AMMA Employee Relations Consultant Kasey Chalmers

In this feature article, AMMA Employee Relations Consultant Kasey Chalmers explores the responsibilities of employers during medical appointments.

WorkCover WA recently released a notice that clarifies its interpretation on the requirements relating to worker choice of treating medical practitioner and employer attendance at medical consultations in Western Australia.

In its opinion there is no legislative basis for employers or representatives to be present at medical consultations or to require an employee to attend a particular medical practitioner.

Employee’s choice

WorkCover WA sets out that injured workers have the right to choose their own treating medical practitioner for the purpose of a workers’ compensation claim;

It also states an employer or insurer should not require or coerce an injured employee to attend an employer-elected medical practitioner for the purpose of medical treatment of a workplace injury and certification for claiming compensation; and

There is no legislative basis for employers or representatives for an employer to be present – even if treatment is nominated by the employer – rather as stipulated under Sections 64 to 65 of the Worker’s Compensation and Injury Management Act 1981 employers can only go as far as to recommend a medical practitioner.

To attend or not attend?

The practice of employers attending an employee’s medical appointment to obtain accurate and comprehensive information on the injury or illness is not unusual.  There have been reports of recent incidents where case managers and insurance company representatives are also requesting to attend medical consultations.

This growing trend of employers requesting attendance at medical consultations has spurred interest from unions, the Australian Medical Association, Fair Work Ombudsman and WorkCover as there are concerns that employer attendance at medical consultations could breach the privacy of the worker.

Often the purpose for employer or representative attendance at medical consultations is to clearly understand whether an employee is fit for work, whether any reasonable adjustments need to be made and developing a return to work plan that is appropriate.

There are other means for this information to be obtained that does not breach the privacy of the worker.

There is no legal or operational basis for employers or representatives to be present during a medical consultation between an injured worker and a medical practitioner.

Across all States and regulatory bodies – the messaging is quite clear – while an employer is expected to be involved in the process, it is not considered reasonable for an employer seek to attend a medical appointment with the employee.

In 2012, the Fair Work Ombudsman also stated that it does not condone or support this practice and sees no reason why an employer should seek to attend a private and confidential appointment with an employee, unless specifically requested to do so by the employee.

Employers are expected to maintain a legitimate interest in the wellbeing of an injured employees and are not restricted in offering assistance, interacting with medical practitioners, and showing an interest in that employee’s capacity for work and return to work options – however – this does not extend to being present in the medical consultation between employee and the elected medical practitioner.

Employers can engage with the worker’s treating medical practitioner without compromising an employee’s privacy. This largely involves ensuring effective communication between stakeholders.

Case conference format

A way that employers can develop effective return to work plans and assess an employees’ fitness for work, without compromising an employees’ privacy is through case conference format.  A case conference is a planned and collaborative approach to discuss a worker’s recovery, capacity to work and to develop a return to work program.  Essentially, it is a means for employers to be directly involved with the discussions with the medical practitioner, without risking breaching the privacy of the worker. These discussions can occur face to face, by phone or by teleconference.

It is recommended that employers communicate regularly and collaboratively with the employee and medical practitioner – to facilitate meaningful discussions.  Discussions should transparent, honest and open.  An effective case conference can cover an array of issues and can include; employee progress and treatment plan, duties the employer can provide in light of employee restrictions, support the employee may require, modifications to existing practices and any services required by involved parties.

While employers do not have the capacity to attend a medical consultation they have the ability to recommend a preferred medical practitioner that is best aligned with the business and understands the workplace an inherent requirements of the role. Recommended medical practitioners should possess knowledge on the return to work processes and should be familiar with businesses policies and procedures – this can facilitate decisions that are in the best interest of all stakeholders involved.

Choosing a medical practitioner

In most instances, it is not reasonable for employers to require an employee to choose a medical practitioner for treatment purposes. However, as demonstrated in Grant v BHP Coal Pty Ltd [2017] FCAFC 42 employers are able to direct an employee to attend a medical assessment with an employer appointed medical practitioner where it is seen to be a lawful and reasonable direction.

In Grant v BHP Coal Pty Ltd the Full Court held that s39 of Queensland’s Coal Mining and Safety and Health Act creates an obligation to comply with safety-driven management instructions and that this included complying direction to attend a medical appointment where a risk is identified.   

Therefore, case law indicates that in instances where there is a risk identified for the effective development of a return to work plan, an employer may look into having an independent medical practitioner, specialising into return to work plan management, attend a return to work consultation.

The medical practitioner should be made aware of the inherent requirements of the role to ensure that they are able to make an informed assessment of the employees’ recovery and any reasonable adjustments.

For advice on any of the matters covered in this article, contact [email protected]