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Impacts of pre-existing injuries or conditions on your claim

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What is a pre-existing condition? What is considered a pre-existing condition?

What is considered a pre-existing injury or condition is set out in the legislation of each state.

When it comes to a workers’ compensation claim in Queensland, it’s covered in section 571A of the Workers’ Compensation and Rehabilitation Act 2003 (Qld). In Victoria, it’s covered in the Workers’ Compensation and Rehabilitation Act 2013 (Vic).

In general, a pre-existing injury or condition refers to an injury, illness or medical condition that exists during the period of the employment process (i.e., when you’re applying for a job) that you would suspect, or ought to reasonably suspect, would be aggravated by performing the duties of the job.

For example, if you have a herniated disc in your back and the job you’ve applied for involves manual labour and heavy lifting, you’d be recognised as having a pre-existing injury.

Note: The definition of a pre-existing condition is widely seen as the same in other areas of personal injury law including CTP, TAC, public liability and also superannuation insurances.

Do I have to disclose pre-existing injuries or former WorkCover claims to a new employer?

It is recommended to disclose pre-existing injuries to a prospective employer. You might assume that your medical history is private and therefore your boss does not need to know about what injuries or illnesses you have (whether or not they are work-related).

But if you aggravate a pre-existing condition at work and didn’t tell your boss about it before they hired you, you may not be eligible to claim WorkCover compensation or damages.

In fact, when you apply for a job and it’s requested in writing by the hiring employer, you must disclose any pre-existing injury that you know of that could reasonably be seen to become aggravated by performing the job.

However, if you were hired before you knew about the condition, or before you told them, or before you were asked to tell them, you may still be entitled to a WorkCover compensation claim.

Can you claim WorkCover for a pre-existing injury? Can you sue for a pre-existing injury?

It’s a common misconception that an injured worker with a pre-existing injury or disease can’t claim entitlements under the WorkCover scheme. While sometimes they don’t help your case, pre-existing injuries and conditions exist in many forms.

Like many people, you may have a degenerative disease of your spine, a dodgy knee that has given you trouble from your days on the football field, or you may have underlying depression completely unrelated to your employment.

Fortunately, the mere presence of these pre-existing conditions will not prevent you from lodging a WorkCover claim or accessing various entitlements, including weekly statutory payments, medical and like expenses and potentially two lump sum claims.

It’s also worth noting that it isn’t necessary to prove that your underlying pre-existing condition is work-related. You only have to prove that you’ve suffered a “recurrence, aggravation, acceleration, exacerbation or deterioration” of your pre-existing condition, and that your work is contributing to the worsening of your injury.

In saying this, while the existence of a pre-existing condition doesn’t prevent you from accessing WorkCover, it is likely to make your claim more complicated.

The same goes for pre-existing injuries aggravated in a car accident such as a whiplash injury with a pre-existing condition – you’ll likely still be able to claim, but the amount of compensation you receive may be limited.

Tips to minimize the impact of a pre-existing condition and navigate the insurance process

Here are a few helpful tips to minimise the impact of a pre-existing condition and navigate the insurance process.

  • Be up front

If you’re considering claiming WorkCover for a pre-existing injury, it’s important that you make a full and frank disclosure of the nature and extent of your pre-existing condition.

Should you fail to adequately disclose all the details of your pre-existing condition, as mentioned above, the type and amount of compensation you receive may be limited or restricted entirely.

  • Explain to your treating doctor how and why your condition has worsened

Just like with any WorkCover claim that’s lodged, ones that involve a pre-existing condition are likely to be forensically scrutinized by WorkCover. By this we mean it’s likely that in particular, your treating health practitioners’ records will be examined closely.

To have the best chance of having your claim accepted, it’ll be handy for your doctor’s notes to reference what aspects of your employment are contributing to the worsening of your condition.

This could be as simple as lifting a heavy box at work, a modification to your duties where you’re on your feet more often or your increased stress due to the demands of management.

  • Seek legal advice

Having a pre-existing condition can make your personal injury claim very complex, so it’s important to seek legal advice. It’s common for WorkCover claims to get rejected on the basis of a pre-existing injury, and a lawyer will be able to fight for you to dispute adverse decisions.

Read more things you should know about WorkCover claims in Queensland and things to know about making a WorkCover claim in Victoria.