Don’t take your employer to the doctor

There is no legal or operational basis for an employer, employer’s representative or insurer to attend a medical consultation with a worker.

The IEU advises members not to take an employer representative to medical appointments linked to workers compensation matters.

A doctor’s appointment is a private matter. The IEU often receives questions from members asking about their rights to choose a treating medical practitioner, employer attendance at medical consultation and pre-employment medical screenings.

Worker choice of treating medical practitioner

Injured workers have the right to choose their own treating medical practitioner for the purposes of treatment and initiating a workers compensation claim.

The medical practitioner chosen by the injured worker is referred to as the nominated treating doctor or general practitioner.

Injured or ill workers have the right to seek their own medical treatment and seek a diagnosis from their own medical practitioner.

If the injury prevents the worker from performing his or her normal job for seven days or more, the law requires a worker to nominate a treating doctor.

Employers can recommend a medical practitioner to the worker however employers or insurers should never require or coerce an injured worker to attend a particular medical practitioner.

Where an insurer or an employer requires an independent medical examiner (IME), alternative legislative arrangements exist.

Employer attendance at medical consultations

There is no legal or operational basis for an employer, employer’s representative or insurer to attend a medical consultation with a worker. This remains the same when the employer/insurer has engaged an IME (Independent Medical Examination) or is paying for the consultation through insurance or to provide for pre-employment or employment screening.

Where the employer has a legitimate interest in the consultation between a worker and medical practitioner, for example gaining a better understanding of an injured worker’s capacity for work, or the injured worker’s return to work plan is being discussed, the employer may hold discussions with the medical practitioner outside of the private consultation with the worker. This could involve a face to face meeting directly after the worker’s private consultation, contact via letter or phone call any time after the private consultation, or a case conference.

Case conferences

Case conferences, and less formal telephone conversations, are the appropriate forum for employers to engage in discussion on return to work issues with the injured worker’s treating medical practitioner. A case conference is a collaboration approach to discuss a worker’s recovery, capacity to work and to develop a return to work place. Seek Union advice before attending these appointments.

Pre-employment health/fitness checks and questionnaires

People seeking employment may from time to time be required to attend a pre-employment medical assessment or fill out a medical questionnaire as part of the recruitment process.

It is against the law to refuse to employ a person based on information that discloses a disability if the information is not directly related to how adequately the person is able to perform the inherent requirements of the job.

A medical examination or questionnaire should ensure the employer recovers information only directly relevant to the essential requirements of the job. The results must remain strictly confidential and the worker must be advised of the results.

Information sought that goes beyond inherent requirements of the job could discriminate against the worker. The IEU has recently been involved in discussions with the Maitland-Newcastle Diocese to ensure prospective members were not disadvantaged by an unnecessarily intrusive pre-employment screening process.

In September 2012, the Fair Work Ombudsman said “it is concerned about recent reports surrounding employers attempting to attend medical appointments with employees”.

“The Fair Work Ombudsman does not condone or support this behaviour 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”.

The IEU strongly advises you to attend your family doctor for any treatment. In certain circumstances for workers compensation you may be required to attend an insurance doctor. For further information, make contact with your IEU Organiser.

Mark Northam
Assistant Secretary