The recent amendments to the Workers’ Compensation and Rehabilitation Act 2003 (Act) introduced some of the most significant changes to Queensland's workers' compensation scheme since the commencement of the Act.
Disclosure of Pre-existing Conditions and Claims History
This is one of the most important changes because employers can now:
access a prospective employee's claims history with WorkCover (with the prospective employee's consent)
give the prospective employee a written notice:
requesting that the prospective employee disclose all pre-existing illnesses or injuries of which they are aware which could reasonably be aggravated by performing the employment related duties
informing the prospective employee that failure to disclose or making a false or misleading disclosure, means that the employee may not be entitled to compensation under the Act for an aggravation of the pre-existing illness or injury.
To make the notice effective, the employer must set out the relevant duties that the prospective employee will be required to undertake. This means the prospective employee can then consider any pre-existing illnesses or injuries which might be affected by the role.
This amendment does not impact anti-discrimination or adverse action provisions. It is not a fool-proof excuse for refusing to employ a prospective employee because of an impairment. However, being required to disclose a pre-existing illness or injury will assist employers in managing the risks of aggravation. The other advantage is that if the prospective employee does not accurately disclose information (making it impossible to manage the risk) the prospective employee may be excluded from claiming workers' compensation in the event of that pre-existing condition being aggravated.
Definition of Psychological Injury
A further amendment is to the definition of a compensable psychological injury. Workers are now required to establish that the employment was "the major significant contributing factor" rather than "a significant contributing factor". This new definition may exclude a great number of employees with multiple causal factors for their psychological claim.
Threshold for Common Law Personal Injury Claims
The amendments introduce a 5% whole of person impairment threshold. Unless this 5% threshold is reached, the employee cannot bring a common law personal injury claim for damages. This threshold applies to injuries sustained on or after 15 October 2013 and is designed to protect employers against speculative claims, while allowing genuinely injured workers recourse to the courts.
Employers should review their recruitment process and identify roles with a high risk of injury or aggravation and prepare a notice that can be given to prospective employees for disclosure of pre-existing condition.
Employers must prepare clear task and duties based lists for high risk roles, identifying the inherent requirements for the role, together with the types of pre-existing conditions that put employees at risk.
Employers need to identify the most advantageous time in the recruitment process to issue notices to employees. While this may not be at the initial stage of recruitment, it is likely to be before the final shortlist is determined in order to better manage or obviate the risks of discrimination and/or adverse action claims.