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Stuart Barnett is our mining industry’s leading personal injury lawyer. This month he has some important advice as to whether you can claim workers compensation if you contract Covid at work in the Coal Mines.

A worker who contracts Covid in the course of their employment is potentially able to claim workers compensation for time off work and medical expenses arising out of the disease. Broadly speaking, you need to establish that you contracted the injury/disease in the course of your employment, that you suffered an injury and a resulting incapacity for work, and/or incurred medical expenses.

Dealing firstly with establishing that you have suffered an injury. An injury is defined as a personal injury and includes a disease. A positive PCR test will provide you with written evidence and that would likely be sufficient evidence. A positive RAT test would not provide written evidence so I would suggest keeping the test and photographing it. In both cases a consultation with your GP would also allow you to obtain a SIRA (Workcover) certificate.

In so far as incapacity is concerned, upon receiving a positive test you will likely obtain a medical certificate which certifies you unfit for work if you are particularly unwell or certify you fit to work but in isolation.

The NSW Health Department rules and your employers Covid policy will also dictate what, if any work, you can do and from where. If the certificate says you can work but in isolation it is important to ask your employer whether they can accommodate that, for example working from home. I suspect that most employers in the industry would direct you to stay at home for the Government mandated period once you return a positive test. 

The onus is on the worker to establish that they contracted Covid in the course of their employment. The standard of proof is “on the balance of probabilities” or to put it another way, “more likely than not”. Because of the requirements of employers to inform potential contacts of positive cases at work I suspect this might not be as difficult as it sounds but basically your history and movements around the time you contracted the disease will be important.

Reporting, claiming and the entitlements for workers compensation are exactly the same as for any other type of injury or claim. Follow your employer’s injury reporting protocol by telephoning or speaking to the relevant officer of the company as soon as you become aware of the positive test and complete and injury report form and claim for compensation. 

This is general advice and because your individual circumstances will vary I recommend seeking out specific advice for your needs.

Stuart Barnett

Slater & Gordon Lawyers

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