considered as occurring in the course of his employment. However, the period of travel to the US, being the period when the Commission found that Mr Sara contracted COVID-19, was within the course of employment with the respondent because it had induced and encouraged that activity. Given that Mr Sara contracted COVID-19 while traveling, the "injury" was found to have been sustained in the course of his employment with the respondent company.

The Commission found that Mrs Sara was entitled to the lump sum death benefit payable at the date of Mr Sara's death. She was also entitled to specialised insurer expenses and body transport expenses, and to weekly compensation beginning with the date Mr Sara contracted COVID-19 until his death. Mrs Sara also sought compensation of $11 million for the cost of medical expenses, an issue which the Commission stood over for the parties to consider the various maximum recoverable amounts.

The award sought illustrates the scope of compensation that may be available and awarded in future matters of this nature.

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