Let’s refer back to the recent changes to the Queensland Workers’ Compensation and Rehabilitation Act 2003, which have generated quite some debate. Whilst the focus has been on the introduction of a threshold (of 5%) for common law claims; the amendments now also allow (prospective) employers to obtain information about pre-existing injuries and workcover claims of prospective employees, which we – injured folks – believe is a disgrace and an insult in the context of an already extremely adversarial workers compensation system.
We all know what happens when our file is red flagged. You have either stood up for your rights and been labelled a troublemaker OR you’ve had your workcover claim accepted! Once injured on the job through no fault of your own (and often through the negligence of your employer) many of us are rapidly thrown on the scrap heap (sacked) and obtaining a new job when fit for work or restricted work is already very difficult for most….
Prior workcover claims and difficulties obtaining a job
Let’s have a look at the reasons why (prospective) employers hate hiring people who have had a prior work injury or workcover claim
A company, as an example, advertises a job for a worker to pack and load heavy (20-30 kg) boxes onto trucks. It would appear an easy position to fill.
But what if that job applicant shows up with two good, strong arms and appears to be a perfect candidate for the job, but has a history of some back trouble that resulted in one or a number of previous workcover claims? Not as easy to make the call this time – in the eyes of the employer. And virtually impossible if no pre-employment medical examination is undertaken, particularly by a doctor who understands the inherent job requirements and what it physically takes to accomplish them.
The main issue is that no employer wants to inherit an existing injury when putting someone new on the payroll, only to see a slight aggravation of the condition caused in the line of duty become their sole responsibility.. This is because when a workcover claim is filed, the employer’s premiums go up for a period of 3 years (this is also known as the workers compensation experience modification factor).
An example would be a supermarket who would see its workers’ compensation experience modification factor skyrocket to more than 3 times what it should be, caused by several open claims that were a direct result of, ahum, ” improper” or “non-existent” (no medical/ no background check) hiring procedures of let’s say 3 workers who has suffered from pre-existing work injuries such as back injuries and were hired to restock shelves (lifting) and aggravated their injuries…
If the employer does not conduct pre-employment background checks (i.e. history of prior work injuries/ claims) and medical exams. This potentially opens the door for employees to come on with for example existing soft tissue injuries to the back or shoulder, conditions further aggravated by the type of work encountered on the job.
Each state addresses the aggravation or exacerbation of a pre-existing condition differently. In most states, if the on-the-job injury exacerbates a pre-existing condition (even by 1 percent) it is considered to be a part of the compensable injury. This is conditional upon the doctor being able to say that within “reasonable medical probability,” the pre-existing condition was and remains aggravated by the on-the-job injury.
This isn’t always the case. Some states have adopted a more definitive way of separating occupational (on-the-job injuries) from non-occupational (pre-existing conditions). For an accident or aggravation of a pre-existing condition to be compensable (payable) in some states the definition of “coverage” includes for example a provision called major contributing factor. This means the condition the doctor is treating has to be at least 51 % related to the on-the-job injury.
The law in Australia and Queensland re obtaining information about pre-existing injuries and claims
Employers should pay serious attention to the amendments in QLD (and in general) relevant to obtaining information about pre-existing injuries and workers’ compensation claims of prospective employees.
THE WCR ACT (QLD) AMENDMENTS
Relevantly, the QLD amendments include:
A provision requiring a “prospective worker” to disclose pre-existing injuries or medical conditions if asked by an employer (section 571B). Making a “false or misleading” disclosure about a pre-existing injury or medical condition in response to an employer’s request prevents a worker from seeking compensation or damages for any “event” that aggravates the injury or condition (section 571C).
A provision allowing the prospective employer of a person to apply to “the Workers’ Compensation Regulator” (now part of the Office of Fair and Safe Work Queensland) for a copy of the person’s “claim history summary”, which details any Queensland workers’ compensation claims made by the person.
On first reading, the WCR Act amendments will be attractive to employers to utilise as part of their recruitment practices. However, other relevant statutory obligations mean that despite these changes, employers should proceed with caution.
OTHER RELEVANT STATUTORY OBLIGATIONS
- Not to take “adverse action” against employees
- An employer commits “adverse action” under the FW Act by refusing to employ a prospective employee because that prospective employee has exercised a “workplace right”.
- The right to claim workers’ compensation under the WCR Act is a “workplace right”. Consequently, an employer will be guilty of adverse action if it does not employ a prospective employee because of a previous workers’ compensation claim.
However, an employer can lawfully refuse to employ a person for an injury that prevents them from performing the inherent requirements of the role.
- Not to obtain or use a “workers’ compensation document” for an employment purpose
- The WCR Act prohibits an employer from obtaining or using (or attempting to obtain or use) a “workers’ compensation document” in the process to select a person for employment.
- A “workers’ compensation document” means any document relating to the worker’s application for compensation or damages under the WCR Act. A claim history summary will therefore be a “workers’ compensation document”.So, an employer could commit an offence by obtaining a prospective employee’s claim history summary from the Regulator to decide whether to employ that person.
- Not to discriminate because of a person’s physical or mental disability
Relevantly, under the Anti-Discrimination Act 1991 (Qld) and the Disability Discrimination Act 1992 (Cth) an employer must not discriminate on the basis of physical or mental impairment in deciding who should be offered employment in a position.
Therefore, an employer could breach the discrimination legislation by deciding not to employ a job applicant because of an injury revealed in the claim history summary.
However, broadly, employers can discriminate on the basis of physical or mental impairment if because of an inherent requirement for the relevant position.
Importantly, unlawful discrimination against a prospective employee is also adverse action under the FW Act.
TIPS FOR EMPLOYERS
Employers should proceed with caution when requesting and using information about previous injuries and claim history of prospective employees.
Although every situation should be assessed on a “case by case” basis, employers should adopt the following:
Focus on obtaining information from the prospective employee about pre-existing injuries or medical conditions – particularly those relevant to the position for which the person is applying.
Ensure any request for prospective employees to provide information about pre-existing injuries or medical conditions is carefully worded and meets the relevant statutory requirements. This will improve the prospect of preventing employees who knowingly make false and misleading disclosures from receiving workers’ compensation.
Exercise caution when considering the information provided by prospective employees about pre-existing injuries or medical conditions. Avoid deciding not to employ a person because of an injury that is not relevant to their ability to perform an inherent requirement of the position.
Carefully consider whether you need to request a prospective employee’s claim history summary from the Regulator. You may need to be able to establish that you did not use the fact of previous claims to decide whether to employ the person.
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