Have you ever asked yourself: “Can I record my workcover IME examination?” Or have you ever secretly recorded an IME examination?
There is specific Australian State/Territory legislation relating to audio (and video) recordings of private conversations and whether the consent of all parties is required. In all jurisdictions except Victoria, Queensland and Northern Territory, it is illegal for patients to record a medical consultation without the doctor’s permission. There has been a fairly recent (2014) criminal case in Australia of a patient using a concealed video recorder to record a consultation without the doctor’s consent (Toth V DPP NSW 2014)
Recording workcover independent medical examination
We have written countless articles about the workcover independent medical examination, both on our old site and here on our new site; and how it is often used against injured workers. Independent medical examination doctors are often cherry-picked by workcover insurance companies, many IME doctors have made lucrative careers out of writing IME reports and testifying against injured workers in court.
The Australian workcover law essentially states that anyone with a workcover claim can be requested to undergo a workcover independent medical examination ordered by the workcover insurer. Lawyers are not permitted to attend these IME examinations and even family members or support persons may not be allowed into the examination room, this is especially true for psychiatric independent medical examinations.
Many injured workers have told us that their workcover independent medical examination was very short, (some lasted about 15 minutes) and many injured workers have reported that workcover independent medical examinations can be very uncomfortable physically and/or mentally. The workcover IME doctor asks personal questions and does a physical examination, or at least, is supposed to undertake a comprehensive physical examination. A written IME report will then be drafted and sent to the workcover insurance company. Some workcover insurers (and IME companies) require the IME doctor to sent the report in Word format so that it can be edited, modified, opinions changed.
It is quite common that workcover benefits are cut-off based upon this IME report. This can be ceased or decreased medical and like treatment, cut off of weekly payments, denied surgery request etc.
It is unfortunately also common for certain frequently hired workcover IME doctors to form the opinion that an injured worker has either fully recovered of their work injury, or was never suffering from a work-related injury in the first place. Many IME doctors will also blame genuine injuries on pre-existing conditions. And this can happen months or even years after a workcover claim was submitted and it doesn’t matter what the injured worker’s own treating doctor and/or specialist believes.
It is therefore only natural for genuinely injured workers to want to protect themselves against these -often adversarial and negative-workcover independent medical examinations. Many injured workers who have undergone several workcover IME examinations will want to audio or video record the independent medical doctor during the examination. After all, workcover insurers don’t have a problem filming and photographing injured workers under the pretext of ‘fraud’ prevention; so why would injured workers not allowed to do the same, and record their conversations with their workcover insurance company (eg. case manager), or even record an IME examination. And, really, a workcover IME examination recording could be viewed by the IME doctor as excellent evidence of his/her appropriate professional conduct, accepted level of independent medical examination, behaviour etc.
Recording a workcover independent medical examination: what does the Australian law say?
Workcover benefits can be stopped if the workcover agent believes a person has obstructed the independent medical examination. This includes injured worker not showing up when required and / or making the IME examination difficult. Some injured workers have reported that secretly recording independent medical examinations can lead to IME doctors cancelling the appointment if it is discovered.
Recording a private conversation, and as such a medical consultation or a workcover IME examination is lawful in VICTORIA, QLD and the NT.
In the Northern Territory, Queensland and Victoria under the listening or surveillance devices legislation it is not illegal to record a private conversation that a party is involved in. However, in other states and territories such as NSW, it is an offence to record a private conversation (unless specific exceptions apply). One of the exceptions is if all the parties to the conversation consent to the recording. Also in the ACT, NSW, Tasmania and WA, an exception applies where the recording is not made for the purpose of communicating or publishing the conversation to any person who is not a party to the conversation.
However, please note that in EVERY Australian state and territory, the consent of all parties to the conversation is required in order to communicate or publish the recording to any third party. Therefore, it is illegal in Australia for a patient to share a recording of a consultation without the consent of their doctor, and as such with the workcover IME doctor. So, if you do secretly record your IME examination, please seek legal advice on whether or not the recording can be disclosed or used to challenge a bad IME report.
Video recordings of medical procedures is already occurring in Australia. Some doctors are even encouraging their patients to take “medical selfies”. Many believe that with the improving technology, the video or audio recording of doctor-patient interactions may well become routine in the future, with the doctor and patient each retaining a copy. We believe that from a medico-legal view, video or audio recordings of medical consultations, including workcover IME examinations, is an invaluable “medical record”, especially where there are disputes involved of the injured worker versus the IME doctor’s recollection of the examination.
Biased workcover IME reports and opinions can be challenged
Biased medical reports and/ or opinions can and should be challenged. In Victoria, for example, if your workcover agent has relied upon a biased IME report to cease or decrease any of your legitimate workcover benefits, you can lodge a Conciliation. From there, the matter may be referred to a Medical Panel and or to a Court.
Diary of a Workcover Victim urges all injured workers to keep a pen and notebook at hand and to write down everything that was said and done immediately following the independent medical examination, including the length of time you were in the examination room. These notes can be used to refresh your memory about how the workcover IME examination really went, when countering a biased IME report or when challenging an IME doctor’s opinion in Court.
Some studies (1) have shown that up to 69% of patients are using their phones to record their medical consultations. Although this is usually done with the doctor’s permission, it’s sometimes done secretly. This may be unlawful in some states. (2).
The position in each state as to the legality of secret recordings is summarised in the table below.
|State/Territory||Relevant Surveillance Legislation||Lawful to secretly record a private conversation to which you are a party?|
|Victoria||Surveillance Devices Act 1999 (VIC)||Yes|
|Queensland||Invasion of Privacy Act 1971 (QLD)||Yes|
|NT||Surveillance Devices Act 2007 (NT)||Yes|
|WA||Surveillance Devices Act 1998 (WA)||No|
|SA||Listening and Surveillance Devices Act 1972 (SA)||No|
|ACT||Listening Devices Act 1992 (ACT)||No|
|NSW||Surveillance Devices Act 2007 (NSW)||No|
|Tasmania||Listening Devices Act 1991 (TAS)||No|