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By Anna Patty and Lucy Carroll

Workers’ compensation claims for contracting COVID-19 are expected to surge at the end of the NSW lockdown, with the industry regulator predicting a bill of up to $638 million within 12 months.

Workplace lawyers said employers and building owners face potential prosecutions or lawsuits from staff who can prove they were infected with COVID-19 at work.

A State Insurance Regulatory Authority spokeswoman said its estimate of the $638 million cost of compensation was based on 80 per cent vaccination coverage of the adult population.

“This estimate does not include costs associated with psychological injuries not associated with COVID-19 diagnoses, or the additional claims’ management costs that will be incurred by insurers,” she said.

The authority said there had been 1593 COVID-19 claims since the pandemic started last year to October 1, including 1198 since June 16 when the Delta outbreak started. The total payment for COVID-19 related claims was $7.1 million to July, with an expected gross cost of $13.9 million for the year.

The most affected industries so far have been supermarkets and grocery stores, with 279 COVID-19 notifications and claims between June 16 and September 24. Takeaway food services had 101 claims and notifications, police services 91, correctional services 51, department stores 48, hospitals 46, fruit and vegetable wholesaling 30, building and other industrial cleaning services 30, other health care services 30, primary and secondary schools 25.

While workers’ compensation claims are expected to increase, non-essential workers will need to prove they were infected with the virus at work and not elsewhere, including on public transport or the shops.

The NSW government last year introduced legislation for essential service workers including hospital staff that automatically presumes they contracted COVID-19 in the workplace. That automatic presumption does not apply to millions of other employees returning to ordinary workplaces from Monday.

Workplace lawyer Michael Tooma, a managing partner at Clyde and Co, said it could be more difficult for those who fall outside “prescribed employment” such as retail, education and healthcare, to claim compensation for catching the virus at work. But evidence from genomic testing and contact tracing might be used to help non-essential workers prove they contracted COVID-19 at work.

“Businesses who intend to remove restrictions on unvaccinated persons at that point, without additional precautions such as requiring negative rapid antigen tests, risk a rise in workers’ compensation claims and premiums,” he said. “They also risk claims by the public including class actions in the event of an outbreak.”

As workers returned to offices and hospitality venues with reduced restrictions, Mr Tooma said employers and building owners would need to focus on their duty of care under work, health and safety laws. A breach could potentially give rise to being sued for negligence or to prosecution by Safe Work.

NSW Premier Dominic Perrottet on Thursday announced parts of the road map for easing COVID-19 restrictions would be fast-tracked, with masks not required in offices from the Monday after the state reaches 80 per cent full vaccination.

Mr Tooma said people who own or manage buildings used as a workplace would need to assess the adequacy of their ventilation and airflow to minimise the risk of COVID-19 infection “so far as reasonably practicable”.

“Failing to do so could be a breach of duty of care,” he said.

Curtin University adjunct professor of workers’ compensation and workplace law Robert Guthrie, said some businesses may need to continue using masks to maintain safety. “If the employer is aware of any potential risk then they have to take action to reduce that risk or prevent it,” he said. “That might mean wearing masks, social distancing or insisting people are fully vaccinated before they return to work.

“If you were suing an employer you would have to establish the work caused the COVID and that will always be difficult in some cases because of the fact you have community spread. You would have to have a very clear case of lack of care and causation.”

A SafeWork NSW spokeswoman said a person conducting a business or other undertaking was required to manage any potential risks of COVID-19 to workers and others in the work environment. “Businesses and workers must comply with national and state public health orders. Such requirements may require addressing office layouts, utilisation and ventilation systems,” she said.

Azmeena Hussain from Maurice Blackburn Lawyers said she had seen an increase in workers’ compensation claims from workers in the health, retail, warehouse, truck driving and maritime industries. “I would say most certainly workcover claims are on the rise,” she said.

A spokesman for Customer Service Minister Victor Dominello said while the cost impact of COVID-19 on the workers’ compensation scheme remained uncertain, the multi-billion dollar claims cost projected by actuaries in April 2020 has to date not materialised.

Bernie Smith, the NSW secretary for the Shop, Distributive and Allied Employees’ Association, representing retail, fast food and warehouse workers said there was a risk workers’ compensation claims could rise as the retail sector opens up if operators do not minimise the risk of COVID-19 transmission in their outlets.

A spokesperson for United Workers Union said there was little knowledge among members that compensation could be claimed for contracting coronavirus in the workplace.

Source: Original article published in SMH –

“At the moment, this is a significant grey area, so we encourage employers to contact BetterHR’s experienced HR consultants, and qualified lawyers on 1300 659 563 or visit: for specific advice to meet your individual business needs.” says Sean Wilson, BetterHR’s CEO.

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