This article was written by Insurance Partner, Cameron Seymour and Associate, James Tregenza in collaboration with Employment Partner, Sam McIvor
It is a common lament by employers facing a damages claim by a worker who has aggravated a pre-existing injury: “If I knew about their injury when they applied for the job I never would have employed them!”
Hindsight is 20/20.
Sections 571B and 571C of the Worker’s Compensation and Rehabilitation Act 2003 (Qld) (‘the Act’) gives Employers an opportunity to prevent a claim for compensation or damages if a worker aggravates an undisclosed pre-existing injury, if the employer takes certain steps before employment is confirmed.
When workers are forthright in disclosing pre-existing injuries or conditions, employers may be able to accommodate reasonable adjustments to duties to reduce the risk of aggravation. However, in practice, the highly competitive nature of the job market often compels prospective employees to withhold disclosure of such conditions, fearing such disclosure may adversely affect their employment prospects.
Employers face significant challenges in discharging their non-delegable duty of care to provide a safe work environment and safe system of work when they are not made aware that a worker’s ability to perform their job safely may be compromised due to a pre-existing injury or medical condition. Without this critical information, an Employer cannot reasonably assess or control the risks associated with the worker’s employment.
Given that a significant number of individuals may fail to disclose pre-existing conditions during the employment process, how can an Employer rely on section 571B and 571C of the Act to avoid future claims?
The formal Requirements
Under section 571A of the Act, a “pre-existing injury or medical condition” refers to an injury or condition that exists during the employment process that a person suspects, or reasonably should suspect, could be aggravated by performing the duties required by the job.
Prospective employees do not have a positive obligation to disclose any further information unless requested by the Employer in writing.
Employers must request, in writing, details of any pre-existing injuries or medical conditions that could be aggravated by the duties of the job. The request will need to include:
- The nature of the duties involved in employment. This can be satisfied by providing a detailed and comprehensive position description in the job advertisement or prior to the employment process.
- A statement notifying the worker that if they knowingly make a false or misleading disclosure they will not be entitled to claim compensation or damages for an event that aggravates that condition.Â
However, a prospective worker is not disentitled under these sections of the Act if the worker is engaged before they have had a reasonable opportunity to comply with the request for disclosure.
We recommend Employers include a clear statement in their pre-employment materials, before a new employee accepts an offer, along the following lines:
By completing this section, you agree and confirm you have read the relevant Position Description and associated employment related duties. You must comply with our reasonable request to provide your relevant medical history as a pre-condition to employment pursuant to s571B of the Workers’ Compensation and Rehabilitation Act 2003. Please disclose all pre-existing injuries and medical conditions (if any) of which you are aware that could reasonably be aggravated by performing the employment related duties. Failure to disclose, or providing any misleading information will prevent you from claiming compensation or damages for an aggravation of such injury or condition.
If a prospective employee is not specifically asked in writing about their medical history, which may be reasonably aggravated by the work duties they are required to perform, the worker might not reasonably appreciate the significance of their pre-existing injury or condition.
Implication for Workers who fail to disclose
If an Employer satisfies the criteria and a worker fails to disclose a pre-existing injury or condition before commencing employment and later claims a work-related aggravation, the Employer can inform WorkCover of the steps taken to request disclosure and refer to sections 571A-571C of the Act. WorkCover will consider this when deciding whether to accept the claim.
The Employer must prove the worker knowingly made a false or misleading disclosure, which is a high bar to clear, as many conditions may be asymptomatic or undiagnosed, or the worker may assume given the passage of time or a medical clearance, that they have recovered from an earlier injury. It is also possible that any subsequent injury is not an aggravation of an earlier condition, but a separate, discrete injury.
The impact of sections 571B and 571C of the Act has not been tested in court, and it remains uncertain how a court would address the issue. One thing that is certain, unless an employer prepares themselves by complying with the requirements set out above, they might rue a missed opportunity to defeat a claim at the start.
For more information, contact Mullins Lawyers to discuss your rights and responsibilities under the Workers’ Compensation and Rehabilitation Act 2003 (Qld).