January 2020

The current bushfires and workers compensation

Firefighters

The physical effects of the fires are immediately apparent with over 10,700,000 hectares (26,000,000 acres) of bush burned and our wildlife suffering around Australia.  However, most people are unaware of the physical and psychological impact this is having on career and volunteer firefighters.

There are thousands of firefighters currently battling the fires across NSW.  Some firefighters have been burned during the fires, inhaling smoke and/or others left feeling traumatised from the experience.

The main question that will be asked in the wake of this disaster is how will we recover?  A large part of the recovery will be aided by insurers, and this includes workers compensation insurers.  

Firefighters employed by The Rural Fire Service and NSW Fire and Rescue are covered by the Workers Compensation Act 1987 (1987 Act), although they are classified as exempt workers, meaning most of the amendments [which limit entitlements] made to the 1987 Act in 2012, 2015 and 2018 do not apply to them.

While volunteer fire fighters are not covered by the 1987 Act they have special protections under the Worker’s Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (Bush Fire Act).  These protections also extend to career fire fighters.

Firefighters[1] are considered to have suffered a personal injury under section 7(1) of the Bush Fire Act if the injury is:

(a) Arising out of or in the course of fighting a bushfire, or

(b) Arising out of or in the course of a relevant journey by the fire fighter in relation to a bushfire.

Given the scope of work involved in fighting a bush fire there are a number of injuries that could be expected to arise both physical and/or psychological.  There are already many reports of firefighters having suffered physical injuries and some emerging cases of PTSD.  As we are all aware some volunteer fire fighters have also been tragically killed in the line of duty.

It would be reasonable to expect a rise in workers compensation claims made by both career and volunteer fire fighters over the next few months.

It is important to note that, while physical and psychological injuries can be experienced immediately, some injuries can take much longer to manifest and may not be apparent for months or years, particularly PTSD.  

One such type of ‘injury’ is cancer.  The Workers Compensation Legislation Amendment (Firefighters Bill) 2018 was passed by the NSW Parliament on 22 November 2018 which makes it easier for firefighters to claim compensation for certain cancers by reversing the onus of proof. This means that, for eligible firefighters diagnosed with any of the 12 specified primary cancers,[2] and who meet the corresponding minimum qualifying periods of service, their cancer will be assumed to have developed because of their firefighting work or volunteer service unless the insurer can prove otherwise.

At this stage we are unaware of this legislation being tested in the Workers Compensation Commission.

Other workers

Firefighters are not the only workers affected by the recent bushfires in Australia.  Other workers such as pharmacists, charity workers and/or wildlife rescue personnel are directly affected by the NSW bushfires.

There are pharmacists who have kept their businesses open to supply medicine to those in need and sometimes transporting the medicine to heavily fire-affected communities; charity workers are seen collecting and delivering food, water, clothes and supplies to affected areas all around NSW; and wildlife rescue individuals putting their lives in danger saving endangered animals.

Any injuries sustained by these workers in the course of their employment could be subject to the 1987 Act, and they will need to satisfy the usual causation tests to receive compensation.

There is a long road to recovery ahead but as evident in the last few weeks, Australians are tough and we will make it through together.

Authors: Kate Ralph & Rana Issa

Contributing partner: Mick Franco

 

[1] Section 5 of the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987, ‘definition of firefighter’, also includes volunteers.

[2] Workers Compensation reforms for firefights – SIRA website lists the 12 specified primary cancers and the corresponding qualifying periods of service.