Summary

Given the recent outbreak of Coronavirus (COVID-19), it is worth noting that the contraction of an infectious disease due to a virus entering the body during the course of employment may constitute a compensable injury. Whether or not the injury will be compensable will depend to a large extent on the expert medical evidence.

Case law

The contraction of an infectious disease due to a virus entering the body during the course of employment has been held to constitute an injury: Favelle Mort Ltd v Murray [1976] HCA 13. The relevant issue will be whether, on the balance of probabilities, the virus occurred during the course of employment.

In the NSW Workers Compensation Commission there have been some related cases, which provide a guide in relation to the current Coronavirus outbreak.

In Bee v NSW Department of Community Services [2014] NSWWCC 191, Ms Bee contracted swine flu which she alleged was transmitted from one or both of two foster children who were in her care as a registered foster carer, having been so appointed by the employer.

Arbitrator Foggo indicated that ‘all the applicant has to prove on the balance of probabilities is that the children (or one of them) were infected and that such infection was passed on to the applicant’. In this respect, the only expert opinion was in favour of the worker and so Ms Bee was (at first instance) successful with her claim. Ms Bee lost on appeal but only on the issue of whether she was a worker.

In Zalfelds v NSW Department of Education and Communities [2015] NSWWCC 255, Ms Zalfelds contracted whooping cough which she alleged was as a result of exposure to the Bordetella pertussis bacterium in her workplace and the consequences of the infection resulted in an aggravation of pre-existing chronic obstructive pulmonary disease.

Arbitrator Brown adopted a similar test to that in Bee. He was not satisfied the evidence was of sufficient weight or the inferences were strong enough for him to be satisfied that Ms Zalfelds was suffering the effects of whooping cough as a result of an exposure to Bordetella pertussis bacterium received in her workplace. In that context, he noted the lack of reference to whooping cough in the contemporaneous records of the treating doctors. An Award was made in favour of the respondent.

Application to the workplace

The practical effect of the above authorities is that workers will most likely require direct factual and medical evidence that they have contracted a virus in the course of their employment. To satisfy the “balance of probabilities test” it would seem they need to identify the carrier of the virus and that they were infected in the workplace.

Employers and insurers accordingly need to consider each claim on a case by case basis, with close consideration of the factual and medical evidence.