When the State Government amended the Workers’ Compensation and Rehabilitation Act from October last year, it provided a legislative entitlement to employers to obtain a WorkCover claims history for a prospective employee. The mechanism was intended to benefit business through enabling them to be fully aware of a worker’s previous injuries and claims history and it was thought it would enable business to manage its risks and avoid increased costs through absenteeism, WorkCover claims or work restrictions.
It turns out, however, that these changes may in fact have exactly the opposite effect and it may end up increasing cost to business through increasing the economic loss that will be suffered by any worker who is injured in the course of their employment.
In recent decisions of both the District and Supreme Courts, trial judges hearing claims involving work injuries have expressly referred to the new obligation on a worker to disclose their WorkCover claims history to a prospective employer and have observed that this of itself will impair their earning capacity in the future simply because they had the misfortune of suffering from a work related injury.
As a result, in both of these recent decisions, Judge Baulch SC in the District Court and Justice McMeekin in the Supreme Court have made higher awards to injured workers for future economic loss, than they otherwise would.
There is an obvious tension between the interests of the employer in knowing the full workers’ compensation history of a prospective employee, and the interests of the injured employee who is just trying to do their best to get back to work after being off due to an accident. I am not sure what the answer is but, it may be that the new provisions are not going to provide the benefits to employers that the Government thought that they would.
Schultz Toomey O’Brien Lawyers
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