Welcome to the February Newsletter.   In this month’s Newsletter, we discuss COVID-19 work-related injury claims and permanent impairment assessments.  We also consider an unfair dismissal case in which an employee’s COVID-19 vaccination exemption was held not valid.  


As more employees are returning to the workplace and restrictions continue to ease, there is a greater risk to employers that employees will contract COVID-19 at work and lodge a workers compensation claim for a COVID-19 work-related injury. This type of work-related injury claim is complex as the risk of a person contracting COVID-19 is not limited to the workplace and therefore determining whether the contraction was work-related can be difficult.  

What is assessed?

WorkCover Queensland (“WorkCover”) assesses COVID-19 related claims in the same way as WorkCover assesses other injury claims under the Worker’s Compensation and Rehabilitation Act 2003 (Qld) (“WCRA”).  In accordance with the WRCA, WorkCover needs to be satisfied the employee contracted COVID-19 in the course of their employment and that it was related to their work. 

In Queensland, the onus is on the employee to prove that the COVID-19 diagnosis was related to the employee’s work.  An employee must:

  • have a work capacity certificate from a doctor who can confirm the COVID-19 diagnosis;
  • prove that the employee’s exposure to COVID-19 occurred within the employee’s work environment or while travelling to, from or for work; and
  • have medical confirmation that the employee’s diagnosis was related to the employee’s work.

WorkCover will consider each claim lodged for COVID-19 on the individual circumstances of the claim, and consider information from the employer, the employee and medical practitioner.  If confirmation is received that the employee’s exposure to COVID-19 occurred in the course of employment, whether at or away from the place of employment or whilst traveling to and from work, WorkCover will need to obtain medical information to help make this determination.  

If WorkCover accepts a statutory claim for compensation, that is, the employee contracted COVID-19 in the course of employment and this was related to work, the employee may be entitled to compensation.

Managing COVID-19 work-related injury claims involves complex legal considerations.  HR Law has assisted employers to manage and dispute COVID-19 work-related injury claims and are here to support you too.  If you would like advice on a COVID-19 work-related injury claim or if you have any questions, please give us a call.


In most workers compensation claims, an employee who has suffered a work-related injury and has been absent from the workplace, generally returns to work to their pre-injury duties or modified duties.  But what happens if an employee cannot return to work when the workers compensation claim ends?

Under section 144A of the WRCA, a worker’s entitlement to weekly wage compensation payments ceases when the first of the following happens:

  • the incapacity because of the work-related injury stops;
  • the worker has received weekly payments for the incapacity for five years; or
  • compensation reaches the maximum statutory compensation amount under section 140 of the WCRA.

Section 144B of the  WRCA, provides that a workers’ entitlement to payment of medical treatment, hospitalisation and expenses stops when the following occurs:

  • the entitlement of the worker to weekly payments of compensation stops under part 9 of the WCRA; and
  • medical treatment by a registered person is no longer required for the management of the injury because the injury is not likely to improve with further medical treatment or hospitalisation. 

It is important to note however, that there are other circumstances which give rise to the ending of statutory workers compensation benefits, such as fraud.

Permanent Impairment

WorkCover or the relevant insurer may arrange for the worker to be assessed for a degree of permanent impairment.  If this is not arranged, a worker can make a request to the insurer for this to be done.  The insurer will arrange an appointment with an external medical officer for a permanent impairment assessment or refer the worker to the Medical Assessment Tribunal.  The worker cannot choose who the doctor will be who will perform the assessment. The medical professional for the Medical Assessment Board will assess the workers injury in accordance with the Guidelines for the Evaluation of Permanent Impairment.  You can access a copy of the guidelines here:

Assessment process

Once the worker’s injuries have been assessed, WorkCover or the relevant insurer is required to issue a Notice of Assessment (“Notice”) to the worker within 10 business days of WorkCover or the relevant insurer receiving it. The Notice must include any entitlement the worker has to lump sum compensation along with the inclusion of a lump sum offer.  If a worker suffers both a physical and psychological injury, two Notices must be sent.  If a worker disagrees with the percentage impairment in the Notice and advises WorkCover or the relevant insurer within 20 business days, WorkCover or the relevant insurer can within 10 business days arrange a reassessment or refer the worker for assessment by the Medical Assessment Tribunal.  

Irrevocable election

If a worker’s Notice states an assessment of permanent impairment of less than 20%, the worker must make an irrevocable election between accepting the lump sum offer of compensation or pursuing a common law claim for damages.  Accepting a lump sum offer prevents the worker from pursuing a damages claim for that injury.  If however, the permanent impairment assessment is assessed at more than 20%, the worker can accept both the lump sum offer and in addition, pursue a common law claim for damages.  

If you are dealing with an employee who may have a permanent impairment and need advice, contact HR Law.  We will assess the facts of the workers compensation claim and advise you on how to best respond to and manage the risks that your business may face.


In the recent unfair dismissal case of Mr Ross Barry Edwards v Regal Cream Products Pty Ltd  [2022]  FWC 257, Mr Ross Edwards (“Mr Edwards”) was dismissed by Regal Cream Products Pty Ltd, trading as Bulla Dairy Foods (“Bulla”) for breaching a COVID-19 vaccine mandate direction issued by the Victorian Chief Health Officer.  

The COVID-19 Mandatory Vaccination (Workers) Direction (“Direction”) issued on 7 October 2021, and which applied to Mr Edwards, required that, unless a valid medical exemption applied, in order to work on site, manufacturing workers must receive their first dose of a COVID-19 vaccine by 15 October 2021 (or have a booking to do so) and must be fully vaccinated by 26 November 2021.  

Mr Edwards had major health concerns regarding vaccination and, after consulting with his doctor, provided Bulla with a medical certificate on 13 October 2021.  Bulla found that the medical certificate did not meet the requirements of the Direction as:

  • the medical certificate did not certify that Mr Edwards was unable to receive a dose, or a further dose, of a COVID-19 vaccine due to a medial contradiction or acute medical illness; and
  • it was not clear that the treating doctor was a medical practitioner as defined by the Direction.

Bulla advised Mr Edwards that he was suspended without pay from 15 October 2021, a valid medical exemption was required by 22 October 2021 and that Bulla was prepared to arrange and pay for an appointment with an independent medical specialist.

Mr Edwards applied to Bulla to take long service leave so that he had more time for either a more appropriate drug to become available or for the vaccine mandate to end. This request was denied by Bulla who argued that Mr Edwards was suspended without pay and was therefore not entitled to long service leave.  Mr Edwards contended that even though the the Long Service Leave Act 2018 (Vic) enabled Bulla to refuse the request, it could only do so on reasonable business grounds, which Mr Edwards contended there were none.   As Mr Edwards failed to provide evidence of a first dose of a COVID-19 vaccination or a medical exemption as required, Bulla concluded that Mr Edwards could not legally perform any work on site by virtue of the Direction and, as there were no alternate suitable duties, terminated his employment.  

In finding that Bulla had a valid reason for the dismissal, Commissioner O’Neil noted at paragraph [43] of the decision, that, “Bulla had no option but to comply with the Directions.”  It was also noted that Bulla offered significant assistance and support and acted with empathy and care and was respectful of Mr Edwards’ concerns about being vaccinated.

There has been an increase in employers having to defend unfair dismissal claims due to employees failing to comply with mandatory government health directives.  As we have seen in the Bulla case above, although an employer has a legal obligation to comply with a mandatory government health directive, it may still find itself having to defend its position on why employment was terminated.  If your business finds itself having to defend an unfair dismissal claim or you have a question on how mandatory vaccination applies to your workplace, please contact the team at HR Law.


Independent Contractor vs Employee: High Court looks to the contract terms

Two highly anticipated decisions considering whether workers were employees or independent contractors have been handed down by the High Court in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2. You can read more about these decisions in our latest article linked below:

Summary dismissal upheld for confidential information and IP breach

The Fair Work Commission upheld the summary dismissal of an employee for disclosing their employer’s confidential information and intellectual property.  You can access our case brief here:

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