The recent amendments to the Workers' Compensation and Rehabilitation Act 2003 (Qld) (WCRA) allow an employer during the hiring process to:
- Request that a prospective worker disclose pre-existing injuries or medical conditions.
- Ask the Regulator for a copy of a prospective worker's claims history summary, with the prospective worker's consent.
While the amendments appear to benefit employers and workers' compensation insurers at first glance, employers should proceed with caution in making changes to the way they approach the hiring process.
Requesting disclosure from a prospective worker
An employer's request for disclosure must:
- be in writing
- include the nature of the duties the subject of the employment
- state that, if the prospective worker knowingly makes a false or misleading disclosure, then the prospective worker will not be entitled to compensation or to seek damages for any event that aggravates the pre-existing injury or medical condition, and
- give the prospective worker a reasonable opportunity to comply with the request.
What is a 'pre-existing injury or medical condition'?
'Pre-existing injury or medical condition' is defined as "... 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."
The term 'existing' is not defined, although it seems to suggest an injury or condition that, at the very least, has not resolved prior to the employment process. The explanatory memorandum seems to contemplate a broader interpretation which does not distinguish between suspicion of a live injury/condition, and a resolved injury/condition, being aggravated.
What is false or misleading disclosure?
'False or misleading disclosure' is defined as "... any disclosure that would lead a prospective employer to reasonably believe that the duties the subject of the employment would not aggravate the prospective worker's pre-existing injury or condition."
The issue of false or misleading disclosure is likely to be highly contentious given the consequences. It is to be expected that a review body or a court will not deprive a worker of his or her rights to compensation and/or damages lightly, with disputes likely to be concerned with:
- The worker's awareness of the pre-existing injury or condition during the employment process and whether he/she 'knowingly' made 'false or misleading disclosure'. Proving the subjective knowledge of an individual is always difficult.
- Whether the injury was 'existing' during the employment process. Proof that the injury was 'existing' might require proof that the injury or condition was symptomatic during the employment process.
- Whether the worker was given enough information about the duties to enable the worker to make proper disclosure. This will require sufficient detail about the critical demands and requirements of a role to be given to enable the prospective worker to make a properly informed decision regarding disclosure.
- Whether the injury the subject of the claim is an aggravation of a pre-existing injury or condition, or a new injury. Medical opinion can vary on these types of issues.
The workers' compensation insurer will bear the evidentiary onus, and each of the above requirements may be difficult to meet.
Knowledge of a relevant pre-existing injury or condition
There are two variations to the standard of care which flow from pre-existing injuries or conditions:
- If a worker has a particular vulnerability which is not reasonably foreseeable, then a system of work or plant or equipment which would not have harmed a person without the vulnerability will not be the basis for a finding of breach of duty for an injury arising from that vulnerability, provided the employer was not aware of it.
- However, if the employer knew that the worker suffered from a particular vulnerability, a special or higher duty is then owed because of that knowledge.
Employers should be mindful of the potential for increased exposure in common law negligence in circumstances where disclosure has been made of pre-existing injuries or conditions.
Further, employers must also be careful not to contravene the Fair Work Act 2009 (Cth), the Disability Discrimination Act 1992 (Cth) and the Anti-Discrimination Act 1991 (Qld), all of which have prohibitions on employers taking discriminatory action against prospective employees on the basis of disability or impairment.
For instance, if an employee discloses a pre-existing injury and it can be established that an employer has discriminated against or otherwise treated that employee less favourably based on their pre-existing injury, the employer may be liable for compensation.
Some key points employers should consider are:
- Simply requesting information about a worker's pre-existing injury or medical condition does not make it lawful for an employer to then take discriminatory or adverse action against a worker based on that information.
- If a prospective employee establishes that an employer has taken adverse action against him or her on the basis of a pre-existing injury, the employer will then bear the onus of proof to show that it did not take adverse action against the employee because of that injury.
- Employers should be reconciling the changes in the WCRA with their hiring policies, and should be making detailed records of interviews and application processes where a worker discloses a pre-existing injury.
- Employers should ensure that requests for information about pre-existing injuries and medical conditions strictly comply with the WCRA and discrimination legislation.
In summary, before implementing any changes to their hiring process, employers should bear in mind that:
- The evidentiary requirements for an insurer to establish that a worker has no entitlement to compensation or damages are particularly onerous, and are likely to only be satisfied in the clearest of circumstances.
- Knowledge at the outset of an employee's pre-existing vulnerabilities may lead to a higher standard of care for the employer at common law, and a greater liability exposure.
- Care must still be taken not to contravene the Fair Work Act 2009 (Cth), the Disability Discrimination Act 1992 (Cth) and the Anti-Discrimination Act 1991 (Qld) when using information obtained under the changes to the WCRA.
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.