In Victoria, the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (WIRC Act) provides grounds to disentitle an employee to workers compensation if they suffer a recurrence, aggravation, acceleration, exacerbation or deterioration of a pre-existing injury or disease in the course of their employment. However, for an employer to rely on this provision, they must strictly comply with the requirements of the WIRC Act in respect of pre-employment declarations provided to employees regarding pre-existing injuries and diseases.
Such pre-employment declarations can act as a defence to any such claim, meaning that the employee would be disentitled from accessing the workers compensation scheme.
In summary, s41 of the WIRC Act provides that an employer must, in writing, prior to commencement of employment:
- Ask the employee to disclose any pre existing injury/disease; and
- Refer the employee to the WIRC Act which states that a failure by the employee to disclose would disentitle them to compensation
However, for an employer to rely on the availability of s41 in seeking to have an employee’s workers compensation claim rejected, the Courts have found the employer must strictly comply with the s41 requirements.