FibreHR Blog

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Workers Compensation for Pre-Existing Injuries

Lisa Spiden - Friday, April 17, 2015


fibreHR recently attended an Advanced Work Cover Claims course presented by a legal firm which brought attention to the legislation surrounding whether an employee has an entitlement to workers compensation where a pre-existing injury or disease exists.  The legislation states that employees have an entitlement to compensation where work is found to be a significant contributor to the recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease.

Work Cover claims can be extremely costly to a business so it is important that businesses take steps to protect themselves against work cover claims wherever possible. One way of reducing liability is by ensuring employees are asked to disclose any pre-existing injury or disease that relates to or may impact the role they are applying for. This information can assist in disputing a claim where the business believe that an injury, disease or a recurrence, aggravation, acceleration, exacerbation or deterioration to a pre-existing condition not as a result of work but instead due to a pre-existing injury or disease.  It is important to note that where an employer wishes to dispute a claim, such disclosure may form part of an investigation arranged by the work cover agent and would be considered in conjunction with a range of other factors to determine whether the claim is accepted or rejected; therefore the disclose should not be solely relied upon.

There is a very fine line that needs to be walked in asking for information about pre-existing injuries or medical conditions. If the information is not dealt with correctly, the actions or inactions of an employer may constitute discrimination where it is found that the action or inaction was as result of becoming aware of the pre-existing medical information. You can certainly ask if the employee has a pre-existing injury or medical condition that may prevent them from completing the specific job for which they have applied however, to do this you would need to outline the specific duties required in the role e.g. sitting for four or more hours continuously or lifting up to 5kg packages. As the requirements for positions vary significantly, a generic form may not suffice. You cannot discriminate against a person for a pre-existing injury or medical condition that does not affect their ability to perform the inherent requirements of the role. It is very important that this is understood otherwise you may find yourself defending a discrimination claim.  

fibreHR recommends updating your current Application form and New Starter Form to contain a disclosure statement regarding pre-existing injuries, this statement needs to include relevant clauses of the Workplace Rehabilitation & Compensation Act 2013 in order for the disclosure to be considered valid. Within this disclosure statement we recommend stating key duties of the role and requesting employees outline their capacity to perform these duties. The key duties must be comprehensive in nature and should include things such as sitting at a desk for extended periods of time, manual handling, driving extended distances and tasks of a repetitive nature such as typing, where relevant to the role. Whilst some duties may be seen to be standard requirements such as standing or sitting, it is important these are outlined in the role in order to understand whether any pre-existing injury or disease may be affected by such duties.

fibreHR are able to review and update your Application form and New Starter Form with a pre-existing disclosure statement which meets legislative requirements. For further information or to arrange a review of your current new starter forms, please give us a call 03 9205 5800.

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