When a worker makes a claim for compensation, an important part of the investigatory and determination phase of the claim is the “independent medical examination” (IME).  These are typically organised by the compensating authority (or self insured employer) to obtain an independent opinion about the worker’s injury, and can cover topics such as a diagnosis, causation, the connection with employment, and capacity for work.

The use of IMEs is not restricted to the initial investigation and determination stage, but can be a useful tool to gather information throughout the duration of a claim.  For instance, if the worker’s current capacity becomes relevant and/or problematic during the return to work phase.

Powers to Compel Worker to Attend an IME

Rule 224 of the South Australian Employment Tribunal Rules 2024 gives the Tribunal the power to make an order, on application by a party to proceedings, that a worker attend an IME where “the physical or mental condition of [that worker] is a relevant issue and the [worker] seeks a benefit or payment to which medical evidence may be relevant”.  If the worker is ordered to attend an IME and does not do so (or does not participate properly in the IME) then the Tribunal can, on application, stay the proceedings.

The Tribunal also has an implied power to order a worker to attend an IME, which is necessary “in order for the Tribunal to discharge the express powers conferred to it by the South Australian Employment Tribunal Act 2014 (SA) [“SAET Act”] and to achieve the major objectives of the [Return to Work Act 2014 (SA) (RTW Act)] and the SAET Act” (Jones v Return to Work Corporation of South Australia (Mader Contracting Pty Ltd) [2021] SAET 132 [99]). This power is a discretionary power, though.

A registered employer also has the ability, under Section 181 of the RTW Act to require the compensating authority to arrange an IME.

In addition to these powers, there are also powers under Rule 112.9 of the Uniform Civil Rules 2020 for an order to be made, on application, for a worker to attend an IME.

Competing Interests

In the matter of Barter v Local Government Association Workers Compensation Scheme [2022] SAET 137, His Honour Deputy President Judge Gilchrist helpfully set out the various considerations that must be made.

Firstly, he noted that “it should not be forgotten that requiring a worker to submit to such an examination is an invasion of personal liberty” and that, accordingly, an order would only be made for the worker to submit to an examination “if [the Tribunal] is satisfied that it is in the interests of justice to do so, and it is for the party seeking the examination to persuade the Court that its intervention is required.”

His Honour then noted that “it is in the public interest to ensure that workers only receive the compensation that they are due” which meant that “a compensating authority and an employer ought to be permitted to obtain the necessary and relevant information to defend claims made against them and to enable them to enter into informed negotiations for the purposes of compromising such claims.”

This was to be balanced against the “infringement to workers’ liberty in requiring them to submit to a medical examination.”

Orders Made by the Tribunal

The Tribunal has heard multiple applications on this issue, and each application has turned on the individual facts of that application.

Examples of the orders and considerations made include:

• Declining to vacate trial dates to allow for a worker to attend re-examinations on the basis that the self-insured employer had not identified “a relevant recent development beyond its control which would necessitate the granting of an adjournment” and it was not in the interests of justice to vacate the trial dates and adjourn the matter. (Bitar v Aged Care & Housing Group Inc [2019] SAET 245 [52]).
• Declining to make an order that a worker attend an IME arranged by the self-insured employer in the lead up to a trial, however, stipulating that if the worker failed to attend the IME that the proceedings would be stayed (Suleiman v Coles Group Limited [2020] SAET 172).
• Declining to make an order, at the request of a registered employer, that a worker attend an IME on the basis that the registered employer had not liaised with the compensating authority and made a request pursuant to Section 181 of the RTW Act requiring that the compensating authority have the worker submit to an examination (Jones v Return to Work Corporation of South Australia (Mader Contracting Pty Ltd) [2021] SAET 132).
• Declining to make an order that a worker attend an IME arranged by the self-insured employer, in a dispute regarding a worker’s level of whole person impairment, to gather updated evidence with respect to the worker’s level of pre-existing impairment, on the basis that His Honour “struggle[d] to see how a fact-to-face (sic) examination would assist in determining the level of impairment after the 2015 injury and before the 2018 injury, for the purposes of deduction” (Attrill v Department for Education [2024] SAET 50 [40]).
• Making an order requiring a worker to attend an IME on the basis that it was reasonable for the compensating authority to seek the worker’s examination in accordance with Section 31(2) of the RTW Act so that they could determine the worker’s claim to be treated as a seriously injured worker on an interim basis. Further, His Honour noted that it was “clear that [the worker] will not voluntarily attend the scheduled consultation” (Hussain v Return to Work Corporation of South Australia [2024] SAET 98 [64]).
• Confirming, on appeal of the decision referred to in the above paragraph, the requirement of the worker to attend the IME as requested, as it was “reasonably required as part of the [compensating authority’s] preparation of its case to be presented upon the hearing of the substantive proceedings” which “outweighs any likely disadvantage to the applicant” (Hussain v Return to Work Corporation of South Australia [2024] SAET 114 [63]).
• Making an order requiring a worker to attend an IME, in the context of an application by the worker to be taken to be a seriously injured worker on an interim basis, on the basis that current medical evidence was required in order for the Tribunal to determine the worker’s application (Kristyn Wensley v Catholic Church Endowment Society Inc [2025] SAET 63).

It is interesting to note that the last three decisions referred to all related to the diagnosis of Chronic Regional Pain Syndrome and applications by the worker to be taken to be a seriously injured worker on an interim basis.

Lessons to be Learned

There are a number of other authorities on this topic, but the above selection is representative of the current attitude of the Tribunal.

With this in mind, if employers (whether self-insured or registered) wish to seek an order compelling a worker to attend an IME, the following factors should be considered:

• If they are a registered employer, have they sought to have the compensating authority arrange an IME pursuant to Section 181 of the RTW Act?
• Is the IME that is sought before or after the determination of a claim, and if after, has there been a material change in circumstances that requires further examination?
• What are the issues in dispute? For instance, is fluctuating capacity or MMI in dispute?  Is current medical evidence required?
• Are there any deadlines or time frames for the provision of expert evidence? If so, and if outside of those timeframes, are there any recent developments beyond the control of the employer which could sway the interests of justice in favour of an order being made?
• Is attendance by a worker at an IME for examination reasonably required as part of a party’s preparation of its case for an upcoming hearing?
• What is the prejudice to the worker in being required to attend an IME?
  1. For instance, how many other IME’s have they attended and when, and have they included an examination by a doctor in the same specialty?
  2. Can the information sought be provided through a review “on the papers” rather than a face-to-face IME?
  3. If proceedings were to be stayed what is the proximity to listed trial dates, and what would the financial impact on the worker be?

Whilst the authorities show that applications to compel a worker to attend an IME turn on their specific facts, it is clear that the Tribunal will balance all of the competing interests and will only exercise its discretion to make such an order in limited and very fact dependent circumstances.