Legal Directions

The current COVID-19 pandemic has resulted in a significant portion of the broader workforce working from home. Questions arise as to whether an injury at home during the usual work day gives rise to an entitlement to compensation.

The touchstone for an entitlement to statutory compensation is that a worker suffers an injury as defined by section 4 of the Workers Compensation Act 1987 (NSW), namely, a personal injury arising out of or in the course of employment’ [section 4(a) of the Act] or a disease to which the employment was the ‘main contributing factor’ [section 4(b) of the Act].

During the current COVID-19 pandemic, which has been punctuated by the emerging necessity for the broader workforce to work from home, the ‘place of employment’ will be construed to include the worker’s home. The course of employment will extend to the reasonable and ordinary use of the worker’s home while remaining there.

However, in the case of a section 4(a) personal injury, the entitlement to compensation is subject to satisfaction of section 9A which requires that employment be a substantial contributing factor to the injury. It is clear that both section 4 and section 9A require independent satisfaction. The fact of the injury arising out of or in the course of employment is relevant but not determinative of itself. The connection between the injury and employment must be real and of substance.

Not all injuries sustained during activities engaged in while working at home will be compensable. However, we can foresee situations (such as, for example, a worker who sustains a burn while making lunch) where an ordinary home activity could fall within the contemplation of the employment because the worker was working from home. If, on the other hand, a worker decided to take a break from performing his/her employment duties and was injured while fixing a broken tile on the roof of the home, it is doubtful if such activity would arise out of or in the course of employment nor would have any substantial connection with the employment.

It is also important to note that in the case of a disease injury, the requirement to independently satisfy section 9A will not arise, as the employment concerned must be the main contributing factor to either the development of or the aggravation, acceleration, exacerbation or deterioration of the disease.

While each case must be assessed on its specific circumstances and in accordance with strict legal principles, the fact a worker may suffer an injury other than on an employer’s premises is not, without more, a disentitling factor, providing the injury meets the definition within section 4 and in the case of a personal injury under section 4(a), the additional requirements of section 9A.

Further information / assistance regarding the issues raised in this article is available from the author, Paul Flocco, Partner or your usual contact at Moray & Agnew.

The above content is commentary rather than legal advice and was prepared on the basis of applicable legislation, government programs and initiatives that were in place as of the date of publication. Given the ongoing evolution of both the COVID-19 pandemic and frequent consequential changes to the various laws and programs within all Australian states and territories, readers should seek legal advice on the current situation as applicable to their specific circumstances before taking any action in relation to the above.

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