COVID-19 Workers Compensation Claim for a Healthcare Worker
Walmsley v Adventist Health Care Limited [2022] NSWPIC 612
A healthcare worker has been granted workers’ compensation for the contraction of COVID-19, despite circumstances that involved the worker’s family testing positive and a lack of known examples of COVID-19 being present in the workplace at the same time.
The decision of the Personal Injury Commission represents the scope of the 2020 amendment to the Workers Compensation Act, which introduced a presumption that workers, including frontline workers, infected with COVID-19 contracted it on the job.
The COVID-19 Presumptive Law
Section 19B of the Workers Compensation Act 1987 (NSW) (‘the 1987 Act’), introduced by the Greens in 2020, established that if a worker was employed in ‘prescribed employment’ at the time they contracted COVID-19, that it was presumed that COVID-19 was contracted in the course of employment. The amendment aims to make it easier for workers to receive support by removing the requirement to prove they were not infected in the community when making a related workers’ compensation claim.
The presumptive law was in the headlines earlier this year as the NSW Government tabled a bill to repeal the law in late 2021 citing the benefits for businesses if it was removed. Peak groups from medical and educational bodies representing frontline workers urged the NSW government to abandon its plan. The scrutiny resulted in the Bill being referred for parliamentary inquiry and a report was released on 21 February 2022 recommending the Bill to remove the amendment be scrapped.
The facts of the case
In these proceedings, the Appellant worker, Ms Walmsley, was employed on a part-time basis as a registered nurse with the respondent at San Day Surgery Hornsby which is owned by Adventist Health Care Limited. The worker tested positive for COVID-19 on 10 February 2022 on a PCR test and was not able to return to work until 1 March 2022 due to ongoing symptoms including a persistent cough, runny nose, and chest pain. She claimed weekly compensation as a result of having no capacity for this period relying upon provision 19B of the 1987 Act.
The worker had been working 20 hours per week with the respondent up until 27 January 2022 including working closely with patients and as a close contact with a colleague who tested positive for COVID-19 on 12 January 2022. The worker reported that she turned up negative on a RAT following this interaction despite being unwell since her last dose of the Astra Zeneca vaccination.
The worker continued to work until Thursday 27 January but before her next shift, her son began experiencing chest pains and subsequently tested positive for COVID-19 on 31 January. Both her daughter and husband subsequently tested positive before the worker who did not test positive on a PCR test until 10 February 2022. Ms Walmsley was not able to return to work until 1 March 2022 due to ongoing symptoms including a persistent cough, runny nose, and chest pain. Ms Walmsley claimed weekly compensation as a result of having no capacity for this period, relying upon provision 19B of the 1987 Act.
The decision of the insurer
The insurer for Adventist Health Care Limited issued notices dated 7 March 2022 and 1 July 2022 disputing liability on the basis that the worker’s COVID-19 diagnosis does not relate to her workplace or employment.
The insurer relied upon evidence from the Statement of a rehabilitation coordinator who worked with the employer. This statement largely focussed on the apparent lack of risk of COVID-19 in the workplace, including that only one employee had tested positive since the return from the Christmas break and that there were no known COVID-19 positive patients through the day surgery.
The insurer also arranged a report from Dr Flecknoe-Brown, consultant physician and clinical pathologist. He refers to the National Guidelines for Public Health Units where it is stated that the incubation period for the variants of the Omicron strain of COVID-19 has an average of three days, with a range of 0-10 days. Dr Flecknoe-Brown concluded that, on the balance of probabilities, the applicant did not contract COVID-19 at work because she did not test positive for 14 days after her last day of work. Reasoning instead that “Caring for three family members with the disease is, more likely than not, the source of her infection.”
Determination
The issue in question was only whether the applicant obtains the benefit of Section 19B of the 1987 Act and is entitled to weekly payments of compensation for the period from 10 February 2022 to 28 February 2022.
Member Isaksen noted that the evidence relied upon by the employer did not adequately address whether the applicant might have contracted the disease from a patient attending the surgery.
The system of admission into San Day Surgery Hornsby was dependent on the return of a negative RAT test, a test which has an inherently lower sensitivity than a PCR, and the truthfulness of the patients that they had returned a negative RAT.
Member Isaksen also considered that there was no expert evidence on whether the symptoms the worker complained of throughout January and February could be due to both the vaccination and the contraction of COVID-19. There was also no expert evidence considering whether the worker could have retained traces of COVID-19 and remained symptomatic when she eventually underwent the PCR test on 10 February 2022.
The Member was not satisfied that the respondent had established a contrary position which reversed the presumption made in favour of the worker. An award for wages was granted in the workers’ favour.
Implications
The fact a worker, following their last day of work, tests positive for COVID-19 outside of the ‘normal incubation period’ and was residing with COVID-19 positive family members is not enough to reverse the presumption in Section 19B of the 1987 Act. The respondent relied upon only one potential cause for the worker contracting COVID-19, the theory provided by Dr Flecknoe-Brown, but failed to put forward evidence that disproved the real possibility the worker contracted the disease due to patients at San Day Surgery Hornsby.
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