Pre-existing injuries – a case of don’t ask, don’t tell?
For many years now, work-related aggravations of pre-existing conditions have been covered by WorkCover, regardless of what caused the original pre-existing condition. Naturally only the aggravation itself is covered and not the pre-existing condition, which makes sense – just like car insurers, WorkCover will pay for accident-related damage only, and not general wear and tear or old damage.
But what can employers do in the situation where the pre-existing condition makes the worker a lot more vulnerable than his or her co-workers, and a work-related aggravation therefore becomes a lot more likely, or perhaps even inevitable?
The obvious answer is – not much if they don’t even know about the pre-existing condition!
Many employers have told me over the years that they never would have employed a particular worker in the first place if they knew the worker was a high risk of re-injury. This is a bit unfair in cases where a simple, minor modification of the worker’s duties could have avoided the re-injury without compromising the worker’s efficiency, but there are certainly cases where this is realistically impossible i.e. the combination of the pre-existing condition and the job duties genuinely makes for “an accident waiting to happen”.
In situations like that, it’s not simply a matter of the employer wanting to avoid the expense of a WorkCover claim – employers have a duty to ensure they minimise the risk of harm to their workers as far as is practical, and sometimes the only sure way to do this is to refuse to employ them in a role for which they are medically unsuited.
The difficulty of course is that sometimes prospective workers aren’t completely honest about their pre-existing conditions – human nature being as it is, many cash-strapped jobseekers would rather get the work now and hope for the best in terms of how they will cope health-wise later. After all, nothing may end up going wrong and the whole thing might turn out to be a non-issue anyway.
In October 2013, therefore, the government of the day introduced Sections 571A to D into the Workers’ Compensation and Rehabilitation Act 2003. Section 571B imposed an obligation on workers to disclose any relevant pre-existing conditions during their recruitment process, and Section 571C denied entitlement to WorkCover benefits for any work-related aggravation of a pre-existing condition that hadn’t been disclosed.
In addition, Section 571D restored the old (pre-2005) right of employers to access the WorkCover histories of prospective workers.
With the change of government in January 2015, Section 571D was repealed but Sections 571A, B and C remain in force to this day.
So that being the case, and if we accept that a fair percentage of people don’t disclose their pre-existing conditions when seeking employment, why is it that WorkCover still accepts so many claims for aggravations of pre-existing conditions?
The answer lies in the very strict wording of Sections 571B and C – unless employers ask the right questions in precisely the way specified in Section 571B, then Section 571C simply won’t operate and WorkCover will have no option but to accept the claim regardless of the non-disclosure.
An employer seeking to convince WorkCover to reject a claim based on Section 571C should be aware of the following:
The prospective worker does not have to disclose anything unless the employer makes a request in writing;
This written request must include a very detailed and comprehensive description of the duties potentially required by the employment – this can be difficult to achieve in practice but if it is not done properly, the worker could potentially argue that he or she did not understand exactly what would be required and therefore genuinely believed the pre-existing condition was not relevant to this particular role;
The written request must also include a warning that if the prospective worker knowingly makes a false or misleading disclosure, then Section 571C will prohibit any claim for an aggravation of the undisclosed condition;
The written request must be made (and naturally the response received) before the employment is confirmed, otherwise the worker could potentially claim they didn’t have a reasonable opportunity to make proper disclosure; and
Even then, it will be necessary to prove the false and misleading disclosure by the prospective worker was made knowingly e.g. most people over a certain age will have some degeneration in their spines but may be completely unaware of it for as long as it remains asymptomatic.
There will always be WorkCover claims for aggravations of undisclosed pre-existing conditions, but a better understanding of the requirements of Section 571B may help employers avoid the financial impact of pros pective workers’ prior injuries and, perhaps, even save those workers from potentially serious re-injury in the process.
Contact Hughes & Lewis Legal for further details on your rights and responsibilities as an employer under the Workers’ Compensation and Rehabilitation Act 2003.
About the author
Jason Lewis is a Director of Hughes and Lewis Legal
Contact
jason@hughesandlewis.com.au