Eligibility / compensable injuries

Overview

In workers compensation, an injury can be both a personal injury and a disease injury. It doesn't have to be one or the other. For example, a worker who suffers a personal injury like a fall can also aggravate an underlying disease in the same incident.

This guidance discusses what constitutes a disease injury and what follows from that.

Further information on what constitutes an injury can be found in Insurer guidance GN 2.2 Injury.

What constitutes a disease injury?

As defined in section 4 of the Workers Compensation Act 1987 (1987 Act), the definition of injury:

(a) means personal injury arising out of or in the course of employment

(b) includes a disease injury which means:

(i) a disease that is contracted in the course of employment but only if the employment was the main contributing factor to contracting the disease, and

(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease.

The definition of injury was amended by the Workers Compensation Legislation Amendment Act 2012 (2012 Amendment Act) and applies to diseases (and the aggravation thereof) contracted on or after 19 June 2012.

The definition of ‘disease injury’ in the 1987 Act and the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) differs - unlike the definition of injury in the 1987 Act, the definition in the 1998 Act was not amended in 2012. For the purposes of managing claims, insurers should use the 1987 Act definition.

Note: The 2012 amendments do not apply to exempt workers. For exempt workers, employment needs to be a substantial contributing factor rather than the main contributing factor.

In the course of employment

A disease injury must be contracted in the course of employment, or aggravated, etc in the course of employment (that is, while performing work duties or something incidental to those duties). For relevant case law on 'in the course of employment', see Insurer guidance GN 2.2 Injury.

Employment as a main contributing factor

For a disease injury (including aggravation to a disease), section 4(b) of the 1987 Act requires employment to be the main contributing factor to the contraction of a disease or the aggravation, etc. of a disease.

Note: For disease injuries sustained by exempt workers, to be compensable, the employment must have been a substantial contributing factor. See Insurer guidance GN 2.2 Injury for requirements of section 9A of the 1987 Act.

Relevant case law

Disease injury

A ‘disease injury’ consists of either the contraction of a disease or the aggravation, acceleration, exacerbation or deterioration of a disease, in the course of employment.

The term ‘disease’ is not defined in the 1987 Act or the 1998 Act. As interpreted by the Courts, the term describes a pathological illness or condition that is morbid, non-transient, idiopathic or autogenous.

In the context of workers compensation, the reference to disease has an extended meaning. In law, a disease can be a ‘label’ to describe a physical condition that appears to have a particular manner of onset or behaviour.

A disease has been described in legal decisions as no more than ‘the failure of an area of the body to cope with repeated stress imposed upon it, leading to pain and loss of function.’

Relevant case law

Deemed diseases

To establish an entitlement to compensation, the disease must have been contracted in the course of employment. This is not always easy for a worker to prove.

A small number of diseases are deemed to be work-related without the worker having to prove that the disease was contracted in the course of employment. For example, an abattoir worker diagnosed with Q-fever is deemed to have contracted the disease in the course of his/her employment.

See section 19 of the 1987 Act for more on the presumptions relating to certain employment. Also, see schedules 1 and 2 to the Workers Compensation Regulation 2016 (2016 Regulation) for the list of diseases taken to be work-related and the medical tests for brucellosis, Q fever and leptospirosis.

Presumptions regarding certain cancers for firefighters

Legislative amendments in 2018 established a presumption that eligible firefighters diagnosed with any of the 12 specific cancers, who meet the corresponding minimum qualifying periods of service, contracted the cancer in the course of their employment or volunteer service as a firefighter.

The presumption applies to eligible firefighters diagnosed with any of the 12 cancers on or after 27 September 2018. A firefighter who previously had a claim denied because they were unable to prove a link between the cancer and their employment, can make a new claim with the benefit of the presumption. This applies to claims made prior to the commencement of the legislation on 7 December 2018.

Current and former firefighters, both paid and volunteer, from Fire and Rescue NSW, NSW Rural Fire Service, Office of Environment and Heritage (NSW National Parks and Wildlife Service), Forestry Corporation of NSW and Sydney Trains can access the presumption.

See section 19A and schedule 4 of the 1987 Act for further details on the presumptions relating to certain cancers for eligible firefighters.

Presumption regarding COVID-19

Legislative amendments made in May 2020 establish a presumption that workers in prescribed employment diagnosed with COVID-19 contracted the virus in the course of their employment. Supporting amendments to the 2016 Regulation commenced in July 2020.

If a worker in prescribed employment contracts COVID-19, it is presumed that the disease was contracted in the course of employment and that employment was the main contributing factor (or, for exempt workers, a substantial contributing factor).

Prescribed employment

Under section 19B(9) of the 1987 Act and clause 5D of the 2016 Regulation, prescribed employment means employment in the following:

• the retail industry (other than businesses providing only online retail),
• the health care sector, including ambulance officers and public health employees,
• disability and aged care facilities,
• educational institutions, including pre-schools, schools and tertiary institutions (other than establishments providing only online teaching services),
• police and emergency services (including fire brigades and rural fire services),
• refuges, halfway houses and homeless shelters,
• passenger transport services,
• libraries,
• courts and tribunals,
• correctional centres and detention centres,
• restaurants, clubs and hotels,
• the construction industry,
• places of public entertainment or instruction (including cinemas, museums, galleries, cultural institutions and casinos),
• the cleaning industry
• cafes
• supermarkets
• funeral homes
• childcare facilities.

The employer may rebut a presumption (and dispute liability) if they can establish that the worker did not contract COVID-19 in the course of their employment.

Specific medical tests and results are required to confirm that a worker has COVID-19 for the purpose of the legislation. These are prescribed at clause 5B and Schedule 2, Part 2 to the 2016 Regulation.

Applying the presumption

A new Standard of practice S32 Managing claims during the COVID-19 pandemic commenced from 26 June 2020.

For each claim notified for COVID-19, the insurer is to ascertain whether the worker is in 'prescribed employment' as outlined above and determine whether the presumption applies. The insurer is to also confirm with the worker what is required to establish they have contracted COVID-19.

If further information is required to determine whether the presumption applies, or where the presumption doesn't apply but where there is high risk of exposure, the insurer is to explain to the worker and employer what further information is required to determine liability, and provisionally accept liability and commence provisional payments without delay.

Note: If the insurer has a reasonable excuse for not commencing provisional weekly payments in accordance with Part 2.1 of the Workers Compensation Guidelines, this is to be clearly documented on the claim file.

Aggravation, acceleration, exacerbation or deterioration of any disease

In the case of aggravation, acceleration, exacerbation or deterioration of a disease, the aggravation, etc, will be the pathology (change) element and the injurious incident will be how the employment was the main contributing factor to it.

The disease itself need not be work-related but the employment has to be the main contributing factor to the aggravation etc of the disease.

In some claims, the worker may allege that employment has aggravated a pre-existing disease. The pre-existing disease may have many factors contributing to its pathology. Careful consideration should be given to the individual facts and expert medical evidence.

What do the terms aggravation, acceleration, exacerbation or deterioration mean?

The words have different nuances of meaning and each may fit one set of facts better than another. However, it is also clear that their meanings are not exclusive of each other - there can be overlap.

Relevant case law