Bowen Buchbinder Vilensky

How Workers Comp And Sickness Benefits Can Leave You Exposed

by Leslie Buchbinder
Medical Forum, April 2012

When the words ‘Professional Indemnity’ and ‘lawyer’ appear in the same sentence, most doctors immediately think of professional negligence. It is true that claims of negligence comprise a large proportion of claims against doctors. But in my experience, most medical professionals are well aware of their responsibilities in this area and of the consequences of not correctly attending to professional indemnity insurance – as well, of course, as their patients. 

There is however another area of exposure with a lower level of awareness, but which I believe deserves much more attention. The purpose of this article is to alert doctors to it. I am referring to doctors’ obligations when completing sickness certificates, workers compensation Progress claim certificates, medical reports and the like. Doctors can face something of a conflict of interest when a patient arrives at their consulting rooms asking them to sign them off work or complete a compensation form. If the person has been a long term patient well known to the doctor, or referred by someone who is, or comes from the same family as another of the doctor’s patients, it’s only natural that the doctor may strongly empathise. When examining the patient, in matters where there is doubt, it would be understandable if the doctor gives the patient the benefit of such doubt, taking their word at face value and trying to help the patient by signing the paperwork as requested. 

However in these situations, a doctor’s obligation is not only to the patient - even though they are paying for his services – but also to their own employer and to themselves. Acting as a representative of the patient, a doctor is essentially providing a professional medical appraisal which employers, insurers or Courts expect to be both accurate and reliable. This applies to all requests for time off from work or insurance compensation, from the initial medical review to the completion of claim forms which often need to be signed every month for which a medical condition persists. 

When a doctor signs a certificate saying that he has examined a patient and found him to be physically incapable of working, he is putting his professional reputation on the line. He is exposing himself to potential legal liability should this claim later prove to be obviously incorrect. 

And in my experience, such claims are being disputed in increasing numbers. We need only read newspaper headlines to be aware how much of a problem productivity is becoming in Australia today. In February, Toyota’s boss Max Yasuda caused a row when he said that absenteeism was as high as 30 per cent at the company’s Altona plant, particularly around long weekends. Research has found almost a third of businesses believe non-genuine sick days are on the rise, with Australian employees taking 9.4 days sick leave a year on average. 

Economic pressures in the non-resource parts of the economy are putting increasing pressures on both insurers and employers – and both can be expected to look more closely at medical claims, especially in the case of serial ‘sick day’ employees and those seeking compensation. 

Surveillance by insurance companies is by no means uncommon. There can be few things more damning of a doctor who has signed a medical certificate on behalf of a patient claiming compensation for a back injury, than video footage showing the patient lifting heavy tyres off the back of a ute or doubling over backwards to repair the ceiling of a campervan. These are not hypothetic examples but real cases. 

The consequences for doctors can be severe. At the very least, when such matters end up in Court, typically with insurers seeking to terminate payments or seeking a return of the compensation they paid out, when a doctor’s name is disclosed the damage to his professional standing and reputation can be significant. He will have no credibility with insurers in the future, and this could have consequences for the cost of his own Professional Indemnity insurance. 

Lost credibility can be the least of his problems if he is accused of reckless disregard in signing a compensation certificate. Consequences can include potential disciplinary action by the Medical Board of Australia and the doctor may also face themselves being sued for negligence or being complicit in conspiring to defraud an insurer. 

In summary, your exposure arising from signing sickness certificates, compensation claim forms or similar documents should not be underestimated. As companies increasingly focus on productivity, and insurers on payouts, this is an area of exposure where doctors need to tread with caution. 

Leslie Buchbinder is a Director of Bowen Buchbinder Vilensky, 
www.bbvlegal.com.au

Leslie Buchbinder

Leslie Buchbinder
Director