Which begs the questions …
What is an injury, and what is a workplace?
These may seem like simplistic issues, however, particularly in a post-pandemic world where work-from-home has become increasingly more normal, there are significant ramifications to these questions. But first, a little history.
Where it all began – Workers Compensation 101
First attempts at coverage date back to British law in the late 1800s, but coverage was not compulsory and, in any event, required that the employer was proven to be at fault. Not very good, but at least it was a start. Soon after Federation in Australia, NSW led the way with compulsory coverage, and by 1926 Workmen’s Compensation was active. Thankfully, challenges in the 1970s saw coverage extended to all employees, irrespective of gender, and Workers Compensation entered our lexicon.
Government agencies cover specific Government employees. Elsewhere Workcover became widely known but that has now been replaced by the State Insurance Regulatory Authority (SIRA), which oversees coverage, with day-to-day policy handling delegated to the usual array of insurers – QBE, GIO, Allianz etc.
If it walks like a duck and talks like a duck …
In our experience, ducks are relatively easy to identify – workplace injuries, less so.
A broken wrist, sprained ankle, or back injury are fairly straightforward, however, some injuries develop and worsen over time. Sometimes an injury may be physical in nature, and particularly in our increasingly complex and potentially stressful workplaces, injuries may also be psychological. Both types are treated without prejudice as injuries in the eyes of the law.
The potential difficulty with injuries (of either persuasion) that develop over time, is that it can be hard to pinpoint a start time, and often an injury has developed significantly before an employee finally decides to report it. In NSW, time limits do apply, so quality legal advice is best obtained sooner rather than later.
A common misconception we have seen is an employee who develops an increasingly bad back but will dismiss the severity of the circumstances by stating that they have always had a few minor back issues. Each circumstance needs to be properly analysed, but in general terms, while the initial injury is not covered, aggravation of it most probably will be. This presumes that an employee has been totally transparent in disclosure during initial employment.
For the above reasons it is vital to keep an ongoing record of medical assessments and treatments, X-rays, scans, times when work attendance was affected and so on. Successful compensation claims are heavily reliant on reliable records.
Workplace – what does that mean?
It is probably better to think of workplace as being a causal effect, rather than a specific geographical location, although physical workplaces are easily identified in many cases.
For example, if an employee is engaged in a work-from-home situation, then workplace really relates to activities directly related to performing their work, rather than a specific address.
Travelling to and from work is not covered, and yet, if an employee is required to perform a work-related task during their commute – to collect a parcel or deliver documents – then some element of the travel may well be covered.
Essentially, an employee must establish that their injury occurred in the course of their employment, and that the nature of the employment was a significant causal factor.
As is usual in law, the obvious examples are relatively easy to identify, it is the more convoluted cases on the fringe that require expert advice.