Amendments to the Workers' Compensation and Rehabilitation Act 2003
The Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2013 (effective from 29 October 2013) made key changes to the definition of ‘injury’ for psychiatric/psychological injuries, the threshold requirements for workers to claim common law damages under the Workers Compensation and Rehabilitation Act 2003 (WCRA), and the right of employers to obtain a prospective employee’s claims history and seek information about pre-existing conditions.
Snapshot – what you need to know
The most immediate changes brought about by the Act, and which came into effect on 29 October 2013, are the following:
- the replacement of Q-COMP with the ‘Workers Compensation Regulator’ (the Regulator) and its merger with Fair & Safe Work Queensland
- empowering employers to ask prospective employees, in writing, to disclose any pre-existing conditions they ought reasonably suspect would be aggravated by performing the duties the subject of the prospective employment. When requesting this information, employers must provide information about the nature of the prospective employee’s future duties and the implications of any failure to properly disclose the information
- removing a prospective employee’s entitlement to compensation and damages in the event they fail to disclose, when asked, pre-existing injuries or provide false or misleading information, and subsequently aggravate a non-disclosed pre-existing injury
- empowering employers to request a prospective employee’s claims history from the Regulator, on the condition that such a request is made in the approved form, accompanied by an application fee and is made with the prospective employee’s consent.
In respect of injuries/conditions sustained on or after 15 October 2013 (being the date the Act received Royal Assent), the Act also requires:
- a worker to have a 5 per cent degree of permanent impairment (DPI) in order to make a common law claim. A worker cannot combine physical and psychiatric injuries to reach the 5 per cent threshold
- employment factors must now be the major significant contributing factor to a psychiatric/psychological injury for that injury to be compensable under the WCRA (replacing the concept of ‘a’ significant contributing factor, which remains the test for physical injuries)
- that medical practitioners apply new methods for calculating lump sum compensation under the relevant DPI (replacing the table of injuries).
Sections 571B – 571D of the WCRA provide that a prospective employee’s claims history and pre-existing medical conditions can be used for ‘considering and selecting’ a prospective worker for employment. It will be interesting to see how these provisions will be found to apply, having regard to the prohibitions against discrimination on the basis of a prospective employee’s impairment/disability in anti-discrimination legislation and s 572A of the WCRA, which prohibits workers’ compensation documents being used to select or determine the continuation of employment.
In circumstances where these provisions are yet to be tested, we recommend that employers exercise caution if they decide to seek information from a prospective employee under sections 571B – 571D of the WCRA. We recommend that the employer inform the prospective employee that the request for information has been made under the relevant section of the WCRA, and that the employer carefully document the reasons the information they request from a prospective employee is ‘reasonably required’.
These documented reasons could include, if applicable, the following:
- determining if the prospective employee would be able to safely carry out the inherent requirements of the role, in light of the claims history
- determining what reasonable adjustments could be made for the employee to mitigate the risk of them sustaining further injury in the role
- ensuring the workplace health and safety of the employee and/or their co-workers, given the specific requirements of the role and the claims history.
In making a record of its reasons, employers should carefully consider, and document, the specific need to request a prospective employee’s claims/medical history as against the requirements of the position applied for. A similar exercise should again be undertaken, and documented, once the information is received and when deciding whether or not to offer the prospective employee the position.
The information in this publication is provided for general purposes only. It is not to be relied on as a substitute for legal advice. Crown Law and the Department of Justice and Attorney-General accept no liability for losses caused by reliance on the material in this publication. Formal legal advice should be obtained for particular matters.
Published: 23 January 2014