Section 19B contains a presumption that certain frontline workers contracted Covid 19 during the course of their employment. This presumption recognized the risk essential frontline workers were taking while the rest of us safely isolated at home.
Has that provision resulted in employers paying compensation for a large number of workers who contracted Covid 19 outside of the workplace? Unlikely.
Why? It is only a presumption that can be rebutted by evidence to the contrary. If contact tracers identified a different source of the infection for a particular worker, the employer could dispute the claim.
What it did do was ensure frontline workers who were exposed to the virus at work, did not have to face delays and battles with icare to receive what, in most cases, is compensation for a few weeks loss of wages and potentially some minor medical expenses.
Yesterday the Premier issued a media release announcing the government intended to repeal section 19B entitled NSW Government to save business half billion dollar COVID bill.
If this section is repealed, it will make it harder for workers who did contract Covid 19 at work to claim compensation for their losses.
Those workers will have to prove, on the balance of probabilities:
The virus was contracted during the course of employment; and
Employment was either a substantial or the main contributing factor to the contraction of the disease (depending on their job).
If contract tracers establish a link to the workplace that may, in some cases, be enough to satisfy the test.
In other cases lawyers and medical experts will be consulted, often at a far greater cost to the system than the small amount of compensation claimed.
Here are some frank answers to questions which have been bouncing around the internet recently:
Can an employee sue an employer if they contract Covid 19 at work?
In theory, if the employer has not taken reasonable precautions to prevent infection, yes. In most cases the answer is probably no.
Why? Because in NSW a worker has to have a permanent impairment of at least 15% before they can sue their employer and most people with Covid 19 make a full recovery.
A small percentage of the population who do not recover may reach that threshold.
Why can’t workers claim for other viruses like the seasonal flu?
They can if they can prove the virus was contracted during the course of employment and that the employment was the main (or for exempt workers a substantial) contributing factor to the contraction of the virus.
Why are workers getting huge compo payouts for a virus?
Generally they are not. Most workers are getting paid:
compensation for loss of wages while they are off work, usually several weeks at 95% of their pre-injury average weekly earnings with no compensation for loss of super; and
compensation for their verified medical expenses.
Lump sum compensation is only payable if there is a permanent impairment or death.
We help injured workers get the compensation they deserve. Contact us for more information or book your free appointment here. We are IRO approved legal service providers and there no cost to you to investigate or pursue your workers compensation claim.
DISCLAIMER: This blog is made available by Mortimer Fox Lawyers to give you general information and a general understanding of the law, not to provide specific legal advice. Unless otherwise stated, all information provided pertains to injuries sustained in or in connection with New South Wales. By using this blog you understand that there is no solicitor client relationship between you and Mortimer Fox Lawyers. This blog should not be used as a substitute for legal advice. If you require legal advice please contact us for an appointment.
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