Background on work-related gradual process, disease, or infection injuries
This section provides background on what work-related gradual process, disease, or infections (WRGPDI) are and why the AC Scheme provides cover for them.
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AC Scheme cover for personal injury caused by WRGPDI
What is a WRGPDI?
A WRGPDI is an injury caused by a work-related task or environment. Examples of WRGPDI include, but are not limited to, the following:
- injuries arising from work with substances which cause illness to develop over time (e.g., lung cancer arising from exposure to asbestos);
- performing tasks that involve particular forceful and repeated movement that causes a gradual onset injury (e.g., hand-arm vibration syndrome from use of power tools); or
- single exposure to harmful agents such as certain infections from animals or their carcasses (e.g., orf caused by working with animals or their carcasses).
WRGPDI do not include work-related mental injury. This is covered under section 21B of the AC Act which is separate from WRGPDI injury cover. Work-related mental injury will not be considered as part of this review.
Accident Compensation Act 2001 Section 21B(external link) — New Zealand Legislation
Why does the AC Scheme cover WRGPDI?
Cover for WRGPDI has been a fundamental component of Aotearoa New Zealand’s historical and current workers’ compensation schemes.
The AC Scheme generally provides cover for physical injuries (for example a broken wrist resulting from a fall) and not for illnesses or disease. However, the AC Scheme does have specific settings for WRGPDI to provide cover for some illnesses caused by work.
These cover provisions acknowledge that not all injuries take immediate effect, some worker activities have a higher risk than others, and that workers may have little control over their work tasks or environments.
How are WRGPDI assessed under the AC Act?
There are 2 routes for accessing cover for WRGPDI under the AC Act. The first is through successful application of the 3-step test provided in section 30(2) of the AC Act; this is used to determine if the employment task or environment more likely than not caused or contributed to a personal injury. Section 30 enables ACC to consider claims for WRGPDI, such as hearing loss, which can also be caused by non-work factors (e.g., ageing).
Accident Compensation Act 2001 Section 30(external link) — New Zealand Legislation
The second cover route is through a WRGPDI being included in Schedule 2 (the AC Act’s list of occupational diseases). As previously mentioned, this is a streamlined cover route as the entries on this list are already established to have a strong causal link to exposure to a substance or specific work task.
Accident Compensation Act 2001 Schedule 2(external link) — New Zealand Legislation
Schedule 2
An occupational disease being included in Schedule 2 reflects that there is a sufficiently strong causal relationship between the disease and exposure(s) faced in an occupational setting, rendering any other cause (i.e., non-work-related) for the disease unlikely. The ability to demonstrate a causal relationship is often completed in high quality scientific studies.
Inclusion in Schedule 2 does not guarantee the acceptance of a WRGPDI claim. Section 60 of the AC Act allows for ACC to decline a claim for cover under Schedule 2 if the claimant does not have a personal injury (e.g., they make a claim for exposure only), or if the personal injury was not caused by their employment (e.g., their condition’s causal factor, per the Schedule 2 entry, was not present in their work tasks or environment).
Accident Compensation Act 2001 Section 60(external link) — New Zealand Legislation
Schedule 2 is largely based on the International Labour Organization’s List of Occupational Diseases (the ILO list). The ILO list was originally created in 1934 and was most recently updated in 2010. Per the ILO’s Convention C042, which New Zealand is a party to, members are recommended to implement a list, test, or mixed approach to provide workers’ compensation for occupational diseases.
Convention C042 - Workmen's Compensation (Occupational Diseases) Convention(external link) — International Labour Organization
New Zealand implements a mixed approach using both Schedule 2 and the section 30(2) 3-step test to provide workers a route for compensation for their WRGPDI’s. Our mixed approach combines the streamlined pathway to cover from Schedule 2 with the flexibility of the section 30(2) 3-step test.
Schedule 2 has not been updated since 2008 (2 years prior to the ILO List’s last revision). This makes it over 10 years since the epidemiological evidence has been reviewed to assess whether new occupational diseases and their corresponding exposures are suitable for inclusion on Schedule 2. Given this length of time, Cabinet agreed that it was time not only to review Schedule 2, but to develop a framework to support all future reviews.
Cover for work-related gradual process, disease, or infection injuries
Cover for WRGPDI injury has been a fundamental component of workers compensation schemes in Aotearoa New Zealand in the past and of workers compensation schemes internationally to date. It is a requirement under ILO Convention 42, to which Aotearoa New Zealand is a party, for members to provide compensation to workers incapacitated by occupational diseases.
The AC Scheme generally provides cover for injuries (for example, a broken leg), but not for illnesses. Illnesses are cared for through the health and welfare system when they are not a result of somebody’s work activities. However, the WRGPDI settings in the AC Act provide cover for gradual process, diseases and infection caused by work.
These provisions acknowledge that not all injuries have instant effects, some work activities are higher risk than others and workers may have restricted control over their work tasks or environments that cause a disease, injury, or illness.
There are 2 ways that WRGPDI injuries are covered in the AC Act. The first route involves using the 3-step test (set out in section 30(2) of the AC Act). This test is used to determine if a personal injury is, on the balance of probabilities, more likely to be caused by a work-related factor than not.
The 3-step test enables ACC to consider claims for a variety of WRGPDI injuries, including hearing loss and musculoskeletal conditions, which can also be caused by non-work factors (such as ageing). ACC has recently released a short video describing how WRGPDI injury cover works using the 3-step test, which you can watch at the link below.
The essentials of work-related gradual process injury(external link) — YouTube
Occupational Diseases in Schedule 2
The second route to WRGPDI injury cover is being diagnosed with an occupational disease that is on Schedule 2. Schedule 2 provides a simpler pathway to AC cover for individuals who develop an occupational disease. It is appropriate to have a streamlined process when there is existing strong scientific evidence of a causal link between work and a disease, infection or gradual process, as this provides improved efficiency for claimants and decision-makers throughout the claim process.
The inclusion of occupational diseases in Schedule 2 has reflected strong scientific evidence of a causal link to work to render any other cause unlikely. This is usually demonstrated through separate, good quality studies demonstrating a causal link. Diseases that are not included in Schedule 2 can still be considered for cover through the 3-step test.
An occupational disease being listed on Schedule 2 does not guarantee the acceptance of a claim. Claims for cover under Schedule 2 can be declined under section 60 of the AC Act if a claimant does not have a personal injury (e.g., they make a claim for exposure only), or if a personal injury was not caused by their employment (e.g., the causal factor for the condition described in Schedule 2 was not present in their work activities).
The occupational diseases listed in Schedule 2 are largely based on the ILO List which was initially created in 1934 and most recently updated in 2010. The ILO, as part of its workers’ compensation commitments, recommended to members that they implement a list, test, or mixed approach to provide workers’ compensation for occupational diseases.
Aotearoa New Zealand’s approach uses both Schedule 2 and the 3-step test to compensate workers for WRGPDI injuries. This mixed approach combines the certainty of cover from the Schedule 2 list of occupational diseases, with the 3-step test providing the ability for a flexible response to injuries with less causative evidence linking them to work or new and emerging circumstances.