COVID-19 - FREQUENTLY ASKED QUESTIONS

Any worker who believes they have an illness or injury from the workplace should immediately notify their employer and, if as a consequence of the illness or injury the suffer a loss (income, treatment expenses) is entitled to make a claim. A virus (like COVID-19) may be considered a disease under the Workers Compensation Act 1987. To receive workers compensation for a disease, a claimant would need to establish that the virus was a  “disease” contracted in the course of employment, and that employment was the main contributing factor to the contracting of the disease.

Changes to the Workers Compensation Act 1987 mean that for workers in certain employment who contract COVID-19, it will be presumed that the worker contracted COVID-19 in the workplace. The types of employment include:

• 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
• the cleaning industry.

Workers must have worked in the employment in the 21 days prior to their diagnosis with COVID-19. The presumption will not apply if it can be proved the worker contracted COVID-19 in another way.

The employer should notify their workers compensation insurer within 48 hours. If the employer’s insurer does not accept the virus as a compensable “injury” or “disease,” affected workers should access their leave entitlements in the usual way and may be able to claim compensation later.

Each compensation claim would need to be considered on its merits and in accordance with the legislation. For viruses, an insurer may consider issues including (but not limited to):

• Work related travel to an area with a known viral outbreak
• Work related interactions with people who have contracted the virus

Once an insurer is notified of an illness, it has seven days to respond to the claimant. If the insurer does not respond, or you do not understand the response, you should contact IRO.

Injured workers are required to produce Certificates of Capacity for any period they are unable to fulfil their usual duties or in which they suffer an income loss due to injury or illness.

During a pandemic situation it may be difficult to see a GP on a specific day. However, the legislation contains special provisions that may assist you and ensure you continue to receive weekly payments. Certificates can be issued for more than 28 days in special circumstances. Similarly, an insurer could accept a Certificate that is backdated up to 90 days if you are having trouble getting to see a doctor.

Alternatively, you may now obtain a Certificate of Capacity from your treating physiotherapist or psychologist. The Workers Compensation Amendment (COVID-19) Regulation 2020 allows SIRA-approved treating physiotherapists and treating psychologists to issue second or subsequent certificates of capacity by completing the Certificate of capacity – treating physiotherapist or psychologist form.

If you cannot obtain a Certificate of Capacity as soon as your previous Certificate expires for the above reasons, IRO strongly suggests you contact your insurer and discuss this with them.

The legislation requires injured workers to attend medical appointments at certain periods of time. It could be to obtain a Certificate of Capacity (see above) or it could be a medical appointment at the request of the insurer.

Certificate of Capacity

If you do not obtain a Certificate of Capacity, you may not receive weekly payments. The legislation does provide some flexibility to ensure you can still receive weekly payments in situations where you cannot see your Doctor straight away or as regularly as you are used to. However, you must discuss this with your insurer first.

From 20 March 2020, the State Insurance Regulatory Authority has expanded the scope for Telehealth consultations.

Telehealth consultations will include any electronic communication to support the delivery of the treatment service.

Telehealth services require pre-approval from the insurer and all parties must consent to this (the worker, the practitioner and the insurer).

Alternatively, you may now obtain a Certificate of Capacity from your treating physiotherapist or psychologist. The Workers Compensation Amendment (COVID-19) Regulation 2020 allows SIRA-approved treating physiotherapists and treating psychologists to issue second or subsequent certificates of capacity by completing the Certificate of capacity – treating physiotherapist or psychologist form.

Medical Examinations at the Request of the Insurer

The legislation allows insurers to request an injured worker attend a medical examination organised by the insurer. If an injured worker unreasonably refuses to attend this medical examination, their weekly payments may be suspended. What constitutes an unreasonable refusal will depend on the circumstances. An insurer may consider issues including (but not limited to):

• Whether the venue for the examination is an area with a known viral outbreak.
• Advice from NSW Health about people travelling to certain places, or whether certain types of people (elderly, the young, immune-compromised) should restrict their travel.

For any health advice, IRO recommends you check with the NSW Health website.

If you have any queries about your benefits being suspended for this reason, contact IRO.

The legislation requires injured workers to make reasonable efforts to return to work. If the insurer does not believe a worker is making reasonable efforts, it may take steps to suspend a worker’s weekly payments. What constitutes an unreasonable refusal to return to work will depend on the circumstances. An insurer may consider issues including (but not limited to):

• Whether the workplace is an area with a known viral outbreak.
• Advice from NSW Health about people travelling to certain places, or whether certain types of people (elderly, the young, immune-compromised) should restrict their travel.

For any health advice, WIRO recommends you check with the NSW Health website.

If you have any queries about your benefits being suspended for this reason, contact IRO.

Injured workers are entitled to weekly payments of compensation if total or partial incapacity for work results from a work-related injury. The amount of weekly payments one is entitled to depends on how many hours and injured worker is working that week, and how much their capacity has diminished as a result of the injury.

If a worker loses shifts because of COVID-19, they may not be entitled to extra weekly payments of workers compensation unless there is a change in their capacity for work. IRO reminds injured workers to continue sending Certificates of Capacity to the insurer and they will determine your entitlements to weekly payments in accordance with the legislation. If you have any queries about the calculation of weekly payments, please contact your insurer. If your issue is still not resolved, please contact IRO.

Injured workers are entitled to weekly payments of compensation if total or partial incapacity for work results from a work-related injury. If you have been asked to self-isolate, but you have not personally contracted COVID-19 in the workplace, then you are not entitled to additional weekly payments of workers compensation for the period in which you are self-isolating. We recommend you discuss accessing leave and other entitlements with your employer.

Workers who are entitled to receive workers compensation weekly payments will continue to receive payments.

If you wish to access any financial support available from the Commonwealth or NSW Government you will need to discuss your circumstances with the agency managing the support package.

To ensure that they understand your circumstances, you will need to inform them about your entitlement for Workers Compensation weekly.

If you are accessing JobKeeper, the State Insurance Regulatory Authority (SIRA) has communicated a preliminary policy position regarding the impact of JobKeeper payments on the calculation of a worker’s pre- and post-injury earnings. This is set out the draft Standard of Practice, on which feedback is currently being sought.

The draft Standard provides that:

• Any JobKeeper payment made to a worker prior to the worker’s injury will be considered earnings for the purposes of determining the worker’s average weekly earnings prior to injury.
• Any JobKeeper payment made to a worker who has current work capacity will be considered earnings for the purposes of determining the weekly compensation payment to which the worker is entitled.

SIRA will confirm and communicate a final position on the impact of JobKeeper on weekly payments of compensation once consultation on the Standard of Practice is complete.

As you are having a telehealth consultation, the “injured person’s consent” section of your Certificate of Capacity does not need to be filled in. Your doctor may or may not send this to you to complete.

Your doctor will be asking you for permission to share your Certificate of Capacity with your insurer. They could do this verbally or by email. This is to comply with privacy laws.

If your claim for workers compensation has been declined the insurer must provide you with the reasons in writing. Challenging a decision of an insurer is generally complex and time consuming. It may involve gathering information and medical evidence and seeking a review of the decision from the insurer itself. It may also involve commencing proceedings in the Workers Compensation Commission.

WIRO recommends you seek legal advice if your claim has been disputed. IRO administers the Independent Legal Assistance and Review Service (ILARS) by which you can engage an Approved Lawyer to advise you and assist you with your disputed claim at no cost to you. The list of Approved Lawyers is available here.

IRO’s Solutions Team may be able to assist you before you seek any legal assistance by, for example, engaging with the insurer and seeking information or clarification from the insurer about the decision. If you would like assistance from the Solutions Team please submit your enquiry here.

You should talk to the insurer about your concerns. You can also talk to the medical examiner about what protocols they have in place to protect you.

Weekly payments may be suspended if a worker refuses to attend an examination organised by the insurer.

You can always contact the Workers Compensation Independent Review Officer (WIRO) for assistance through their online complaints form or by email: complaints@iro.nsw.gov.au.

If you are unable to contact IRO online, you can call IRO on 13 94 76.  For further information please see IRO’s website.

Your worker’s weekly compensation payment is related to their average weekly earnings prior to their injury, and the difference between this and the amount they are earning (or have the capacity to earn) while they are recovering from their injury.

The State Insurance Regulatory Authority (SIRA) has communicated a preliminary policy position regarding the impact of JobKeeper payments on the calculation of a worker’s pre- and post-injury earnings. This is set out the draft Standard of Practice, on which feedback is currently being sought.

The draft Standard provides that:

• Any JobKeeper payment made to a worker prior to the worker’s injury will be considered earnings for the purposes of determining the worker’s average weekly earnings prior to injury.
• Any JobKeeper payment made to a worker who has current work capacity will be considered earnings for the purposes of determining the weekly compensation payment to which the worker is entitled.

SIRA will confirm and communicate a final position on the impact of JobKeeper on weekly payments of compensation once consultation on the Standard of Practice is complete.

If you have been diagnosed with COVID-19 and your employment was the main contributor to you getting the disease, you should notify your employer as soon as you become aware.

Your employer will notify the insurer within 48 hours of receiving notification of a workplace injury.

The insurer must commence weekly payments of compensation within 7 days of notification unless they have a reasonable excuse.

If you have not been notified of a decision within 7 days, you can contact the Workers Compensation Review Officer (IRO) through their online complaints form or by email: complaints@iro.nsw.gov.au.

If you are unable to contact IRO online, you can call IRO on 13 94 76.  For further information please see IRO’s website.

The Workers Compensation Amendment (COVID-19) Regulation 2020 allows SIRA-approved treating physiotherapists and treating psychologists to issue second or subsequent certificates of capacity using the Certificate of capacity/certificate of fitness – treating physiotherapist or psychologist form.

The amendments do not change the requirement that the first Certificate of Capacity is to be issued by a medical practitioner.

By broadening the range of health practitioners that can certify capacity for work, workers will have greater accessibility to obtain certificates without needing to visit their nominated treating doctor. This will enable the insurer to calculate the worker’s entitlement to weekly payments in a timely manner and avoid interruption to the worker’s receipt of weekly payments during the COVID-19 pandemic.

These changes are time limited and will be in place for 12 months unless repealed earlier.

The treating physiotherapist or psychologist can only certify injuries within their area of expertise, must be SIRA-approved and use the form approved by the Authority. SIRA has published a Certificate of capacity/Certificate of fitness - treating physiotherapist or psychologist for this purpose.

Examinations are able to be undertaken by video (not telephone) in limited and special circumstances. As per changes to the Workers compensation guidelines (17 April 2020), the COVID-19 pandemic is considered a special circumstance. SIRA has recently issued guidance on conducting independent medical examinations, they can be found here.

You should talk to your insurer to see if your examination is able to take place via video. Factors that will determine this include the purpose of the examination and the nature of your injury.

Some people may find it difficult to attend their treating medical practitioner in person. Your doctor can issue a certificate of fitness following a telehealth consultation if the doctor thinks it is appropriate. You should discuss this with your doctor.

You could also discuss whether your doctor is prepared to issue a certificate of fitness that would cover a period of up to 90 days.  The doctor will need to consider whether they expect a change in your fitness over that time. Your doctor could outline any expected changes in your fitness over the time covered, in your certificate.

Alternatively, you may obtain a certificate of fitness from your treating physiotherapist or psychologist. The Workers Compensation Amendment (COVID-19) Regulation 2020 allows SIRA-approved treating physiotherapists and treating psychologists to issue second or subsequent certificates of fitness in certain circumstances by completing the Certificate of Fitness – treating physiotherapist or psychologist form.

If you cannot obtain a new certificate of fitness before your current Certificate expires, we strongly suggest you contact your insurer and discuss this with them.

You must produce certificates of fitness for any period you are entitled to income support.

If you do not want to attend the doctor in person, please contact them to see if the Certificate of Fitness can be obtained over a telehealth consultation. If your doctor is unable to do this, contact your insurer immediately to discuss your concerns.

If your doctor does issue a certificate of fitness following a telehealth consultation, the “injured person’s consent” section of your certificate of fitness does not need to be signed.  Your doctor may or may not send this to you to complete.

However, your doctor should ask you for permission to share your certificate of fitness with your insurer. They could do this verbally or by email. This is to comply with privacy laws.

You are encouraged to contact your insurer to express your concerns.

You can also to speak with your employer to see what arrangements they have in place to protect their employees and keep the workplace safe from and COVID-19.

The Commission has taken a series of measures to deal with medical assessments during the pandemic. To discuss the options for your assessment, please contact the Commission or speak with your solicitor. The Commission’s contact details are as follows:

• 1800 742 679
• help@pi.nsw.gov.au
• PIC Website

You should talk to the insurer about your concerns. You can also talk to the medical examiner about what protocols they have in place to protect you.

Weekly payments may be suspended if a worker refuses to attend an examination organised by the insurer.

You can always contact the Independent Review Office (IRO) for assistance through their online complaints form or by email: complaints@iro.nsw.gov.au

If you are unable to contact the IRO online, you can call the IRO on 13 94 76.  For further information please see the IRO’s website.

You should contact your legal representative to see if another method of assessment, such as tele-health may be appropriate. If not, you could discuss postponing the appointment until a later date.

Your legal representative would be the best person to advise you as to the urgency of this assessment and what it may mean regarding your claim, if you do not attend or it is postponed until a later date.

If you wish to access any financial support available from the Australian or NSW Government you will need to discuss your circumstances with the agency managing the support package, for example, Service NSW or Services Australia.

To ensure that those agencies understand your circumstances, you will need to inform them about your entitlement for workers compensation weekly payments.

If you do obtain any of these supports, you should advise your workers compensation insurer.

The COVID-19 Disaster Payment is a weekly payment available for individuals in Commonwealth-declared hotspots where restrictions lasting for more than seven days have caused reduced work hours or lost income.

COVID-19 Disaster Payments are not considered earnings for the purpose of determining your pre-injury average weekly earnings or when determining the weekly compensation payment to which you are entitled.

Information about eligibility for the COVID-19 Disaster Payment is available at http://www.servicesaustralia.gov.au

Some people may find it difficult to attend their treating medical practitioner in person. Your doctor can issue a certificate of fitness following a telehealth consultation if the doctor thinks it is appropriate. You should discuss this with your doctor.

You could also discuss whether your doctor is prepared to issue a certificate of fitness that would cover a period of up to 90 days.  The doctor will need to consider whether they expect a change in your fitness over that time. Your doctor could outline any expected changes in your fitness over the time covered, in your certificate.

Alternatively, you may obtain a certificate of fitness from your treating physiotherapist or psychologist. The Motor Accident Guidelines allow treating physiotherapists and treating psychologists to issue second or subsequent certificates of fitness in certain circumstances by completing the Certificate of Fitness – treating physiotherapist or psychologist form.

If you cannot obtain a new certificate of fitness before your current Certificate expires, we strongly suggest you contact your insurer and discuss this with them.

You must produce certificates of fitness for any period you are entitled to income support.

If you do not want to attend the doctor in person, please contact them to see if the Certificate of Fitness can be obtained over a telehealth consultation. If your doctor is unable to do this, contact your insurer immediately to discuss your concerns.

If your doctor does issue a certificate of fitness following a telehealth consultation, the “injured person’s consent” section of your certificate of fitness does not need to be signed.  Your doctor may or may not send this to you to complete.

However, your doctor should ask you for permission to share your certificate of fitness with your insurer. They could do this verbally or by email. This is to comply with privacy laws.

You are encouraged to contact your insurer to express your concerns.

You can also to speak with your employer to see what arrangements they have in place to protect their employees and keep the workplace safe from and COVID-19.

The Commission has taken a series of measures to deal with medical assessments during the pandemic. To discuss the options for your assessment, please contact the Commission or speak with your solicitor. The Commission’s contact details are as follows:

• 1800 742 679
• help@pi.nsw.gov.au
• PIC Website

You should talk to the insurer about your concerns. You can also talk to the medical examiner about what protocols they have in place to protect you.

Weekly payments may be suspended if a worker refuses to attend an examination organised by the insurer.

You can always contact the Independent Review Office (IRO) for assistance through their online complaints form or by email: complaints@iro.nsw.gov.au.

If you are unable to contact the IRO online, you can call the IRO on 13 94 76.  For further information please see the IRO’s website.

You should contact your legal representative to see if another method of assessment, such as tele-health may be appropriate. If not, you could discuss postponing the appointment until a later date.

Your legal representative would be the best person to advise you as to the urgency of this assessment and what it may mean regarding your claim, if you do not attend or it is postponed until a later date.