General comments on workers’ compensation

33.11 The Inquiry received few submissions about the use of genetic information in relation to workers’ compensation. The Australian Council of Trade Unions (ACTU) expressed the concern that many employers see employees’ use of sick leave or workers’ compensation as an indication of their suitability for employment.

Employers could find themselves required by insurers to minimise risk by not employing people with predispositions to disabling conditions, or face higher workers’ compensation premiums. Collection of genetic information could also affect general workplace salary continuance insurance arrangements which are currently offered to all employees in some workplaces … If such testing and data collection became widespread, it could very well lead to the development of an ‘underclass’, whose employers, assuming they were employed, would be unwilling to invest in their training and development, or to offer them long-term advancement opportunities.^[10]

33.12 DP 66 asked whether employers or insurers should have access to an employee’s genetic information to determine liability, or to assess compensation or damages, in relation to a workers’ compensation claim or a common law claim for work-related injury.^[11] In response, the ACTU commented:

the ACTU is concerned that genetic information about injured employees could be used by employers and insurers to deny or reduce workers’ compensation claims on the grounds of a person’s alleged genetic predisposition to certain conditions. The provision for the use of family history under some workers’ compensation schemes is already problematic as family history is not unequivocally predictive of a person developing any condition or disease. All workers, or their families, should be entitled to compensation for work‑related death, or incapacity whatever their family history or genetic make‑up.

Society needs to be convinced that there is a significant public interest before agreeing to genetic testing in the occupational environment. The ACTU is not convinced that such a public interest exists at present, or is likely to exist.^[12]

33.13 By contrast, the Australian Chamber of Commerce and Industry submitted:

If genetic information is available concerning the employee’s health, and as a result fitness to undertake work which the employee is employed to perform, then the employer /insurer is entitled to gain access to that information. The employer/insurer can then assess:

a) Whether given the genetic evidence in advance, the employer would have offered or assigned that work to be undertaken by that employee;

b) The level of liability based on that evidence;

c) The employee has a ‘duty of care’ to the employer, to fellow employees, and others and as a result has an obligation to divulge any health problem, which may affect work performance, and or the employee’s own safety and the safety of others.

The employer can then also make decisions about the potential suitability of the employee for certain kinds of work—e.g. it may assist the employer in ensuring that employees are not exposed to hazards and situations which they should avoid from a health and safety perspective.^[13]

33.14 The Law Institute of Victoria provided a detailed discussion of this issue. After noting their primary concern that genetic information includes information about an enormous number of ‘potentials’ as well as current realities, they commented:

In the Workers’ Compensation context, it would be naive to expect that insurers would (or even could) use this sort of information only to test for conditions relating directly to the injury in question. An insurer has competing interests and obligations. In defending a common law claim for damages for example, an insurer would understandably want to test for any condition which might be held to reduce the life expectancy of the claimant, so as to limit the damages claim. The prejudicial effect of discovering a ‘potential’ condition or genetic predisposition, and the lack of certainty on the basis of current scientific knowledge, makes this an extremely dangerous exercise. It also takes no account of the ‘egg‑shell skull’ rule that has long formed part of our system of torts law … There is no reason why a person with a genetic propensity should be discriminated against in the job market or less compensated for the same injuries as a person who does not carry those genes.^[14]

33.15 The Law Institute commented that granting insurers the right to obtain genetic information runs counter to much of the ethical debate on this issue. They noted that individuals should have a choice whether to undergo genetic testing or not; and where genetic information is disclosed to an uncounselled claimant or an unscrupulous employer this could have far reaching consequences. They outlined the competing interests involved in this area:

Some of our members argue that there is no reason to subject an individual to genetic intrusion simply because they are insured for workplace injuries. Others believe that testing can be in the interests of the worker, as it will sometimes alert employers to environments which may be particularly unsafe for that worker. In a perfect world, the information could then be used to provide the most appropriate employment possible. However it is in fact as likely to be used to keep vulnerable workers out of the work force altogether, particularly given the potential impact on insurance premiums …

There is also the risk that genetic testing requirements would deter some individuals from applying for particular work, or from taking action to recover compensation or damages for an injury, which they are legitimately entitled to take …^[15]