GPs an important part of getting patients back on the job after a WorkCover claim

Neelima Choahan

13/09/2018 11:09:36 AM

For the latest of a series on legal matters in general practice, newsGP spoke with two experts about WorkCover and return-to-work practices, and the role GPs play.

GPs are often key in helping a patient return to work after injury or illness
GPs are often key in helping a patient return to work after injury or illness

GPs are vital in providing information in the context of a WorkCover insurance claim or when helping a patient return to work after an injury or illness.
Sturt Le Grand, Le Grand Margalit Lawyers
Personal injury lawyer Stuart Le Grand says an insurer or an employer can’t attend a worker’s GP appointment without consent from the patient.

Mr Le Grand said a GP’s opinion is sought at various stages of a compensation claim.
‘In most jurisdictions, a WorkCover insurer will require a medical certificate to be provided in order for it to consider whether to accept a claim for compensation,’ he told newsGP.
‘Similarly, if an injured worker is pursuing compensation – such as weekly wages or lump sum amounts – commonly a GP’s medical certificate is required, detailing the worker’s injury and their capacity to work, or otherwise.’
Back to work
Mr Le Grand said all WorkCover compensation schemes in Australia place great emphasis on getting injured workers back to work, where possible, through participating in return-to-work programs.
And it is here, he said, that a GP’s judgement can be the most important.
‘Often, the opinion of the GP regarding the worker’s fitness is quite persuasive, particularly if the GP has been a long-standing treatment provider of the injured worker,’ Mr Le Grand said.
‘What is not lawful, however, is where an employer, or insurer, insists on attending a GP appointment with the worker.’
Can employers or insurers accompany the patient to the GPs?
‘In recent years, there has been a number of incidents of employers or insurers advising the injured worker that they must attend a GP appointment with the employer or insurer, in order for the payment benefits to continue, as part of their rehabilitation obligations,’ Mr Le Grand said.
‘There is no legal basis for employers or the insurer to be present during a medical appointment between an injured worker and the treating doctor.’
Mr Le Grand said, in a statement released on 27 September 2012, the Fair Work Ombudsman stated:
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 by the employee. The Fair Work Ombudsman does not consider that it is reasonable for an employer to seek to attend a medical appointment with the employee for this purpose and views this as a breach of the employee’s privacy.
‘An employer or employer’s insurer is only entitled to attend a GPs appointment with the injured worker if the worker has given their consent to the employer or insurer being present at the appointment,’ Mr Le Grand said.
‘An attendance without the worker’s consent is a breach of privacy.’
Written authority
Mr Le Grand said an employer or an insurer can request information from a treating doctor for the purpose of assessing the compensation claim.
‘To do this, however, the employer or insurer must have a written authority from the injured worker, permitting the release of such information,’ he said.
Right to choose a GP
‘All injured workers have the right to choose their own treating medical practitioner for the purpose of receiving medical treatment,’ Mr Le Grand said.
‘This should not be confused, however, with the right of an insurer to arrange an independent medical appointment for the worker to attend for the purpose of assessing their eligibility for WorkCover compensation in the various states.’
Dr Sara Bird, Manager, Medico-legal and Advisory Services, MDA National
MDA National’s Dr Sara Bird says it is not the treating GP’s role to determine whether a worker has a valid compensation claim.

Dr Bird said GPs may be asked to provide the first medical certificate – different in every state and territory – which the patient can use to start a WorkCover claim.
‘In providing the first medical certificate, you are not confirming that the injury must be accepted by WorkCover. But that certificate enables the patient to actually commence the process of making a claim,’ she told newsGP.
‘Ultimately, it’s up to the patient to decide whether or not to commence a WorkCover claim.’
Dr Bird said even if it is a workplace injury, a GP can still bill it to Medicare if there is no WorkCover claim at the time.
‘It’s not the treating GP’s role to determine whether a worker has a valid workers’ compensation claim,’ she said.
‘The medical opinion that they put on the certificate should be restricted to whether the condition could have resulted from the incident reported by the patient.
‘It’s between WorkCover and the patient whether or not the claim will be accepted.’
Date of medical certificate
Dr Bird said GPs should never backdate a certificate.
‘The GP can certainly provide a prior date of injury on a first medical certificate, and that’s the date that the patient told the GP that they first became injured,’ she said.
‘But the GP should always sign and date the certificate on the day that certificate was completed.
‘That’s part of the code of conduct that all certificates must be accurate and not misleading.’
Dr Bird said GPs can also be asked to provide a medico-legal report about their patient and can seek advice from their medical defence organisation on how to complete it.
Return to work
Dr Bird said GPs have a particularly important role as part of a multidisciplinary team to assist their patients to return to their pre-injury duties.
‘If that’s not possible, then GPs have a vital role in assisting in their patient’s rehabilitation so they can work in an alternative role,’ she said.
‘There are several key people that are involved in a worker’s compensation claim and, although the system can appear quite adversarial at times, GPs are really an important part of that team engaging with these other parties to see if the injured person can return to work.’
GPs may also be asked to help a patient return to work following an injury or illness not sustained at work.
‘With the patient’s permission, they can liaise with the employer and provide recommendations as to their patient’s capacity for work, and in that situation you would always be working with your patient’s consent and authority,’ Dr Bird said.
Patient consent
However, Dr Bird said there are some cases where WorkCover investigators can use their legislative powers to obtain a person’s medical records without consent.
‘WorkCover investigators have quite significant legislative powers and they can require doctors to provide information and records,’ she said.
‘So if the system has become adversarial, GPs may get a notice from WorkCover that compels them to provide information.
‘GPs can always get advice from their medical defence organisation on how best to respond to these sorts of requests.’
According to Dr Bird, in most cases the patient needs to give consent for their GP to provide information to the employer, and the patient can withdraw that consent at any time.
‘Withdrawing that consent may then have implications for the patient as to whether their WorkCover claim is accepted or continues,’ she said.
‘But it is between WorkCover and the patient whether their claim will be paid out. The GP is going to be providing treatment to the patient regardless.’

Fair Work Ombudsman medico-legal documents WorkCover

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