We recently wrote about the circumstances in which the South Australian Employment Tribunal would make an order compelling a worker to attend an Independent Medical Examination (IME).  That article can be found here.

The recent decision of the Tribunal in Naeem Dar v SA Health Women’s and Children’s Health Network [2026] SAET 131 (Dar) concerns an application by a respondent self-insured employer, seeking an order for an applicant worker to attend an IME.  Her Honour Deputy President Judge Kelly has reiterated in her judgement that such applications turn on the individual facts of each specific case.

Relevantly, the substantive proceedings in Dar concern an application by the worker for suitable employment under Section 18 of the Return to Work Act 2014 (SA) (RTW Act), which is a unique scenario which was not addressed in our previous article.

Background facts of Dar decision

The worker, a Sterilisation Technician, sustained a work injury to his right hand in February 2023.  He then developed a consequential work injury in February 2024.  His claims for both injuries were accepted.  In mid-2024 the worker returned to work as a Sterilisation Technician performing restricted duties, but on, or around, 14 October 2024 was directed away from work.

On 23 April 2025, the worker sought suitable employment within the Central Sterilising Department (CSD) by notice pursuant to Section 18(3)(b) of the RTW Act and, on 6 June 2025, he made an application to the Tribunal pursuant to Section 18 of the RTW Act (the Section 18 Application).

The respondent’s position on the Section 18 Application was that:

• It was not reasonably practicable to offer the worker employment in the CSD; and
• If there was an obligation to provide suitable employment pursuant to Section 18 of the RTW Act, then this obligation had been satisfied by offering the worker a Theatre Orderly role (which represented ‘suitable employment’). The worker’s refusal to accept the Theatre Orderly role demonstrated that he was not ready, willing and able to return to work.

Earlier correspondence from the respondent had indicated that there was a discrepancy in the medical evidence obtained from the worker’s treating doctor and a physiotherapist.  The discrepancy related to whether the worker remained incapacitated for work as result of his work injuries, however this was not referred to in the Statement of Issues and Contentions (SOIC) filed by the respondent.  Such an ongoing incapacity is required in order for the worker to be able to rely on Section 18.

On 14 April 2026, the respondent first asked the worker to attend an IME and the worker repeatedly declined to attend.  Between 14 April 2026 and 9 September 2026, the respondent had advised on multiple occasions that if the worker declined to attend an IME that they would seek an order compelling him to attend.  However, such an order was not sought until 9 September 2026, being three months after trial orders had been made listing the dispute for a trial to commence on 9 November 2026.  The IME proposed by the respondent was to be with an occupational physician, and not with a practitioner that the worker had previously seen.

Reasoning

Her Honour referred to Hussain v Return to Work Corporation of South Australia [2024] SAET 98, and stated that “the relevant question is whether the party requesting the direction has established to the satisfaction of the Tribunal that the examination is reasonably required and that the intervention of the Tribunal is reasonably sought.”

Her Honour also referred to Mitsubishi Motors Australia Ltd v Warren [1999] SAWCT 88, and stated that “the issue of reasonableness of the examination may relate to the conduct of the litigation by the parties, and in particular the compensating authority seeking the examination.”

Matters that Her Honour considered relevant when making her decision were:’

• That the respondent’s SOIC did not contend that the worker no longer had an incapacity for work;
• A new medical practitioner could only provide their own opinion as to capacity and could not comment on the discrepancy between the evidence already obtained;
• No new facts had come to light in the matter since the functional capacity evaluation performed by the physiotherapist which would make an IME with an occupational physician reasonably required;
• The respondent’s application was made three months after the dispute was listed for trial, and two months before the trial was set to take place;
• No IME was sought before the worker was directed away from work or before the respondent responded to the worker’s notice under Section 18;
• Time is of the essence in Section 18 applications and, in this case, allowing the order would almost certainly mean the trial would be adjourned.

Accordingly, Her Honour declined the make an order compelling the worker to attend an IME, or for a stay of the proceedings until the worker attended an IME.

Lessons to be learned

In addition to the factors to be considered that we addressed in our previous article (found here), it is clear from the Dar decision that the following additional factors should also be considered:

• What is the nature of the substantive issue in dispute? Is it a matter where time is of the essence?
• Prior to seeking the order for the worker to attend an IME, what opportunity has the employer or compensating authority already had to seek such an order? The longer the delay in making the application, the less likelihood of the application being successful.

It remains clear that the Tribunal will only exercise its discretion to make such an order in limited and very fact dependent circumstances.