GN 2.2A Disease injury

Published: 24 July 2020

Last edited: 24 July 2020

- GN 2.2A Disease injury

Application: This guidance applies in part to exempt workers.

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.

Dust diseases, as defined, have their own special compensation arrangements through the Workers Compensation (Dust Diseases) Act 1942 (1942 Act) and are not dealt with under the principal Acts.

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

In September 2003, the worker was forcefully hit on the left side of her upper chest by a ball in the course of her employment as a teacher. She felt immediate pain in her chest, neck and left shoulder. The force of the blow knocked her off her feet and she was taken by ambulance to hospital.

The Workers Compensation Commission Presidential appeal concerned whether the insurer disputed that the worker received an injury to her left shoulder in the incident that occurred at work in 2003.

The Deputy President held that:

employment only has to be a substantial contributing factor to the injury, not the consequences of the injury .. Once a worker has received an injury to which his or her employment was a substantial contributing factor, s9A has no more work to do.

[at para 52]

… employment only has to be a substantial contributing factor to the injury, not the consequences of the injury, such as the symptoms that have resulted from it. Once a worker has received an injury to which employment was a substantial contributing factor, employment does not cease to be a substantial contributing factor to the injury just because the worker has recovered from the effects of the injury.

[at para 58]

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.

Most diseases are scientifically recognised. However, 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

This matter, heard in the High Court of AUstralia, involved a worker employed by the railways for over 40 years as a boilermaker. He suffered boilermaker’s disease (hearing loss). In his decision, Windeyer, J. held:

The word "disease" seems to me apt to describe any abnormal physical or mental condition that is not purely transient, certainly one that, like boilermaker's deafness, is commonly called an occupational disease. Such a disease may be the result of infection (e.g. anthrax or blood poisoning), of constant exposure to some irritant substance (e.g. dermatitis), of the absorption of a substance poisonous by its cumulative effect (e.g. lead poisoning), of the long-continued inhalation of dust injurious to the lungs or of exposure to some other factor which is a circumstance of the employment. I cannot see that, for the purposes of the New South Wales Act, any abnormal physical condition well recognized in medical science that, like beat hand or beat knee, is the result of repeated pressure or, like boilermaker's disease, of repeated concussion by noise is any the less a disease than is an abnormal physical condition caused by a germ or by the repeated absorption through the nose or the skin of some deleterious substance.

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 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.

The presumption does not apply to volunteers in a NSW Fire and Rescue Community Fire Unit.

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 (Coronavirus)

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 on-line 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 on-line 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.

S32. Managing claims during the COVID-19 pandemic

Principle

Insurers will be flexible and adaptable during the COVID-19 pandemic and ensure that claims are managed with empathy and transparency, making liability decisions and paying entitlements without delay.

See standard

Incapable of work

Under section 19B(5) of the 1987 Act, workers who are presumed to have contracted COVID-19 are also presumed to be 'incapable of work' for a period of 21 days after the date of injury. If a medial practitioner certifies that the worker still has COVID-19 at day 21, the period of presumed incapability extends until the date specified on the worker's certificate of capacity.

For the purposes of determining a worker's entitlement to weekly payments, 'incapable of work' is taken to mean that the worker has a total incapacity for work and no current work capacity. Weekly payments are therefore payable.

Under clause 5C of the 2016 Regulation, if the worker is capable of work (the 'incapable of work' presumption is rebutted), but what the worker earns while self-isolating is less than what they had the capacity to earn before the injury, the worker is taken to have a partial incapacity for work and a current work capacity. The weekly payment entitlement for these workers can only consider the worker's actual gross earnings. That is, there is no consideration of what the worker would be able to earn in suitable employment.

Scenarios

The following table provides a quick reference guide about how to determine entitlement to weekly payments in the first entitlement period for workers to whom section 19B applies.

Description	Able to work	Post injury earnings	Work capacity	Weekly payments
The worker has nil or mild symptoms and can perform work. The employer can provide suitable work with no change to earnings while self-isolating.	✔	No change	The worker is capable of work and the presumption in s19B(5) is rebutted. The worker does not have a total or partial incapacity for work.	✘
The worker presents with nil or mild symptoms and can perform work. The employer can provide some suitable work however earnings are reduced (eg less hours worked).	✔	Earning less	The worker is capable of work and the presumption in s19B(5) is rebutted. However, the worker has a partial incapacity and a current work capacity as provided by cl5C(5) of the Regulation.	✔
The worker presents with nil or mild symptoms and can perform work. Due to the type of employment and requirement to self-isolate, no suitable work is available.	✔	No earnings	The worker is capable of work and the presumption in s19B(5) is rebutted. However, the worker has a partial incapacity and a current work capacity as provided by cl5C(5) of the Regulation.	✔
The worker presents as being unwell and due to COVID-19 symptoms is not able to work.	✘	No earnings	The worker is incapable of work and the presumption in s19B(5) applies. The worker has a total incapacity and no current work capacity.	✔

Example one

Janice is a worker in the retail industry. Her pre-injury duties included both on-site inspections and office work.

She contracted COVID-19 on 24 July 2020. It is presumed under section 19B(1) of the 1987 Act that Janice contracted the disease in the course of her employment and her employment is taken to be the main contributing factor to contracting the disease.

Janice displayed very minor symptoms of COVID-19 and was required to self-isolate, however remained able to perform work.

Janice continued to perform some duties (the office work) however due to her isolation period she did not perform on-site inspections. As a result, during her isolation period she earned less than she had the capacity to earn before the injury. Under clause 5C(5) of the 2016 Regulation, she is taken to be partially incapacitated for work and to have current work capacity during the isolation period. She would therefore have an entitlement to weekly payments under the 1987 Act.

Example two

Andrew, a cleaner, contracted COVID-19 on 24 July 2020. It is presumed that Andrew contracted the disease in the course of his employment. He displays no symptoms and remains able to perform work. He is, however, required to self-isolate.

Due to the nature of his work as a cleaner, he is unable to work during the isolation period, and therefore has no earnings from paid employment. Under clause 5C(5) of the 2016 Regulation, he is taken to be partially incapacitated and have current work capacity. He therefore has an entitlement to weekly payments under the 1987 Act.

Example three

Jared is employed in construction. He contracted COVID-19 on 24 July 2020 and it is presumed that Jared contracted the disease in the course of his employment. He is displaying COVID-19 symptoms including a high fever, sore throat and cough. He is also experiencing shortness of breath and difficulty breathing. Jared is incapable of work. He has a total incapacity for work and no current work capacity, and therefore Jared is entitled to weekly payments.

Jared attends a consultation with his nominated treating doctor on 14 August 2020 via telehealth (being 21 days after the date of injury). Due to ongoing symptoms, he is issued with a certificate of capacity which certifies that he still has COVID-19 and that he has an incapacity for work until 28 August 2020. He continues to be incapable of work until 28 August 2020 and is entitled to weekly payments under the 1987 Act.

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

This matter concerned the deterioration of a mental illness – schizophrenia. The High Court of Australia considered the meaning of the words ‘an aggravation, acceleration, exacerbation or deterioration’ of the disease:

The words have somewhat differing meanings: one may be more apt than another to describe the circumstances of a particular case: but their several meanings are not exclusive of one another. The question that each poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient. To say that a man's sickness is worse or has deteriorated means in ordinary parlance, oddly enough, the same thing as saying that his health has deteriorated. The word “acceleration” probably presupposes a progressive disease, one that, running its ordinary course, increases in gravity until a climax such as death or total invalidism is reached - its progress to this end result not being ordinarily susceptible of being permanently arrested, but susceptible of being hastened by external stimuli... but in the present case the words "aggravation" or "exacerbation" are more apt than "acceleration" to describe the matters on which the case for the applicant depends.

[at para 9]

GN 2.2 Injury

GN 2.3 Managing claims for workers with a psychological injury

Related: Legislation and regulations

Related: Guidelines and standards

Contact SIRA

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GN 2.2 Injury

GN 2.3 Managing claims for workers with a psychological injury

Eligibility / compensable injuries