The Law Handbook 2024

940 Section 10: Accidents, insurance and compensation contractors.) In deciding whether an injured person is a worker, in the past, the courts have considered all the relevant factors in the alleged employment, such as the nature of the remuneration and the degree of control exercised by the alleged employer. In 2022, the High Court determined that a strong emphasis shouldbe placedon the rights andobligations of the parties in any written agreement between them in determining the legal nature of their relationship. However, a simple statement in the written agreement that a person is not a ‘worker’ does not determine the nature of the relationship. What illnesses, injuries or diseases are covered? Section 39(1) of the WIRC Act states that: If there is caused to a worker an injury arising out of or in the course of any employment, the worker shall be entitled to compensation in accordance with this Act. The term ‘employment’ referred to above includes, within the WIRC Act, travelling or other specified breaks (discussed below). As long as the personal injury happens during work or during a specified journey or break, or is caused to a worker by the nature of the work, it may be covered by the WIRC Act. Section 3 defines ‘injury’ as ‘any physical or mental injury’ and includes industrial deafness, as well as: • a disease contracted by a worker in the course of the employment, whether at or away from the place of employment; and • a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease. If an injury occurs at work, then there is generally a valid workers compensation claim. However, for a ‘heart attack injury’ or ‘stroke injury’ disease contracted in the course of employment and the recurrence, aggravation, acceleration, exacerbation or deterioration of any pre- existing injury or disease, it will always be necessary to show that employment was a ‘significant contributing factor’ to the injury (s 40(3)). The phrase ‘significant contributing factor’ is defined in schedule 1, clause 25 of the WIRC Act. To determine this, a number of factors are taken into account, such as the duration and particular tasks of the employment, hereditary factors and the probability that the injury would have occurred outside the employment. The term ‘disease’ includes any physical or mental ailments, disorder, defect or morbid condition whether of sudden or gradual development. It also includes the recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing disease. For example, there is a valid claim if a worker falls and breaks a leg at work. However, if a worker suffers a heart attack at home, and if the nature of the employment or incidents in the course of the employment have contributed to high blood pressure or heart disease, there may also be a successful claim for workers compensation, even though the eventual heart attack happened at home. A large number of different illnesses, injuries and diseases have been covered by way of workers compensation, including heart disease, various types of cancer, the removal of gallstones, polio and varicose veins. Providing that there is the necessary link with the employment, there is no real limit to the nature of illnesses, injuries or diseases that can be covered by way of workers compensation. NOTE At the time of writing, the Victorian Government had recently proposed in parliament legislation under which workers who experience work-related ‘stress and burnout’ will not be entitled to workers compensation benefits except for provisional payments for 13 weeks to cover medical treatment. Further, injured workers who are otherwise entitled to weekly payments of compensation at the end of the second entitlement period will have a further requirement to have a whole person impairment of greater than 20 per cent pursuant to the American Medical Association Guides to receive continuing weekly payments (see ‘After the second entitlement period (ss163,164,165)’, below). As at 1 January 2024 this proposed legislation is still being considered by parliament. If passed, it is anticipated that these legislative entitlement changes will come into effect later in 2024. They will apply only to workers injured after the proposed legislation commences and to workers who have not received 130 weeks of weekly compensation payments as at the date of commencement of that legislation. Gradual process A work-related injury can also occur gradually and be due to the nature of a worker’s employment (see s 39(3) WIRC Act). For example, a shearer who worked for different farmers over many years