WorkCover claims when it’s not clear if you were ‘working’ at the time of injury

In our article “Independent contractors and WorkCover claims”, we looked the definition of a worker, for the purposes of workplace injury claims. Today’s working arrangements see people working different hours to the traditional 9 to 5 together with a significant rise in ‘remote work’ opportunities; for example, work from home. We need to look at the impact of these modern-day practices, on rights and entitlement to workers compensation.

Workplace flexibility has many perks however, it can also blur the lines between when we are “at work” and when we are “not at work”. This can make it difficult if you suffer an injury and are unsure whether WorkCover applies to you.

In order to determine whether WorkCover applies, we need to start by answering two main questions:

1. Are you a “worker” and, if so;
2. Were you “working” at the time?

We considered question 1 in our previous article. In this article we will focus on the second question.

Like with the first question, in many cases there is little dispute about whether you were working at the time of an injury. If you are in the office or on a job site and lift something heavy and hurt your back, it is clear that you are at work for the purposes of a WorkCover claim.

However, there are many other scenarios that aren’t so obvious.

Scenario #1

• You work in recruitment and you have a fixed office where you predominantly work.
• Your role involves driving around to meet clients and interview prospective candidates so it is normal for you to travel straight from home in the morning to meet clients or candidates.
• You usually check your emails and do some work from home remotely before driving to your meeting.
• On your way out the door you slip and fall, breaking your arm.

Scenario #2

• You work as a receptionist in a corporate environment in the CBD.
• On your lunch break, you and a colleague go for a walk to get a sandwich from a nearby café
• While out, you trip on the uneven footpath and roll your ankle, resulting in an injury.

Scenario #3

• You work as a teacher and the school where you work is holding an art show.
• You’ve been asked to go to the shops and pick up some supplies for the project.
• Whilst in a shop, you trip on a box that was left in the walkway and suffer a back injury.

Scenario #4

• You are an apprentice plumber, working on worksites some days and at TAFE other days.
• Whilst at TAFE, you fall from a ladder sustaining multiple injuries.

Scenario #5

• You work in sales and are frequently travelling for work.
• During one of your interstate trips, a painting hanging above your bed at the motel your assistant booked for you, falls on you whilst you are sleeping.
• You sustain a neck injury as a result.

Were these workers “at work” and therefore entitled to bring a claim for compensation?  To answer this, the relevant test is whether the injury arose out of or in the course of employment.

This part of the test requires us to ask whether something about the nature of your employment caused the injury.

For example, did the specific work tasks or equipment used cause the injury? If the answer is yes, there is usually little dispute about these types of injuries.

Injuries that are sustained in the course of employment are not always as obvious as those that arise out of employment.

This part of the test includes injuries that are sustained whilst working or doing something that is incidental to your work, but were not necessarily caused by the nature of your employment.

The first scenario above, where the worker is a recruiter, is an example of an injury that might have occurred in the course of employment. The fall itself has nothing to do with the nature of the work as a recruiter. However, the fact that the employee had commenced work for the day from home, the injury would be considered to have been sustained in the course of employment.

When we look at the scenario with the teacher, it would also be considered to fall within this category of ‘sustained in the course of employment’. The teacher’s employment did not cause the injury however, the injury was sustained whilst undertaking an activity that is incidental to the employment.

In addition to the above, there are some other situations where the legislation deems the injury to have arisen in the course of employment.

These include:

1. When a worker is temporarily absent from their usual place of work during an authorised break. This would include the scenario above where the receptionist is on their lunch break.
2. When travelling for work. The sales worker’s scenario would be covered by this provision.
3. When attending at any trade school or any other work required training. This provision would apply to the example of the apprentice plumber.
4. When attending for medical treatment and other services in relation to an already existing WorkCover claim.

If you have sustained an injury that is in any way incidental to your employment, you may be entitled to lodge a workers compensation claim for WorkCover benefits. Your employment itself does not always have to have caused the injury.

At Polaris, we are experts in WorkCover compensation claims.

For advice or assistance, please get in touch with a Polaris WorkCover lawyer.