On 29 October 2013 the Workers' Compensation and Rehabilitation and Other Legislation Amendment Act 2003 (Qld) was passed.
The Act makes a number of changes to the Workers' Compensation and Rehabilitation Act 2003 (Qld) that will benefit employers, including:
- employers may request a prospective worker disclose any pre-existing injury or medical condition that they believe or should suspect would be aggravated by the duties in the position applied for;
- employers may access a prospective worker's claims history for pre-employment purposes;
- for psychiatric or psychological injuries, compensation is only payable where employment is the major significant contributing factor;
- a threshold of 5% permanent impairment for access to common law damages has been introduced; and
- workers lodging a common law damages claim face mandatory referral to an accredited return to work program.
NOTIFICATION OF PREVIOUS INJURIES OR MEDICAL CONDITION
An employer is entitled to ask a prospective worker to disclose injuries or medical conditions which a person knows or reasonably suspects would be aggravated by the duties of the prospective employment.
The request must be in writing:
- informing the prospective worker of the nature of the duties of the employment; and
- advising that if the worker knowingly makes a false or misleading disclosure, the worker will not be entitled to compensation or damages for an event that aggravates the pre-existing injury or medical condition.
The prospective worker is not required to comply if he or she is engaged by the employer before having a reasonable opportunity to comply.
A prospective worker who makes false or misleading disclosure in relation to their relevant pre-existing injuries or medical conditions will not be entitled to compensation or to seek damages for any event that aggravates the injury or condition.
The Act also enables a prospective employer to apply to the Workers' Compensation Regulator for a copy of a prospective worker's claims history summary. The application must be in the prescribed form and requires the prospective worker's consent. The summary can only be used by the employer for the purposes of considering and selecting a person for employment; the existing prohibition concerning using or accessing workers' compensation documents for general employment purposes remains in effect.
These changes will enable prospective employers to obtain more information about a prospective worker, however it is important that employers:
- comply with the specific provisions of the Act to obtain and use this information lawfully; and
- bear in mind the other risks associated with obtaining and using this information, such as the risk of breaching discrimination and general protections laws when assessing a prospective employee's suitability for employment.
PSYCHIATRIC AND PSYCHOLOGICAL INJURY
To be eligible for workers' compensation for a psychiatric or psychological injury, a worker must now demonstrate that the psychiatric or psychological disorder (or an aggravation of an existing disorder) arose out of or in the course of employment, and that the employment is the major significant contributing factor to the injury or aggravation.
The intention is to exclude situations where a pre-existing condition is the major issue, or where there are multiple factors and employment is not the major one.
The Act maintains the current exclusions for reasonable management action.
The Act changes the method of assessing permanent impairment from 'work related impairment' to a 'degree of permanent impairment' (DPI), and directs the Authority to make guidelines for assessing a worker's degree of permanent impairment.
Multiple physical injuries resulting from a single incident will be assessed together to make a combined DPI. However, psychological injuries cannot be combined with a DPI for a physical injury.
Only workers assessed as having a DPI greater than 5% (or a terminal condition) are entitled to bring claims for common law damages.
Workers who do not meet the DPI threshold are still be entitled to seek damages from any other non-employer entity responsible for the injury. Therefore claims against host employers and principal contractors on mining and construction projects may increase in number or scope, and those entities will no longer be able to claim contribution against the employer or WorkCover.
RETURN TO WORK PROGRAMS
WorkCover and self-insurers are now required to refer a worker who has lodged a Notice of Claim, to an accredited return to work program of the insurer unless the insurer is satisfied that the worker will not be able to participate because of the injury. Return to work programs may include vocational assessments, re-skilling, retraining, job placement and host employment.
WorkCover and self-insurers must also take steps they consider practicable to coordinate the development and maintenance of a rehabilitation and return to work plan in consultation with the injured worker, the worker's employer and treating healthcare providers.
There are increased obligations on employers to assist WorkCover and self insurers to get injured workers back to work and to keep records and documents about workers and contracts for the performance of work for at least three financial years.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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