What is at stake in RTW, workers’ comp and privacy?

The sharing of accurate, relevant information between stakeholders—the  ill or injured worker, their treating practitioner, the insurer, RTW / rehab staff at the employer and any external rehab providers—allows for good decision making around claims’ determination, workplace accommodations (for example, modified duties and reduced hours) and rehabilitation.

However, if issues of privacy and confidentiality are poorly managed, problems may result including:

• Breaches of federal and / or state privacy provisions;
• The worker becoming suspicious and withdrawing from the process;
• The treating practitioner refusing to provide further relevant information, citing doctor patient confidentiality;
• The treating practitioner becoming reluctant to share information in other cases;
• Gossip in the workplace; and
• The loss of opportunities for early intervention, as other workers avoid disclosing health issues to prevent their own privacy being breached.

In order to meet legal obligations, keep the key players engaged, and avoid adversarial claims, it is important to have appropriate ways for managing both confidential and non-confidential information relevant to RTW and workers’ comp.

What are some key confidentiality principles?

Every person has the right to exert some control over the flow of their personal information, even when this information is not, strictly speaking, confidential. Respecting this principle can help diminish the sense of disempowerment that injured workers sometimes feel. The best approach is to regularly ask the person what information they are comfortable sharing. 

For example, a line manager may wish to prepare the ground for an employee’s return to work by informing co-workers about what the employee will and will not be able to do, and enlisting their support. If well-managed, this approach can foster recovery and return to work; if poorly managed it can leave the injured employee feeling like people are talking about them behind their back. The line manager should:

• Let the employee know what is planned;
• Identify any issues he or she might have;
• Ask him or her for help in resolving these issues;
• Confirm that he or she consents to the discussion taking place; and only then
• Have the discussion with workmates.   

Is information about work capacity confidential?

No. Work capacity is not a confidential matter, but it is personal, and therefore it is sensible to handle information about a person’s work capacity in a respectful and sensitive manner.

Discussions of work capacity should occur on a ‘need to know’ basis. Appropriate forums include:

• Certificates of capacity;
• Return to work plans;
• Conversations between the employee and supervisor; and
• Discussions between treatment providers.

Is a person’s medical diagnosis and treatment / medication confidential?

No. This information forms part of the Certificate of Capacity, which is on the public record and therefore not confidential. However, as above, diagnosis and treatment are personal, and this kind of information should be handled in a respectful and sensitive matter.

What RTW / workers’ comp information IS confidential?

While relevant, recent, work-related medical information is usually not confidential, other medical information—such as the individual’s medical history—is confidential. A worker’s permission must be sought before asking a treating practitioner to provide such information.

What kind of consent is required for the release of confidential information?

Medical practitioners prefer consent to be:

• Written as opposed to verbal;
• Specific to the health condition—a GP who is willing to provide information about their patient’s 2010 workplace back injury is unlikely to be willing to provide information about an episode of depression experienced in 2006;
• Timely—a doctor may accept a consent form dated two months prior to the request for information being issued, but a consent form dated two years prior is likely to require updating; and
• Provided by a person who understands what they are consenting to.

If a medical practitioner is uncertain that consent has been obtained, the medical practitioner should discuss this with the patient and clarify what they do and don’t consent to.  

What are some examples of confidential RTW / workers’ comp documents?

• Medical reports, including copies of treating practitioner’s notes;
• Medical invoices or billing information;
• Case file notes that record information provided by treating practitioners, whether these notes were provided by the practitioner or jotted down during a telephone conversation; and
• Copies of investigation results, such as x-rays or scans.

How should confidential documents be stored?

A locked cabinet is the appropriate place for hard copies of confidential documents. Care should be taken to ensure that confidential documents stored digitally are also secure.