First death benefit claim for contracting COVID-19 while working

The Personal Injury Commission has now determined the first death benefit claim arising due to a worker contracting COVID-19 in the course of their employment.

In Sara v G & S Sara Pty Ltd [2021] NSWPIC 286 the applicant made a claim for compensation after her husband passed away due to contracting the COVID-19 virus whilst on a work trip in New York. The respondent, G & S Sara Pty Ltd, was one of a group of companies in the Stoneglass Group that provided dental technician products and services across the healthcare sector in Australia and the United States, and the deceased worker was a director of each of the entities in the Stoneglass Group.

The Commission was required to determine, primarily, whether the worker was engaged in employment with the respondent when he contracted COVID-19.

Ultimately, Principal Member Harris determined that the worker was engaged in employment with the respondent when he contracted the COVID-19 virus within the meaning of section 19B of the Workers Compensation Act 1987 (NSW) and passed away. The applicant was consequently successful in obtaining compensation benefits, including the lump sum death benefit, under the provisions of the 1987 Act.

Facts

The worker, Mr Georges Sara, contracted COVID-19 whilst on a work trip to New York in July 2020. The worker left his home on the Northern Beaches on 15 July 2020 and travelled to Sydney Airport and then to New York via San Francisco. It was generally accepted the worker contracted the virus between 15 and 18 July 2020.

Upon arriving in New York, the worker met with a number of colleagues in various locations. The worker was noted to dislike the use of face masks. The worker began showing signs of having been infected with COVID-19 by 18 July 2020. On 19 July 2020 the worker complained of a cough combined with fatigue. His condition deteriorated over the following days. The worker did not leave his hotel until he was transported by an ambulance on the morning of 23 July 2020.

On 23 July 2020 the worker was admitted to hospital for treatment for his COVID-19 symptoms. During the period of hospitalisation, he suffered several heart attacks and strokes. He died on 21 November 2020 due to acute respiratory distress because of complications from COVID-19.

Findings

The Commission determined on the evidence that the worker was undertaking work in his role as an employee of the respondent at the relevant time.

An infectious disease specialist was qualified by the applicant, who gave evidence that the worker likely acquired COVID-19 whilst travelling to New York or soon after his arrival in New York. His evidence was accepted by Principal Member Harris, who found that the worker first developed COVID-19 symptoms on 18 July 2020 when he complained of fatigue.
 
Principal Member Harris, citing Caswell v Powell Duffryn Associated Collieries Ltd,[1] drew an inference as to the timing of his contraction of COVID-19. Due to the fact the worker had travelled from Sydney through San Francisco before arriving in New York, it was reasonable to infer that he would have been in close contact to a large number of people throughout his journey.
 
It was also established that the worker was averse to wearing a mask, even in circumstances where he was in a country where there was a much higher risk of exposure to COVID-19 at the time. Principal Member Harris noted that common sense would suggest that wearing a mask reduces the spread of airborne diseases such as COVID-19.
 
Ultimately, Principal Member Harris was satisfied that the worker had contracted COVID-19 during the period of travel from boarding his flight at Sydney Airport until his arrival at his hotel in New York.
 
Considering the medical evidence that the COVID-19 virus caused profound respiratory failure, it was accepted that this amounted to an identifiable pathological change and constituted a “personal injury” within the meaning of section 4(a) of the 1987 Act.

In relation to the issue of whether the disease injury was sustained “in the course of his employment” it was determined that the period of travel to the United States was within the course of the worker’s employment with the respondent. The Commission’s reasoning was that the work trip was induced and encouraged by the respondent, and ultimately served to benefit the respondent.

Having found an injury with the meaning of section 4(a) of the 1987 Act, the respondent conceded that the presumptions under section 19B of the 1987 Act were established. This issue was therefore not determined by the Commission.

Discussion

This matter is the first of its kind and we anticipate similar cases will become increasingly prevalent. While the presumptions under section 19B of the 1987 Act were not considered by the Commission in detail, the case is useful in demonstrating the relevant issues arising where a worker may have contracted COVID-19 while travelling for work.

In circumstances where it is agreed the worker was performing work in prescribed employment and they contract the COVID-19 virus, then a work-related injury will be established in accordance with the presumptions under 19B, unless proven otherwise.

Furthermore, there will be an entitlement to death benefits as long as the Commission can be satisfied that the applicant is a dependent in accordance with section 25 of the 1987 Act and that the worker in question died due to COVID-19.

Post by Hicksons Partner, Najeh Marhaba, and Solicitor, Lloyd Carman.


[1] [1940] AC 152.

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