In our 2021 article, "NSW worker's compensation entitlements when working from home", we used hypothetical scenarios to discuss how worker's compensation could potentially be claimed when working from home. with hypothetical scenarios. The two main tests an injured worker has to prove when claiming worker's compensation in NSW are:
- that their injury arose during the course of their employment; and
- that their employment was a substantial contributing factor to their injury.
A recent decision in the NSW Personal Injury Commission (PIC) seems to have taken a broad approach when applying these tests in the context of a worker being injured whilst working from home.
Summary of facts
The injured worker's position involved taking phone calls and attending video calls on her computer. Prior to the date of injury, the injured worker had recently bought a puppy for their daughter. During working hours, the injured worker would tie the puppy outside their front door to not disturb them whilst on calls.
On the date of injury, the injured worker was working from home and had just got off a call with their manager. The injured worker could hear that their puppy was crying. When they opened their front door, they saw a stray dog attacking their puppy. The injured worker intervened and attempted to rescue the puppy. Whilst doing so, the injured worker was attacked by the stray dog and sustained a physical and psychological injury.
The injured worker lodged a claim for workers' compensation which the insurer disputed (rejected) on the grounds that their injury did not arise out of or in the course of their employment and their employment was not a substantial contributing factor to their injury.
Personal Injury Commission determines worker was eligible to claim worker's compensation
The PIC was required to determine whether the injured worker's injury did, in fact, arise out of the course of their employment and whether their employment was a substantial contributing factor to their injury.
After reviewing relevant cases and established principles, the PIC determined that the injured worker was injured during the course of their employment and that their employment was a substantial contributing factor to their injury.
Considerations related to determining "injury occurred in the course of employment"
In relation to whether the injury occurred in the course of employment, the PIC considered where the dog attack occurred. From the evidence, the attack occurred on the injured worker's property which the PIC considered, at the time of the attack, was their workplace due to being authorised to work from home and the attack occurring whilst the worker was at work.
Further to this, the PIC stated that although the worker stopped performing her actual work duties (i.e. taking calls, responding to emails etc.), they were satisfied that intervening in the attack was a reasonable and practical necessity which was consistent with what their employer would have reasonably expected of them in the circumstances.
Considerations related to determining "employment was a substantial contributing factor"
In relation to whether the injured worker's employment was a substantial contributing factor to their injury, the PIC considered the injured worker's place of employment and the requirements of her role.
The PIC stated that the employer expected the worker to perform her work duties in a professional manner which included an environment within the home that was sufficiently quiet and amenable to be able to concentrate. The injured worker's argument was that they needed to place the puppy outside in order to fulfil this expectation from their employer.
The PIC stated that there was no evidence to suggest that the puppy would have been tied up outside (and therefore susceptible to the dog attack) if the injured worker had not been performing her work duties.
The PIC stated that the probability of injury increased by the puppy being outside. The PIC stated that this circumstance arose due to the injured worker being at work and due to the nature of their employment.
It should be noted that the original date of decision was 24 October 2022. The insurer did appeal the decision, however, a PIC Presidential Decision was handed down on 10 October 2023, which confirmed the original decision being an award for the injured worker.
Implications for workers injured working from home in NSW
This case does seem to confirm that the PIC will more than likely consider taking a broad view of an injury arising out of the course of employment and employment being a substantial contributing factor when an injury occurs while working from home.
The decision also seems to point to the home being considered a workplace during working hours if a worker is permitted to work from home. This is an important consideration in the context of proving that an injury arose during the course of employment, as the location of an injury is one major factor in determining this.
Get help from worker's compensation lawyer
It is likely that worker's compensation claims while working from home will increase due to more flexible work arrangements coming into play since the pandemic. It's important for workers to understand that they still have workplace rights, including the right to compensation after a workplace injury when authorised by their employer to work from home.
If your worker's compensation claim has been declined for whatever reason, or you have any other issues with your claim, it is always important to seek legal advice in order to determine whether you can dispute a decision.
At Hall Payne Lawyers, our NSW worker's compensation lawyers are IRO approved lawyers. This means that your legal fees and any associated costs to dispute the insurer's decision are free. This includes fees to obtain an independent medical opinion which is crucial when disputing the insurer's decision.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.