Eligibility

Definition of ‘injury’

An ‘injury’ means a personal injury arising out of or in the course of employment and includes a disease injury (see ‘Injury’).

A disease injury is a disease contracted by a worker in the course of employment, where the employment was the main contributing factor to the disease.

A disease injury also includes the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was the main contributing factor for the aggravation, acceleration, exacerbation or deterioration.

Disease injuries do not include (except in the case of a worker employed in or around a mine):

• a dust disease (as defined by the Workers’ Compensation (Dust Diseases) Act 1942), or
• the aggravation, acceleration, exacerbation or deterioration of a dust disease.

Was work the ‘main contributing factor’?

To determine whether work (or a particular aspect of work) was the ‘main contributing factor’ in a disease injury, the insurer should carefully consider the individual facts and expert medical evidence.

Aggravation, acceleration, exacerbation or deterioration of a disease

Aggravation, etc of a disease injury

The definition of injury includes the aggravation, acceleration, exacerbation or deterioration of a disease but only if the employment was the main contributing factor to the aggravation, etc of the disease.

Employment must be the main contributing factor to the aggravation, etc of the disease - not necessarily to the underlying condition. The disease itself may have other factors contributing to its pathology. For example, a person who lifts a heavy weight may suffer an injury by way of an aggravation of an underlying degenerative disc disease.

Further information can be found in Insurer guidance GN 2.2 Injury and GN 2.2A Disease injury.

Disease of gradual onset

Compensation may be payable for a disease of gradual onset if the disease is caused by the worker’s employment or related to the type of employment.

Date of injury for diseases of gradual onset

Diseases of gradual onset can happen over long periods of time with multiple employers. Where a disease is contracted by gradual process, the date of injury is deemed to have happened at:

• the time of the worker’s death or incapacity, or
• if death or incapacity has not resulted from the injury, at the time the worker makes a claim for compensation with respect to the injury.

When the date of injury is deemed to be the time the worker made the claim, liability will fall to the employer who last engaged the worker in work to which the nature of the disease was due. Although the last employer will be solely liable to pay compensation to the worker, they are able to seek contribution from other employers who engaged the worker in work which caused or aggravated the disease during the 12 months preceding the deemed date of injury.

Diseases deemed to be work-related

Certain diseases are deemed to be work-related without the worker having to prove that the disease was contracted in the course of employment.

Schedule 1 to the Workers Compensation Regulation 2016 describes the diseases taken to be work-related. They include:

• poisoning by lead, mercury, phosphorous, arsenic, benzene
• anthrax infection
• primary epitheliomatous cancer of the skin
• brucellosis, leptospirosis and Q fever
• pathological manifestations due to exposure to radioactive substances.

Presumptions regarding certain cancers for firefighters

Since 2018, firefighters diagnosed with specific types of cancers, and who meet the eligibility criteria, are automatically presumed to have developed the cancer in the course of their employment or volunteer service as a firefighter.

Eligible firefighters diagnosed on or after 27 September 2018 with any of 12 specified primary cancers, who meet the corresponding qualifying periods of employment or service, are entitled to the presumption that the cancer is work-related. There is no time limit on when a diagnosis must be made after stopping work or volunteer service as a firefighter, for the presumption to apply.

Eligible firefighters diagnosed before 27 September 2018 may be able to access the presumption retrospectively when specific circumstances are met.

An employer can dispute the presumption by proving that the claimant’s cancer is not related to their work or service as a firefighter.

The presumption applies to paid, volunteer, current and former firefighters from the following organisations:

• Fire and Rescue NSW
• NSW Rural Fire Service
• Office of Environment and Heritage (NSW National Parks and Wildlife Service)
• Forestry Corporation of NSW
• Sydney Trains.

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

The presumptive legislation does not create any new workers compensation benefits and entitlements for eligible firefighters. It only makes it quicker and easier for eligible firefighters to claim and access existing workers compensation entitlements.

Presumptions regarding COVID-19 (Coronavirus)

Legislative changes in 2020 made by the COVID-19 Legislation Amendment (Emergency Measures – Miscellaneous) Act 2020 enable certain workers diagnosed with COVID-19 to automatically be presumed to have contracted COVID-19 in the course of their employment.

The law change means that:

• workers that work in the list of prescribed employment are entitled to the presumption that COVID-19 is work-related
• eligible workers who contract COVID-19 are presumed to be incapable of work for 21 days from the date of injury, unless a doctor certifies they still have the virus
• an employer can dispute the presumption by proving that the claimant’s contraction of COVID-19 is not related to their work or employment.

As with deemed diseases and presumptions for firefighters above, the new changes are designed to make it quicker and easier for workers to claim and access workers compensation entitlements.

Further information on presumptions for COVID-19 can be found in Insurer guidance GN 2.2A Disease injury.