Requesting a prospective employee’s previous injury history
Recent amendments to Queensland Workers’ compensation legislation provides employers with a right to request, from prospective employees, a detailed history of all pre-existing injuries or medical conditions that:
1. Exist at the time of an employee’s application process; and
2. Could be considered likely to be aggravated by performing the tasks expected of the job.
If an employer wishes to request a history of all relevant pre-existing injuries and medical conditions, the request must:
1. Be made in writing to the prospective employee and accompanied by a detailed list of the tasks and future duties that the prospective employee would be required to perform during employment.
2. Include a warning that if the prospective employee knowingly supplies false or misleading information, they will not be entitled to compensation for any incident, which aggravates any non-disclosed pre-existing injury or medical condition.
In order for an employee to be denied compensation for failing to disclose information about a pre-existing injury or condition, the following criteria must be met:
1. The employee was requested by the employer during the employment process to disclose any relevant pre-existing injury or medical condition.
2. The employee failed to disclose a pre-existing injury or medical condition, which should have been disclosed having regard to the tasks, which the employer specified (in the request for information) would be required to be performed in the job. This is why it is so important for the employer to provide an explicit and adequate description of duties when making the request.
3. The employee became involved in a work related incident whilst completing one of the duties, which was specified by the employer in its original request for information.
4. As a result of the incident, the employee sustained an aggravation to a pre-existing injury or condition, which should have been disclosed but was not.
If the above criteria are met, and during an incident the employee also sustained other injuries in addition to an aggravation of a pre-existing injury or condition, the employee will not be entitled to any compensation including the additional injuries, irrespective of whether they are related to the aggravation injury or not.
A practical example of the above situation is explained using the fictional scenario below:
A prospective employee has a significant knee injury during his/her application process and does not disclose this to the employer despite been provided with a valid request for all relevant injury history, which is accompanied by a detailed explanation of the tasks that would be required to be performed in the role.
Despite the request, the prospective employee does not disclose their knee injury. The prospective employee obtains employment with the employer and is then involved in an incident at work performing one of the tasks detailed in the employer’s original written request. The incident results in an aggravation to the employee’s knee and a new back injury.
Given the fact that the employee failed to disclose a relevant injury, they will not be entitled to any compensation in respect of the incident. This includes the new injury.
For a pre-existing injury or condition to be considered relevant for a prospective employee to disclose, it must:
1. Exist during the time of the “employment process”. The prospective employee does not have to disclose something that happened ten or fifteen years ago and has completely resolved.
2. Be reasonable for the prospective employee to suspect or reasonably suspect, that the injury or condition may be aggravated having regard to the duties specified by the employer in the request for information. The prospective employee does not have to tell an employer about an injury they have that is unlikely to be aggravated by performing the intended duties. This further reinforces the need for employers to be detailed and specific about the task required in the job when making a request for disclosure.
WorkCover has advised that:
1. They will not make a request for injury history template available for employers, as each job requires distinctly different tasks to be performed by employees and therefore, a general template would not be appropriate. Sync or Swim can help you develop template specific to your business.
2. The prospective employer must be explicit in the request for information when advising of the tasks that the prospective employee would be required to perform in the role, such as defining weights and exposure to tasks.
For instance, merely “lifting boxes” will not be a sufficient task description. The description must be adequate to allow the prospective employee to make an informed decision about what information they need to disclose. The more detailed the description by the employer is, the harder it will be for an employee to argue that it was reasonable to not disclose a pre existing injury or condition on the grounds of relevance.
An adequate and explicit description of duties could read as follows-
The employee will be required to lift boxes of a maximum weight of 5kg. These boxes will be lifted from bench height and will need to be carried approximately 5 m to be loaded on a vehicle which will require the box to be lifted to shoulder height. This task will be undertaken for approximately two hours of a 8 hour working day.
An employer may also apply to the Queensland Workers’ Compensation Regulator for a copy of the prospective employee’s entire Workers’ Compensation Claims history by completing the prescribed WorkCover form and obtaining the prospective employee’s consent to release the information. Employers must be careful and consider relevant antidiscrimination laws in this area.
It is important to note that the request for information only applies to prospective employees who are applying to work in your business and not your current staff members.
This is just one of the many changes to Queensland Workers’ Compensation legislation that has taking place.
Sync or Swim can assist your business with the following:
· Developing and implementing systems for your business to ensure essential WHS record keeping processes are in place, and are streamlined to maximise productivity.
· Drafting a detailed list of specific tasks relevant to a prospective employee’s position.
· Assisting your business by drafting practical safe work procedures and safe work method statements.
· Review your business practices to ensure the business meets all of its WorkCover obligations.
If you have any questions, don’t hesitate to give one of our friendly specialist a call on 1300 851 281.
Article by: Paul Bright, Business Development and Compliance Specialist.