Can a new employer ask an injured worker about their WorkCover history?

Interview.-previous0workcover-claims

Last year, in the context of an “Injured worker who lied in medical denied injury compensation” we posted some interesting comments and discussions about the problems injured workers face obtaining a new job because they have suffered a workplace injury, are still suffering the consequences of an injury, or, frankly, simply because they have a history of a workers compensation claim.

Many injured workers tell us (and we have personally experienced it as well) that it is very difficult to find a new job once they have a record of a workers comp claim,…

…as there may be issues around “liability in scenarios of what if there is aggravation, exacerbation of that injury; or simply the fact that potential new employers prefer “100% healthy” employees and as such are quite discriminatory against injured or impaired workers, and those who have had a prior workcover claim.

The case in point is that many injured workers may be genuinely afraid to disclose a previous workplace injury (or another injury i..e psych injury of a personal nature) out of fear of not getting a new job.

While we fully understand that some (former) injured workers may not disclose prior injuries, whether personal or work-related out of fear of having their job application turned down,  it is clear from several legal cases that injured workers are better of telling the truth and disclosing even the smallest of injuries/conditions, in the event of a workplace injury….

Thanks to our co-author Trinny, we found out whether a new employer is legitimately allowed to ask a (former) injured worker about their workcover history.

Can a new employer ask an injured worker about their WorkCover history?

According to the SA Ombudsman:

People often tell me (the SA Ombudsman) that when they apply for a job, the application form asks whether they have had a workers compensation claim, and if so, they are required to provide details of their claim history.

Many people who have a WorkCover history are intimidated by this and believe that if they answer the question truthfully the employer will be biased against them.

Are employers allowed to ask this question and what should a job applicant do if the question appears on the application form?

In my (the SA Ombudsman) view, although it would be against anti-discrimination laws for an employer to refuse a person’s application because the applicant has previously made a claim for workers compensation, there is nothing unlawful about an employer asking the job applicant to provide their WorkCover history.

Even so, while it is not against the law for an employer to ask a general question about a person’s WorkCover history it is still inappropriate.

Questions on a job application form should be relevant to the type of job being considered.  A general question about an applicant’s WorkCover history is no more relevant to the job than, say, their marital status or religion.  If a decision to grant or refuse the application cannot lawfully be based on the answer to the question, why ask it?  If an applicant is asked such a question, he or she would be entitled to respond with, ‘Not Applicable’ or by ruling a line through it.

Instead of asking an applicant about their WorkCover history, a relevant question would be, ‘Are you currently affected by any injury or condition that may impact upon your ability to perform all the duties of the job?  If so, please provide details and  advise on what measures may be taken to accommodate your injury or condition so that you could perform the job satisfactorily.’  This information is necessary to the employer fulfilling their workplace safety obligations and ensuring that the applicant could undertake the job without endangering themselves or others.  An employer can also lawfully refuse to give a job to someone whose physical or mental impairment would render them unable to perform the job.

If such a question is asked, the applicant should provide an accurate answerA failure to disclose details of an injury that could affect the applicant’s ability to perform the job might lead to disciplinary action or dismissal if, after being given the job, further injury occurs. (and, importantly, as we have seen through various judgments, compensation for a new or further work injury can be denied, if no history was disclosed)

However, according to the SA Ombudsman, any question that is irrelevant to the job, such as a general question about whether the applicant has ever made a workers compensation claim in previous employment, does not need to be answered and the applicant can ignore it.

Sourced and kindly shared by co-author Trinny – original source: Can an employer ask a job applicant about their WorkCover history? (SA Ombudsman)

 

Related reads

Employer ordered to pay compensation for refusing to employ injured

3 Responses to “Can a new employer ask an injured worker about their WorkCover history?”

  1. Our co-author Trinny kindly shared the following: On posting the scheme project on occupy Sydney last night, she found the following comment:

    This is what employment agencies do to injured workers!

  2. According to our VICTORIAN PI friend, Investigations for stress claims still account for a highest number of referrals to PI firms; however our PI says they have noticed a higher number of claims being lodged which may be considered to be a continuation, exacerbation or aggravation of a prior injury.

     

    In a number of these cases employers provide supporting information which would indicate that the worker has not declared a prior injury/claim on a pre- existing injury disclosure prior to commencing employment, therefore they (the employer) is seeking to have liability for this claim denied on this basis!!.

     

    In relation to a pre-existing disclosure form, the Victorian Accident Compensation Act (1985) (as amended) is very specific about the wording of this document and its application.  It is worth also noting that the onus is on the employer to prove that they have followed due process in relation to the pre-existing disclosure.

     

    section.82(7) of the VIC act provides the following:

     

    “if it is proved that before commencing employment with the employer-

     

    (a) a worker had a pre-existing injury or disease of which the worker was aware; and
    (b) the employer in writing-

     

    (i) advised the worker as to the nature of the proposed employment; and
    (ii) requested the worker to disclose all pre- existing injuries and diseases suffered by the worker of which the worker was aware and could reasonably be expected to foresee could be affected by the nature of the proposed employment; and
    (iii) advised the worker that subsection (8) will apply to a failure to make such a disclosure or the making of false or misleading disclosure; and
    (iv) advised the worker as to the effect of subsection (8) on the worker’s entitlement to compensation; and

     

    (c) the worker failed to make such a disclosure or make a false or misleading disclosure or made a false or misleading disclosure-

     

    subsection (8) applies.

     

    (8) If this subsection applies, any recurrence, aggravation, exacerbation or deterioration of the pre- existing injury or disease arising out of or in the course of employment does not entitle the worker to compensation under the act.
    (9) If this section operates to prevent a worker or the worker’s dependants recovering compensation in relation to an injury, the worker or the worker’s dependants cannot rely on this section to claim to be entitled to take any other action or proceedings.”

     

    As it is written in the above section of the act, a potential worker must be informed in any pre-existing injury disclosure document of the provisions of subsection (8) and its implications in relation to liability for a claim for compensation.

    Many employers use the correct wording as per the above, however many fail to provide the worker with a position description, risk assessment, task analysis or even a site tour in order to see the position the worker has applied for in operation; nor do they undertake a pre-employment medical.  Other employers do not use the correct wording or provide any of the abovementioned to the worker but undertake a pre- employment medical which they then seek to rely on; other employers do nothing.

     

    It is difficult for an employer to prove in the abovementioned situations that they have satisfied the provisions of s.82(7) and therefore deny liability for a claim for compensation unless they have undertaken the following:

     

    • Provided the worker with a copy of the position description.
    • Provided task analysis/risk assessments for the role with specific inherent requirements of the role (i.e. maximum lifting requirements, sitting, standing, climbing, etc).
    • Undertake a site tour with the potential worker showing them the role in application.
    • Correctly word the pre-existing disclosure as per s.82(7) and in particular subsection (8).
    • Undertake a pre-employment medical and provide the aforementioned information to the medical practitioner.

     

    ( this is not an exhaustive list and is kindly provided by way of example only)

     

    It is worth noting that a document should be signed at each stage of the process by the worker, indicating that at each stage there is nothing that they have seen that may pose a potential risk.  Whilst this is an annoying process it is the best chance that an employer has of relying on a pre-existing disclosure.

    We don’t think many employers actually do this, and as such do not have that much “leg” to stand on, when it comes to denying liability. However, as you can see, it is best you provide the relevant info to a new employer and disclose even the smallest of injuries (which may affect your ability to work in some way, i.e. should you need an ergonomic computer mouse etc) so that you can protect yourself and be able to claim compensation should any of your “pre-existing” (aka pre-new employment) injuries aggravate…

     

     

    workcovervictim3 August 4, 2013 at 1:26 pm
  3. Here is yet another legal case, demonstrating issues injured workers face when needing to disclose prior workcover history/claim in order to secure a new job:

    An underground coal miner whose back “exploded in pain” when hauling equipment along a mine tunnel has been awarded a fraction of the damages demanded as a result of the accident.

     

    T claimed to have been directed by a supervisor to use a strap sling – with arms overhead his body – to drag a 180 kg “shearer block” along the coalface at North Goonyella Mine 160 km west of Mackay.

     

    Not held to be deliberately dishonest, T – a former army cook – “was not an impressive witness” and “came to believe things that are inaccurate and he came [to court] to argue his cause. This has led to embellishment and reconstruction.”

     

    He called no eye-witness testimony during the four-day Rockhampton trial to confirm the occurrence.

     

    But neither did his employer – SBD services, a specialist underground coal mining contractor – have anyone to support its contention that no such incident ever occurred.

     

    Every witnesses having some experience with underground mining indicated that machinery would normally have been utilised for movement of such a heavy object.

     

    Despite serious misgivings, His Honour was persuaded that such an event had indeed occurred in February 2009 and that as a result SBD was primarily liable for damages for the resulting injury.

     

    SBD nevertheless argued that Klein must bear some responsibility for the injury and contended for a finding of contributory negligence against him.

     

    He had, they said, launched himself into the task without following the required SLAM – an acronym for stop, look, assess and move – protocol drilled into workers for addressing all unusual tasks.

     

    The court agreed and apportioned T’s share of accountability at 25% to be deducted from whatever damages it assessed attributable to the incident.

     

    Orthopaedic surgeons Mark Shaw and Dr Cook agreed the plaintiff had suffered an internal disruption of the L5/S1 disc but Shaw was of the view that it had in fact originated during a period of military service in the catering corps in 1996-97.

     

    T had army medical treatment in October 1996 after falling onto his sacrum whilst playing cricket. With range of movement reduced by 20%, he reported “pain in L5/S1 area radiating down left leg…unable to do trunk rotations”. In February 1997 the medical file showed “continuing back pain for 6-8 mths… work lately has required lifting…now have problems doing daily tasks. appeared uncomfortable and in pain with stabbing pain radiating down both legs”.

     

    Dr Cook thought that Klein had made a complete recovery from these episodes particularly as he  subsequently passed an army  “combat ready assessment”.   He believed that the whole of T’s current complaints had originated in the Goonyella mine tunnel.

     

    Unfortunately for T, Dr Cook’s opinion was disregarded with the court noting “Dr Shaw’s analysis provides a more persuasive interpretation of the plaintiff’s history”.

     

    A further blow to the plaintiff’s case was his passing with flying colours a ”Kraus-Weber test” medical assessment take in March 2009 when he applied for a position to another mining company. He also fatally declared in a questionnaire for the examining doctor that he had fully recovered from the earlier mine tunnel accident.

     

    His protest from the witness box, that such declaration was made only for the purpose of securing employment, fell on deaf ears.

     

    As a result, the contention that participation in the mining industry was now beyond him, was rejected by the court.

     

    Loss of income up to the date of trial was assessed at $155,000 and a further $150,000 was allowed for diminution in future earning capacity, assessed on a global basis even though  “the plaintiff might on some views be much the same condition now irrespective of the injury”.

     

    T’s damages were totalled at $387,000 taking into account the 25% deduction slated home to the plaintiff .

     

     

    Klein v SBD Services Pty Ltd [2013] QSC 134 Rockhampton McMeekin J published 18/07/2013

    workcovervictim3 August 3, 2013 at 12:04 pm