Are you an employer? Have you ever considered what might happen if one of your employees claimed compensation for a pre-existing injury or medical condition? Do you know that by meeting certain requirements, such claims can be prevented?
In October 2013, the WorkCover legislation was changed to ensure employers could avoid a claim for compensation or damages, in certain circumstances, where an employee aggravates a pre-existing injury or medical condition.
What is a pre-existing injury or medical condition?
According to section 571A of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“WCRA 2003 (Qld))”, a “pre-existing injury or medical condition” means an injury or medical condition existing during the period of the employment process that a person suspects or, ought reasonably to suspect, would be aggravated by performing the duties the subject of the employment.
For example, if Jacob has a ruptured disc in his lower back, and subsequently accepts a position involving heavy lifting, he has a pre-existing injury under s571A WCRA 2003 (Qld), as he ought to have reasonably suspected his back injury would be aggravated if he lifted heavy items for work.
What does an employer need to do?
Sections 571A-C WCRA 2003 (Qld) set out formal requirements employers must meet to ensure they can take advantage of these provisions and avoid such claims. These provisions do not appear to have been tested in any Court or Tribunal. However provided the employer takes the steps set out in these provisions, they are likely to have the benefit of the provisions
Step 1: Pre-employment stage
To begin with, the provisions only apply if the employer makes a request in writing that the prospective worker disclose details of their pre-existing injury or medical condition (s571B(2) WCRA 2003 (Qld)).
In practice, this means that a form should be sent to prospective employees as part of an information package, during the process of considering a person for employment.
Step 2: Notification
The request for disclosure must also contain notification, in writing that if they make a false or misleading disclosure, they will not be entitled to compensation or damages in any event that aggravates the pre-existing injury or medical condition (s571B(2)(b) WCRA (Qld) 2002).
Step 3: Description of duties
The employer must also tell the person, in writing, the nature of the duties the subject of the employment (s571B(2)(a) WCRA 2003 (Qld)).
The form should also contain a description of the duties the prospective employee would have to perform in the role. The simplest way of meeting this requirement would be to ensure a detailed position description was included in a pre-employment information package, and be referred to in the form.
Step 4: Reasonable opportunity
The person must be given a reasonable opportunity to disclose the information requested by the prospective employer (s571B WCRA 2003 (Qld)).
While no period of time is prescribed, it is considered that by sending a prospective employee the form at least a few days ahead of the date the information is required, this requirement would be met. The length of time may vary depending on the complexity of the information requests in the form and the requirements of the role being applied for.
Consequences of Non-Disclosure
If a prospective employee who has a pre-existing condition knowingly makes a false or misleading disclosure about it, then they will not be able to claim compensation or seek damages for any aggravation of that pre-existing injury. The most common form of false or misleading disclosure is probably a simple failure to disclose the pre-existing condition.
If a person has not properly disclosed a pre-existing condition prior to starting work, and subsequently makes a claim for an aggravation allegedly caused by their employment, the employer will be given an opportunity to inform WorkCover of the steps taken to seek disclosure of pre-existing conditions. WorkCover should then take this information into account in determining whether to accept the claim.
What else can I do to prevent claims?
In practice, claims can be prevented by sending a form containing all requests and notifications to each prospective employee in an employment information package, during the process of considering a person for employment.
Contact us
This article was prepared by Alex McKean, Special Counsel in the Personal Injury Law Team.
We recommend you obtain legal advice regarding your specific circumstances. If you would like to speak with Alex or one of our experienced lawyers in our Personal Injury Law or Employment Law teams please contact 07 4637 6300. Alternatively, send us an online enquiry by clicking here.
