Presumptive laws

Presumptive laws assist injured workers in prescribed occupations by reducing the burden of proving that the illness or injury was caused by their employment.

In acknowledgement that some occupations have an increased risk of contracting certain diseases or incurring certain injuries during or in the course of employment, jurisdictions have enacted presumptive legislation to shift the onus of proof from the injured worker to the employer. In particular, almost all Australian workers’ compensation schemes recognise that firefighters have an increased risk of developing certain cancers as a result of being exposed to hazardous substances in their job. Table 4.10 details the workers’ compensation jurisdictions that have enacted presumptive legislation for firefighters. It notes the categories of firefighters covered and the years of service required to qualify for the presumption that specified cancers were contracted in the course of employment.

More recently, some Australian workers’ compensation jurisdictions have used presumptive provisions to assist first responder organisations with the increased risks of developing post-traumatic stress disorder (PTSD) and COVID-19 through employment. Table 4.11 specifies the jurisdictions which have enacted presumptive legislation to cover specific occupations for PTSD and COVID-19.

Diseases

Diseases are classed differently to physical injuries. Diseases include any physical or mental ailment, disorder, defect or morbid condition, whether of sudden or gradual onset. All jurisdictions, except Queensland, have in their legislation tables of diseases that are deemed to be caused by work. Table 4.12 provides a jurisdictional comparison of these lists.

Deemed Diseases

Compared to work-related injuries, it is more difficult to prove that a disease was contracted in, or caused by, particular employment. In recognition of this, all jurisdictions except Queensland* and DVA have enacted special provisions in their workers’ compensation legislation which deem specified occupational diseases as being caused by specified work related activities.

The effect of these provisions is to reverse the onus of proof. A worker with the disease who has been exposed to the relevant exposure in the course of their work is assumed to have developed that disease because of the exposure unless there is strong evidence to the contrary. Diseases that are not included on the jurisdictional prescribed lists can still be the subject of a workers’ compensation claim through the normal approach, where the reverse onus of proof would not apply. Table 4.13 provides a jurisdictional comparison of these lists.

* with the exception of firefighters, first responders and other scheduled workers with prescribed diseases