In Part I of this series, we explored when an employer can request medical information from an employee or ask them to attend an independent medical examination.

In this second instalment of our 3-part series, we consider how employers should assess information about an employee’s fitness for work, including dealing with conflicting opinions between medical practitioners.

Approach to assessing medical information: key considerations

In matters involving an employee’s incapacity, the key questions for the employer upon receiving a medical opinion about an employee’s fitness for work are whether the available evidence shows:

first, if the employee is capable of performing the inherent requirements of their role;
secondly, if the employee would be able to perform the inherent requirements of their role at some time in the future; and
thirdly, if any reasonable adjustments could be made to accommodate any current or future incapacity.[1]

Sometimes, it may be evident on an employee’s own evidence that they are unfit for all duties with no likely return to work date.[2] However, in other cases, these questions may not have simple answers.

Conflicting medical evidence: who’s report should we prefer?

One situation in which the position is less clear is when an employer is faced with conflicting medical evidence; for example, where there is a material difference in opinion between an employee’s treating doctor and an independent doctor.

Where there is a conflict, an employer cannot automatically prefer the evidence of their independent doctor over information provided by an employee (usually from the employee’s treating doctor). This is because, in any subsequent unfair dismissal claim, the Fair Work Commission will consider all of the medical evidence and any other available evidence to make an assessment on an employee’s capacity[3].

Employers should therefore take extra care in assessing medical information, particularly in cases where there are competing opinions. Consideration should be given to why one opinion holds more weight than another, having regard to matters including:

the relevant specialisations of the medical practitioners (for example, in relation to differences in diagnosis and prognosis from a general practitioner as opposed to a specialist);
a treating doctor’s familiarity with the employee and their medical condition over a period of time[4];
an employer-instructed doctor’s familiarity with the employer’s workplace, and requirements of applicable roles[5]; and
whether the doctor outlines grounds to support their conclusions on various matters and the basis on which they are qualified to arrive at particular conclusions[6].

What happens next: do we have grounds for dismissal?

Stay tuned for the last post in the ill and injured blog series. In Part III, we will consider when an employer may have a valid reason to dismiss an employee in circumstances of incapacity or failure to follow a lawful and reasonable direction.

Interested in learning more?

The Workplace can offer your team professional development in how to effectively manage ill and injured workers. To find out more about our in-house professional development seminars, please contact us on 02 8226 8535.

Not sure what to do or like some help?

Please give us a call on 02 8226 8535 or email hannah@theworkplacelawyers.com.au, kim@theworkplacelawyers.com.au or alina@theworkplacelawyers.com.au if you need assistance with managing ill and injured workers.

The copyright in this blog is owned by The Workplace – Employment Lawyers Pty Ltd. The content is general information only and is not intended to constitute, or be relied upon as, legal advice. The use of this blog by any person or company does not create any solicitor-client relationship between the person or company and The Workplace – Employment Lawyers Pty Ltd.

[1] See Jetstar Airways Pty Limited v Neeteson-Lemkes [2013] FWCFB 9075 at [53].

[2] See, for example: Samuel v Inner South-West Community Development Organisation [2017] FWC 435 in relation to an employee who had been absent from work for 14 months (with all medical certificates in that time indicating he was unfit for work on medical grounds and had no capacity); Levidis v Rogers Seller & Myhill Pty Ltd [2018] FWC 3767 in which all the medical evidence indicated a psychological injury prevented the employee’s return to work; and Kothandan v Transdev Melbourne Pty Ltd [2018] FWC 2119 in relation to a bus driver who was unable to perform the inherent requirements of his role due to a physical injury.

[3] See CSL Limited v Papaioannou [2018] FWCFB 1005, in respect of an employer’s decision to terminate based on independent medical evidence that was in conflict with the evidence of the employee’s long-term treating psychologist about when he might return to work.

[4] See Herbert v Adairs Retail Group Pty Ltd [2019] FWC 5928, in which the Fair Work Commission considered whether there were exceptional circumstances relating to the late-filing of an unfair dismissal application and expressed doubts about the employee’s medical condition given the medical letter did not traverse whether the doctor had treated the employee previously.

[5] See Henegan v Queensland Bulk Handling Pty Ltd [2014] FWC 2345, in which the Fair Work Commission preferred evidence from the employer’s doctor as he had conducted a practical assessment to determine the employee’s capacity. Deputy President Asbury noted the value of the “assessment [having been] conducted in light of [the doctor’s] own direct knowledge about the work environment at [the employer] and in circumstances where he simulated the types of conditions to which [the employee] would be exposed in that workplace”.

[6] See Herbert v Adairs Retail Group Pty Ltd [2019] FWC 5928 at [34].