Workers compensation is insurance that businesses take out to cover them if workers suffer a workplace injury. It provides benefits such as lost wages and medical expenses, and even a lump sum payment for permanent impairment.
But it’s not as simple as it sounds.
Some employees have injuries and conditions when they start their job, which may be worsened by their work. Or they may recover from a workplace injury only to re-injure themselves again later. How do you know if you’re covered?
You can make a workers compensation claim for a pre-existing injury if your current job makes it worse. But this is a more complex process and many of these claims get rejected. So you should get advice on whether you’re entitled to compensation for your specific circumstances.
Understanding pre-existing conditions
Each Australian state and territory has workers compensation law that defines pre-existing injury. Generally it’s an injury or condition that existed before you applied for a role, and that you believe might be made worse by performing the tasks in the role.
For example, if you have an old shoulder injury and you’re applying for a job that involves lifting heavy boxes, you would be considered to have a pre-existing injury.
This also applies when you injure yourself at work, recover from that injury and then injure yourself again at work.
There is some language that’s important to understand in this area. Your pre-existing injury or condition may recur or deteriorate, or be aggravated, accelerated or exacerbated by the duties of your role. What do these words mean?
- Recur – where a pre-existing injury or condition happens again, just as it did before.
- Aggravate – where a pre-existing injury or condition gets worse, compared to its prior state (e.g. worse pain than you had with the original injury).
- Accelerate – where a pre-existing injury or condition gets worse at a faster rate than it would have if you hadn’t been doing your job.
- Exacerbate – where the symptoms or consequences a pre-existing injury or condition become more severe.
- Deteriorate – where a pre-existing injury or condition has new or worse symptoms than before.
Are pre-existing injuries covered under workers compensation?
Yes. Many workers don’t realise that workers compensation covers more than new injuries. It also covers recurring, aggravated, accelerated, exacerbated and deteriorated pre-existing injuries or conditions.
Disclosing a pre-existing condition
When you apply for a job, the employer can ask you whether you have any pre-existing injuries or conditions. If asked, you must disclose anything that could be worsened by performing the duties of the role.
If they don’t ask you this question, it’s still recommended that you disclose this information up front. If you aggravate a pre-existing condition at work and didn’t tell your employer about it before they hired you, you may not be eligible to claim workers compensation.
The employer’s rights and responsibilities
When you apply for a job, the prospective employer:
- can decide during the hiring process whether or not to ask you to disclose any pre-existing injuries or conditions that may be aggravated by the role duties
- must request that disclosure in writing, including an accurate and specific list of the duties that you would do in your role (so you can make an informed decision about whether these duties might aggravate your injury or condition)
- must warn you that you may not be entitled to workers compensation or damages if you don’t disclose any relevant conditions, or if you provide information that’s false or misleading.
The prospective employer is not allowed to:
- tell anyone about or share the information you provide without your consent
- use what you tell them for a purpose other than the employment process.
Can I claim for pre-existing injury?
Having a pre-existing injury or condition shouldn’t prevent you making a workers compensation claim for benefits such as weekly payments, medical expenses and, where relevant, lump sum claims for serious injury.
This is true whether the original injury occurred outside of work or was a work-related injury.
If the original injury occurred in the workplace, you can have a WorkCover claim reopened if the injury recurs or is aggravated. You just need to provide new medical evidence that shows how your condition has changed and that your work has caused it.
Making a successful claim
To make a successful workers compensation claim for a pre-existing injury or condition, you need to prove several things:
- You were a worker.
- You had a pre-existing injury (not necessarily work related).
- Your pre-existing condition recurred, deteriorated or accelerated, or was aggravated or exacerbated.
- Your work significantly contributed to your injury getting worse.
Workers compensation claims relating to pre-existing conditions are assessed very carefully. To have the best chance of a successful claim, provide medical records from your doctor showing what part of your job is causing your condition to worsen. Perhaps something about your role has changed, such as new tasks or increased stress.
What if you don’t disclose your condition
If you’re asked to disclose any pre-existing injuries or conditions and don’t do this, it could affect your eligibility for benefits later. However, there may be other circumstances where you’re still eligible to claim.
For example, if you were hired before you knew about the condition, before you told them or before you were asked to tell them, you may still be eligible.
Even if you’re not eligible to claim because of failure to disclose, you may get access to income protection payments or total and permanent disability payment through your superannuation if you meet the criteria. These are both no-fault claims.
So you should never assume that you’re not eligible for any compensation or benefits. Get professional legal advice to find out all your options.
How Main Lawyers can help
Having a pre-existing injury or condition doesn’t make you ineligible for workers compensation if your job makes that injury worse. But it does make the claim more complicated.
We have years of experience in helping clients in this situation. Contact us today for a free, no-obligation discussion to see how we can help you.
