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 installment 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].