Medical assessments and bosses – injured workers rights

boss-not-welcome-medical-appointment

Earlier today, Monty posted a comment asking if his employer can obtain his full doctors reports from IME or from all the independent doctors he has visited in past months.They apparently told him that they got all the reports. Monty was thinking about privacy laws and acts… and so are we! So we went on a trolling spree and found some answers.

Medical assessments and bosses – injured workers rights

According to a fairly recent media report (Sept 2012) , injured workers are increasingly being forced to undergo unreasonable medical examinations, with their employers (bosses) at times even attending medical appointments with them.

So we wonder what  the rights and obligations are of injured workers who are asked to submit to medical exams by their bosses and, what happens with regards to the medical information/report(s) that are then given to the employers?

Well, it appears that on one hand, bosses have a right and a duty to ensure that employees/injured workers can safely perform their jobs without the risk of injury to themselves or to others.

On the other hand, employees/injured workers have a legitimate right to privacy and not to face unnecessary scrutiny because they are injured or ill.

Apparently, whether a boss can legitimately force an employee/injured worker to attend medical testing or a medical exam depends on the particular facts of the “case”.

All employees/injured workers are obliged – by law- to follow the lawful and reasonable directions of their employer/boss. However, even if it is not unlawful for an employer to force or direct their employee/injured worker to undergo a medical examination, it may still be unreasonable.

For example, and in most cases an employee/injured worker may already have given their employer/boss adequate information about their impairment/injury or illness. (i.e. medical certificate outlining diagnosis, restrictions, etc; letter supporting ergonomic aides, again explaining the condition/injury etc).

In addition, the particular questions that an employer wants to ask a medical practitioner MUST be justifiable (that is reasonable)

Injured workers should take great care to ensure that their employers only ask such questions of treating doctors (GP, surgeon etc) or independent doctors as are reasonable in the circumstances.

It is really unreasonable for an employer to go on a “fishing expedition” by asking unnecessarily broad questions of medical practitioners, such as asking for a complete medical history. For example, they ask for “everything” incl your psychiatric examination report while they only need to know if you can lift 1 bag of carrots at work.

Also bear in mind that an employer who directs an injured worker to see the company doctor or to an  independent medical examination should pay for the cost of such examination.

It is certainly not reasonable for employers to pressure workers into taking along a company representative, the boss, the manager, or anyone from work to a directed (or other) medical appointments with them.

Many employers “play doctor” and make their own medical judgments about injured workers without checking the current situation with a qualified practitioner, or will pressure the injured worker to undergo medical examinations at the company doctor or in the presence of a company rep.

In Victoria, employers have an obligation to provide injured workers with their pre-injury work or suitable work for 12 months (to the extent that it is reasonable for them to do so). Often employers  will simply dismiss injured workers at the end of the 12 month period, without even properly assessing their capacity for work.

Many employers “play doctor” and make their own medical judgments about injured workers without checking the current situation with a qualified practitioner.

Victorian Injured workers who are terminated may have rights under the discriminatory conduct provisions of the Accident Compensation Act, if a substantial reason for their termination is because the employee gave notice of an injury, took steps to pursue a WorkCover claim, or gave or attempted to give a WorkCover claim to their employer.

Injured workers who are terminated from their employment may also have unfair dismissal rights. There may not have been a valid reason to dismiss them based on their impairment, or the company may have failed to follow a fair process in how it dismissed them. Employees who are denied the opportunity to comment about any medical report obtained by their employers, or to provide more detailed information about their condition or prognosis, will generally be treated unfairly and this may be a basis for an unfair dismissal claim.

Injured workers who are treated adversely at work, or who are dismissed, because of their impairment may also have the right to make a general protections claim with Fair Work Australia or a discrimination claim under state or Federal anti-discrimination laws. It is generally a defence to such claims if an employer can establish that the injured worker cannot perform the “inherent requirements” of his/her position, also known as the “general and reasonable requirements of the employment” in some contexts. The inherent or general and reasonable requirements of a position may be vary from case to case. Often the starting point is to ascertain the position or role performed by the employee. This does not always mean just the position description, but also what actual tasks or duties the employee was undertaking. An employee in such a situation can sometimes argue that the employer should have better accommodated his/her disability, by making reasonable adjustments to the workplace to enable her/him to perform the requirements of the position.

It may also be unlawful to terminate an employee’s employment if s/he has been temporarily absent from work because of illness or injury. This is defined in the Fair Work Regulations as an injury or illness extending less than three months or a total absence of less than three months within a twelve month period, for which the employee has not been on paid personal/carer’s leave.

 

Injured workers who are feeling unduly harassed or discriminated against in relation to their impairments/injury/illness should seek appropriate legal advice.

 

[Post dictated by workcovervictim and manually inserted on behalf of workcovervictim]

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4 Responses to “Medical assessments and bosses – injured workers rights”

  1. I heard of one case where the employee was given unsuitable duties out of their Workcover restrictions. Every time the worker complained of the duties of had time off because of over use. The employer would demand they have a physical capacity examination to prove the worker could not perform their duties. Therefore giving them lovage to terminate their employment. What they didn’t consider was its a huge no no to send a worker to any type of physical exam whilst their injury was unstable. For the risk of making that injury worse. So that blew up in their faces very quickly. It was interesting to note the case manager was at the helm of that one too.

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  2. Here is an example of an acceptable letter that was written by an ortho surgeon (in 2006) in response to a question from the return to work coordinator about the injured worker. While the ortho gave a lot of info, note that he specifically answered that this injured nurse could NOT return to pre-injury duties, and that the employer 9the hospital she worked for) would need to give her heaps of support (not that this happened, but anyway…).

     

     

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    workcovervictim3 March 4, 2013 at 9:26 am
  3. HI,

    I made a privacy complaint in NSW because the insurer released a psychiatric IME (by a hired gun) to my employer (local govt.) and the employer gave it to a WorkCover inspector as proof that I wasn’t bullied at work. I am still in the process of having the matter resolved. But I found the following information which may help others:

    In NSW, the Guidelines for workplace return to work programs, which were made under section 52 of the Workplace Injury Management and Workers Compensation Act 1998 (commenced 1 January 2011) say;

    “APPENDIX C – GUIDELINES FOR CONFIDENTIALITY OF INJURY MANAGEMENT INFORMATION

    Introduction

    These Guidelines have been developed with a view to balancing the employer’s and insurer’s

    need for information with the injured worker’s right to privacy. They establish policy and

    procedures for return to work coordinators and approved workplace rehabilitation providers in

    relation to the confidentiality of injury management information involving injured workers.

    What is injury management information?

    Injury management information is any information that involves the treatment, rehabilitation,

    retraining, claims management and employment management practices that are directed to

    assisting an injured worker to return to work.

    It includes:

    •             file notes, letters, faxes and return to work plans completed by the return to work coordinator

    •             treating doctor assessment and reports

    •             specialist doctor assessment and reports if the injured worker was referred to the

    specialist by the treating doctor

    •             approved workplace rehabilitation provider documents such as:

    ° referral/approval for workplace rehabilitation service

    °approved rehabilitation provider plans

    °approved rehabilitation provider progress reports

    ° invoices for workplace rehabilitation services

    ° return to work plans

    ° injury management consultant repo

     

     

    Injury management information does not include:

    •             section 40 assessments

    •             copies of independent medical examiner reports initiated by the insurer

    •             insurance company print-outs of claims estimates and premium costs

    •             common law and legal proceedings.

     

    Policy

    Confidentiality of information

    All injury management information concerning an injured worker is confidential. Staff with

    access to such information are to be made aware that it is confidential and should not be

    discussed with or shown to or read by anyone who is not directly involved in the worker’s

    return to work.

    Section 243 of the 1998 Act, the Federal Privacy Act 1988, the National Privacy Principles

    and the NSW Health Records and Information Privacy Act 2002 apply to the information

    collected and used for the purposes of handling a worker’s claim. In relation to workers

    compensation claims, medical advice must be kept confidential and information released to

    other parties only on a ‘need to know’ basis eg medical information would only be released

    by an insurer to an employer if it was relevant to an injured worker’s return to work.”

     

    Hope this helps,

    Nemesia.

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    • @Nemesia – THANK YOU so much for this invaluable information -we will add this little treasure under “WC NSW” and “Tips and Tricks” for ease of reference.

      Good luck with your fight – kick butt!

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      workcovervictim March 16, 2013 at 9:51 am