Many job applicants don’t disclose their pre-existing illness or injury out of fear it would stop them from getting the job. Many also believe their pre-existing condition would make them ineligible for workers compensation if they were injured on the job.
However, these things aren’t necessarily true. Anti-discrimination laws protect applicants from discrimination due to a disability or medical condition. If the applicant can perform the duties that the job requires, the injury or illness shouldn’t affect the employer’s decision.
Similarly, an employee with a pre-existing condition may be entitled to compensation if the condition is aggravated by the work.
This area of the law is complex and every situation is different. Read this article for general advice on disclosing an illness or injury to your employer and get in touch with us to discuss your unique circumstances.
What is workers compensation?
By law, employers must have workers compensation insurance (or WorkCover). This covers them if a worker becomes unwell or is injured in the course of their work. The worker can claim compensation for lost wages, medical costs and other expenses while they recover.
Importantly, workers compensation covers a pre-existing injury or medical condition that recurs or gets worse due to the job (i.e. recurrence, aggravation, acceleration, exacerbation or deterioration). This makes disclosing an illness or injury to your employer important as they will need to know how they can help you to prevent your condition from getting worse due to your work.
What is a pre-existing condition?
The Queensland Human Rights Commission states that a pre-existing injury or medical condition is an injury or condition that’s present during the recruitment process.
This includes an injury or condition that the worker has claimed workers compensation for previously.
Can employers ask about pre-existing conditions?
Generally, an employer can decide whether to ask about pre-existing injuries or illnesses during the recruitment process. But it’s in their best interests to do so, as a pre-existing injury or condition could be aggravated by the job tasks.
Under the Workers’ Compensation and Rehabilitation Act 2003, an employer is allowed to ask you to disclose any pre-existing injury or condition that might be aggravated by the tasks involved in the job. But there are rules to follow.
The employer must:
- make the request in writing
- give you a list of duties required as part of the role
- warn you that, if you provide false or misleading information, you may be ineligible for workers compensation if an incident aggravates your condition.
An employer can also request a medical examination if they’re not sure whether you can do the job safely. They will tell the doctor all the tasks you’ll need to perform and the doctor will assess whether you can perform them.
They will also advise on measures the employer can take to help you perform the tasks safely. Under the Disability Discrimination Act 1995, employers must make ‘reasonable adjustments’ to help employees who have pre-existing conditions or disabilities perform their role comfortably, effectively and safely.
Disclosing your pre-existing condition
Just as it’s in the employer’s best interests to ask about pre-existing conditions, it’s in your best interests to answer the question honestly.
This will ensure your safety at work and protect you if your condition is aggravated and you need to claim WorkCover compensation.
Provide as much detail about the condition as possible so it’s on record. By disclosing an illness or injury to your employer it can help to ensure your best interests are looked after while avoiding further damage that could be aggravated by the duties of the role.
Remember that false or misleading claims could affect your eligibility for compensation later.
Using your disclosed information
Under state and federal anti-discrimination law, there are strict rules around how employers can use applicant information when deciding whether to award them the role.
Specifically, they can’t use your disclosed information about injuries and medical conditions to discriminate against you. They may use it only to decide:
- whether you can perform the tasks of the role
- if they need to make reasonable adjustments to assist you to perform the role
- whether there are any health and safety issues to be aware of.
If you believe you have been discriminated against during the recruitment process, you can contact our team at Main Lawyers to discuss your options.
Things that can go wrong
If something does go wrong in the workplace and you aggravate a pre-existing injury, you might believe you’re not eligible for workers compensation. But every situation is different and many factors are considered to determine your eligibility.
The employer may have made mistakes that created the situation. For example:
- They may have provided insufficient information for you to decide whether your pre-existing condition could be aggravated by the job.
- They may not have asked you to disclose pre-existing injuries or illnesses in the recruitment process. If they hired you before asking you to disclose this information, you may be entitled to claim compensation if something goes wrong.
- They may have asked for this disclosure verbally, rather than in writing. By law, they must provide a form for you to complete as part of your application.
- They may not have warned you in writing that, if you provide false or misleading information, you may not be eligible for workers compensation if your injury or condition is aggravated later.
- They may not have given you enough time to answer the question fully. Generally you should have a few days to complete the form.
- They may have changed the tasks that you need to perform in your role and not accounted for the pre-existing condition you disclosed when you were hired.
- They may provided inadequate training or supervision in your role, which led to the aggravation of your pre-existing condition.
Eligibility for workers compensation claim
As you can see, you may still be eligible to make a workers compensation claim if you have a pre-existing injury or medical condition. You just need to meet certain criteria.
Firstly, as with any workers compensation claim, you need to prove that you were a ‘worker’ under the legislation.
Then you must prove that your pre-existing condition was aggravated, accelerated, exacerbated or deteriorated – and that your work contributed significantly to this.
This is essential, as you won’t be eligible for workers compensation if your condition hasn’t gotten worse during or due to your work. For example, your condition may have become worse over time, but not necessarily because of your work.
Existing WorkCover claims
If you’ve already had a work-related injury (either with your current employer or a previous one) and an work incident occurs to make that injury worse, you may need to submit a new workers compensation claim.
However, if no incident occurred to aggravate the injury, it’s a continuation of the existing injury and stays under your original claim.
Making a successful claim
Unfortunately insurers often reject workers compensation claims relating to pre-existing injuries or medical conditions. So it’s important to get legal assistance to give you the best chance of a successful claim.
At Main Lawyers, our team has a strong track record of success with these types of claims and know what insurers need to make a decision in your favour.
Medical records are essential to any successful claim. You need to prove that your pre-existing condition was aggravated or accelerated by your employment. Your doctor can provide a written opinion about what occurred and the impact on your injury. They can help you show that you needed the medical treatment because of your work.
You should also ensure that you’re covered by current WorkCover medical certificates. Your doctor can issue these and they usually last 28 days. The certificate outlines the treatment you need, what activities you can and can’t perform, and referral to a rehabilitation provider.
If you’re still recovering from your aggravated injury or illness, you might not be in a state to focus on these tasks. That’s where having a legal professional can be a life saver. We can obtain the medical records and evidence you need to prove your claim, while you focus on getting better.
If you’re not eligible for workers compensation
When we investigate your situation, we may determine that you’re not eligible for workers compensation. Perhaps you didn’t disclose your relevant pre-existing injury during the recruitment process or your condition doesn’t meet the criteria.
However, this doesn’t mean you’re on your own without financial assistance while you recover. We can help you find other pathways to assistance.
For example, you might be able to get income protection payments through your superannuation. Or you might be eligible for a total and permanent disability claim if your condition prevents you from ever working again.
There are several options available if you’re not eligible for workers compensation, so get the right advice from a professional.
How Main Lawyers can help
When you’re disclosing an illness or injury to your employer it’s important to make sure you know your rights. At Main Lawyers, our workers compensation lawyers have helped many employees with aggravated pre-existing injuries or conditions get the financial assistance they need while they recover and get back to work.
We will discuss the details of what happened to you and give you all your options. And, with our ‘no win, no fee’ arrangement, you don’t need to pay legal costs until you get your settlement. So you’ve got nothing to lose by contacting us for a free consultation today!