Medical examinations are a regular and routine part of the workers' compensation environment, both in assessing workers and getting them back to work.
The third update in our series focuses on some of the challenges employers and insurers face in arranging independent medical examinations (IMEs) with social distancing measures in place, and the implications for how they proceed.
Current issues concerning IMEs
There are currently many hurdles facing the arrangement of IMEs for insurers and workers. Some of these include:
- The risk of a worker, a medical practitioner or others contracting COVID-19 in travelling to or attending an IME;
- Some workers being in the 'at risk' category for serious consequences from COVID-19;
- Travel restrictions affecting regional workers being able to attend an IME.
What measures are medico-legal providers taking?
In circumstances where a worker has particular vulnerabilities or travel restrictions, many practitioners are open to examinations being performed via telephone or video link. This is particularly so for examinations where physical examinations are not required, such as for psychological or psychiatric assessments.
However, where a physical examination of a worker is required and able to be performed, some measures being used by medico-legal providers (in accordance with Government guidelines) to avoid the spread of COVID-19 include:
- Only having one patient in the clinic at each time, with the remainder of patients having to wait outside;
- No one other than patients being allowed in the clinic;
- Doctors wearing protective gear such as gloves and facemasks;
- Rooms being sanitised after each patient's examination;
- Patients completing COVID-19 screening forms 24 hours before their assessment as well as on arrival at the practice;
- Physical contact with the examiner being limited to maximum of 15 minutes per consultation;
- Ensuring appropriate social distancing in both the consulting and waiting areas, and provision of hand sanitiser.
Options for insurers
If an insurer had concerns around an IME proceeding in the current environment, in some instances (for example a newly received common law claim), an insurer may be able to postpone an examination for a period, in the hope of completing the IME once the COVID-19 risk had dissipated and still adhering to legislative time frames.
However, in many instances, insurers are bound by short legislative time frames to take certain actions, and those actions may need to be informed by specialist opinion.
In those circumstances, it may necessitate either assessment of the worker via telephone or video link.
In the recent decision in Tyndall v Kestrel Coal Pty Ltd [2020] QSC 56, the Queensland Supreme Court ordered an injured worker who lived regionally to attend two specialist appointments in his common law claim, with the orders accommodating the COVID-19 situation in the following terms:
'In the event the plaintiff is unable to personally attend the examination due to COVID-19 travel restrictions, the assessment is to be undertaken by video conference and the plaintiff is to submit to any pathology requested by the [doctor] …'
If a worker refuses to attend an IME due to the COVID-19 threat, it would need to be considered whether the refusal to do so was reasonable in all the circumstances of the case, whether at statutory or common law level.
Noting the measures which are being implemented by medico-legal providers to ensure safety and/or to facilitate consultation remotely, a court is unlikely in most cases to consider delay by either party justified on the basis that examination cannot proceed at all due to social isolation measures in place.
Other considerations
Whether IMEs are best conducted via telephone or video link is a consideration which should be taken in account when arranging them. It may be that the benefits or necessity of advancing a claim outweighs the risk and disadvantages of an impersonal IME examination.
However, the fact that the practitioner was not physically present when the examination of a worker was occurring may result in doubts as to the reliability of the opinion being raised at conference, mediation or in court proceedings.
We think it prudent that where IMEs are to be conducted absent a physical examination, insurers ought:
- Ask the doctor whether the ability to provide a complete opinion was in any way hampered by the inability to physically examine the worker; and
- When arranging the appointment, reserve their rights to arrange a physical examination in the future once the COVID-19 restrictions are lifted if required.
