Employer right to direct injured worker to undergo medical assessment

medical-assessment-injured-workers

The following Fair Work Commission legal decision has ruled that employers are allowed to seek further clarification where medical clearances provided by (injured) workers are general in nature, or where there are genuine concerns that there is a risk to health and safety if the (injured) worker returns to work. In other words, employers can send you to attend a medical assessment, even with a company doctor!

As we have mentioned several times on this blog, the treatment of ill and injured workers is a growing concern. Employers, workcover insurers and employer representatives are increasingly attending actual medical appointments with injured workers and, in some cases, forcing workers to attend company doctors.
If that’s not enough, many doctors are also increasingly being pressured to change medical certificates and return-to-work plans.

Employer right to direct injured worker to undergo medical assessment

Whilst bosses (employers) and their “intermediaries” such as Return to Work Coordinators are not allowed to attend an injured worker’s medical appointment/examination (without the full and informed consent of the injured worker), a recent decision by the Full Bench of Australia’s Fair Work Commission (FWC) has ruled that…

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an employer has the right to:

  • direct an employee to attend a company doctor for an assessment to verify his or her fitness for work
  • discipline the employee (up to and including termination of employment!) if s/he refuses a lawful and reasonable direction to attend the medical assessment.

 

Background of the case

Mr. G (the injured worker) worked as a boilermaker for  BHP Coal’s Peak Downs Mine (employer). Mr. G suffered a (first) shoulder injury in October 2011. Mr G then also suffered further injuries to his shoulder, both at home and at work. He took extended sick leave for approximately 8 months from July 2012 onwards and underwent shoulder surgery in September 2012.

In March 201, the injured worker (Mr G) then sought to return to work  and advised his supervisor that he was fit to return to work, and provided two medical certificates, one from his general practitioner (GP) and one from his treating surgeon. Both medical certificates were “general in nature”, but clearly stating that the injured worker was “fit to return to full normal duties”.

However, the injured worker’s supervisor was not satisfied with the “general nature of both the medical certificates” and directed the injured worker to attend an appointment with a specialist occupational physician (who allegedly has some knowledge of BHP’s work operations), chosen by the employer (BHP Coal’s Peak Downs Mine) to assess his fitness for work.

The injured worker refused to attend this medical assessment and questioned the authority on which the direction (by his supervisor) was given.

The injured worker’s supervisor relied on Queensland mining regulations which allowed the Company/employer to take reasonable steps to ensure that a worker was not exposed to an unacceptable level of risk in the workplace.

The injured worker refused to attend the medical appointment and again refused to attend the medical assessment when it had been rescheduled.

BHP then terminated the injured worker (!), following which the injured worker lodged an unfair dismissal claim.

The Fair Work Commission Decision

Fair Work Commissioner (Spencer)  found that the direction given to the injured worker to attend the medical assessment with a company appointed doctor was lawful and reasonable based on the following argument:

  • under the health and safety obligations on coal mine workers under the Coal Mining Safety and Health Act 1999 (Qld), the injured worker’s manager/supervisor was obliged to take action to ensure the health and safety of the workers with whom the injured worker worked at the mine, as well as the injured worker himself. As such, the direction by the Company/employer that the injured worker attend a fitness for work assessment was lawful in those circumstances
  • the FWC found that the medical information that the injured worker had provided to his supervisor/employerwas “quite insufficient and generic”.  The FWC found that it was reasonable for the Company/employer to require more specific medical information, and to require a fitness for work assessment to be conducted by a doctor with specialised knowledge of the Company’s operations.

According to FWC, the injured worker’s refusal to attend the fitness for work/ medical assessment, despite being warned that he would face disciplinary action if he failed to comply with the direction to attend, constituted a valid reason for dismissal.

Obviously ‘dumbstruck’ (as we are! ) the injured worker appealed the FWC (Spencer) decision.

The Appeal decision

On appeal, the Full Bench of the Commission (Full Bench) basically agreed with the FW Commission’s decision. They agreed that the coal mining legislation gave the Company the right to direct the injured worker to attend a medical assessment with its (the Company) chosen doctor.

The Full Bench also stated that “a direction given to a worker (employee) is lawful to the extent that it falls reasonably within the scope of service of the worker (employee)”.

According to the Full Bench, such a direction will be lawful (that is the worker must obey) if it:

  • relates to the subject matter of the employment
  • is reasonable having regard to the nature of the employment and the employment instruments which apply to it
  • involves no illegality

In this case, apparently the direction to attend the medical assessment was found to be both lawful and reasonable, having regard to the injured worker’s prolonged absence from work following surgery, the “general” nature of the  2 medical certificates, and the injured worker’s role in doing heavy manual tasks.

 

What we don’t understand, apart from the specific mining legislation, is why an injured worker must attend a medical assessment with the Company’s doctor or the Company’s chosen doctor, and why not an independent assessment. We also don’t quite understand what the “expertise” is of such a chosen doctor (in this case, an occupational physician) in comparison to that of an orthopedic, or even upper limb surgeon, who actually performed the surgery and declared the injured worker fit for work.

 

This case was also covered in our article “The injured worker wants to return to work – but is he fit?”

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3 Responses to “Employer right to direct injured worker to undergo medical assessment”

  1. Given the inferences in the article about occupational physicians, I think it is important to clarify the expertise of an occupational physician – I am one.
    Leaving aside issues of bias, which can be an issue with any type of professional, an occupational physician would be expected to have greater expertise and experience in assessing issues relevant to a workplace than other types of specialists. While in the case quoted, the surgeon who operated might well have greater knowledge of the exact details of the pathology affecting the shoulder, an occupational physician has specialised training and experience in understanding the effects that activities might have on the condition and the risks that might arise from involvement in work activities to the worker themselves and perhaps even their coworkers.
    In my own practice, specialist orthopaedic and neurosurgeons often recommend the involvement of an occupational physician to assess workplace risks to their patients. They acknowledge they might not have the requisite expertise or experience.
    Often the motivation of the employer is to avoid the risk of further aggravation of the injury, which is a reasonable objective. I wouldn’t, of course, condone an employer using such an assessment to harass a worker or seek a means to terminate their employment, but there are genuine reasons why an employer might seek such an assessment.
    To me the Fair Work Commission seems reasonable, although obviously I don’t know all the details of the case.

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  2. Further to my comment above, I do agree that there is no place for an employer representative in the doctor’s consultation with a worker to assess fitness to work, except in some unusual situations and the worker asks for the employer to attend.

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    Peter Sharman (Tasworkdoc) August 6, 2014 at 9:41 pm
  3. I think part of the problem also is that getting so many opinions from different doctors and occupation rehabs is hard to sort through, that and the insurance companies read what they want. The IME occupational therapist i went too clearly stated mine was a work injury exacerbated by repetitive actions, then stated they needed to be avoided, also strength and grip was an issue. Then stated that I could probably return to similar work or pre-injury work with those condition and some other. So on one hand he says the work causes the injury and the other hand I’m ok to do the work that makes the injury worse. I’m sure typing is repetitive isn’t it.
    Then you go to the rehab person who the insurer has told that the IME has said i can do similar work, no mention of pre injury employment which has been terminated after 52 weeks. My question of well if i’m fit to do that sort of role then why can’t i keep my pre injury employment goes unanswered. I’m forced to apply for positions similar to what I had that both my drs and I know I can’t do without worsening my injury. Nothing makes sense and no one talks to each other about the snip its of information that the insurance company gives them.

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