Publications

On 20 May 2026 the Personal Injury Commission (PIC) decided that an injured worker was not required to attend an Independent Medical Examination (IME) for the insurer on the basis that the insurer did not comply with Part 7 of the SIRA Workers Compensation Guidelines.

BACKGROUND

In McIntosh v Secretary, Department of Education [2026] NSWPIC 285, the worker alleged she suffered a psychological injury as a result of her employment with the Department of Education and claimed workers compensation benefits.

On 21 March 2025 the insurer for the Department of Education denied liability for the worker’s claim on the basis that it believed the injury did not arise out of the workers employment with the Department of Education and her employment was not a substantial contributing factor to her injury as required by sections 4 and 9A of the Workers Compensation Act 1987. If it was found the worker suffered a psychological injury at work, the insurer argued, in the alternative, that the injury was “wholly or predominantly caused by reasonable action taken or proposed to be taken by the employer with respect to discipline” and therefore they were not liable in the matter.

In deciding that the worker was not entitled to workers compensation benefits including weekly compensation or medical expenses, the insurer stated they required a psychiatric opinion on diagnosis and causation as the worker’s general practitioner’s opinion was not sufficient given the general practitioner is not a psychiatrist. The insurer then arranged an assessment with an independent psychiatrist and advised their liability decision would be reviewed on receipt of the psychiatrist report, clinical records and factual material.

On 6 June 2025 the insurer arranged an independent medical assessment to take place with Dr S Kumari (Psychiatrist) on 19 June 2025. The worker’s solicitors wrote to the insurer to advise the worker would not be attending the appointment relying on section 119(4) of the Workplace Injury Management and Workers Compensation Act 1998 which states that a worker is not required to submit themselves for examination at the direction of the employer where the employer has not complied with the SIRA Workers Compensation Guidelines.

On 17 September 2025 the worker’s solicitor wrote to the insurer seeking a review of its liability decision relying on a report by Dr Pothala (Psychiatrist) dated 4 September 2025.

On 3 November 2025 the insurer maintained their denial of the claim relying on section 71 of the Workplace Injury Management and Workers Compensation Act 1998 which stipulates the worker must co-operate fully in respect of the claim with the insurer and must comply with any reasonable request by the insurer to furnish specified information.

On 24 December 2025 the worker commenced proceedings in the PIC to dispute the decision of the insurer. PIC Member Diana Benk was required to determine if the worker should be directed to attend the independent medical examination.

For the worker to be successful, it had to be established that the insurer did not comply with the Workers Compensation Guidelines in arranging the independent medical examination and it was therefore unreasonable for the worker to be required to attend this examination.

What is an Independent Medical Examination (IME)?

An independent medical examination (IME) is an assessment conducted by an appropriately qualified and experienced medical practitioner to help resolve an issue with injury or claims management. An insurer may direct a worker to attend an IME who has given notice of an injury or is receiving weekly compensation. The insurer’s obligations when requiring a worker to attend an IME are set out in Part 7.1 of the SIRA Workers Compensation Guidelines.

What does the Workers Compensation Guidelines say?

Under Part 7.1 of the SIRA Workers Compensation Guidelines (“Guidelines”), an insurer may refer a worker to an IME when information from the treating medical practitioner(s) is inadequate, unavailable or inconsistent and the insurer is unable to resolve the problem directly with the practitioners.

An IME is deemed to be appropriate where the information required relates to:

• Diagnosis of an injury reported by the worker
• Determining the contribution of work incidents, duties and/or practices to the injury
• Whether the need for treatment results from the worker’s injury and is reasonably necessary
• Recommendations and/or need for treatment
• Capacity for pre-injury duties and hours
• The likelihood of and timeframe for recovery
• Capacity for other work/duties (descriptions of such duties are to be provided to the independent medical examiner)
• What past and/or ongoing incapacity results from the injury
• Physical capabilities and any activities that must be avoided

The reason for the referral must be documented on the claim file. Under Part 7.6 of the Guidelines, subsequent IMEs may only be arranged where:

• The employer/insurer has evidence that the worker’s injury has significantly changed or resolved, or
• The employer/insurer has a request for, or evidence of, a material change or need for material change in the manner or type of treatment, or
• The worker makes a claim for permanent impairment or work injury damages, or
• The worker requests a review after receiving a notice (issued under section 78 of the 1998 Act) and includes additional medical information that the employer/insurer is asked to consider, or
• The last IME was unable to be completed, or
• It has been at least six months since the last IME required by the employer/insurer, or
• The referrer can provide significant reasoning for the need for a referral in a shorter timeframe.

This reasoning must be documented in the claim file and provided in the written advice to the worker regarding the referral. This subsequent IME must be with the same independent medical examiner as the first IME unless the original examiner has ceased to practise, the specialty required to assess the injury has changed, the examiner no longer practises in a location convenient to the worker, or both parties agree that a different medical practitioner is required.

PIC MEMBER DECISION

Was the IME arranged by the insurer reasonable ?

Accordingly for an IME to be considered reasonable, the insurer must have complied with part 7 of the SIRA Workers Compensation Guidelines in arranging the independent medical examination.

Member Benk held that the Guidelines stipulate an IME is only reasonable when the information from the treating medical practitioner(s) is inadequate, unavailable or inconsistent and the insurer is unable to resolve the problem directly with the practitioners. There was no suggestion here that the insurer had sought such information from the treating practitioner.

The insurer argued that the medical evidence supporting the claim was insufficient as the nominated treating doctor is not a psychiatrist and therefore an IME was required. As the worker also provided further medical evidence in their review request dated 17 September 2025, the insurer argued it was entitled to have the worker attend a subsequent IME in accordance with part 7.6 of the Guidelines.

Member Benk found that, while the nominated treating doctor is not a psychiatrist, this does not render the opinion on causation, treatment and incapacity inadequate as the Guidelines only refer to a “medical practitioner” and so it is not expressly stated this opinion must be provided by a psychiatrist. As this was the only issue raised by the insurer, Member Benk was not satisfied that the insurer’s request to attend the IME was reasonable and in accordance with the SIRA Guidelines as a medical practitioner had provided an opinion on diagnosis and causation. In relation to the insurer’s request to have a supplementary IME in accordance with part 7.6 of the Guidelines, Member Bank found that a further IME cannot take place in the absence of an original examination.

Overall Member Benk found that the worker was not required to attend the proposed IME as the insurer had failed to comply with the mandatory obligations in Part 7 of the Guidelines which are mandatory obligations.

KEY TAKEAWAYS

This decision confirms the importance of insurer’s complying with section 119(4) of the Workplace Injury Management and Workers Compensation Act 1998 and Part 7 of the SIRA Workers Compensation Guidelines when arranging for injured workers to attend an independent medical examination. Failure to comply with these mandatory obligations may result in the worker not being required to attend the independent medical examination. The worker may then have the opportunity to dispute any dispute notice issued by the insurer without any medical evidence in reply from the insurer. The insurer does not have an unrestricted entitlement to require the worker to attend medicolegal appointments.

This article was published on 8 June 2026 by Carroll & O’Dea Lawyers and is based on the relevant state of the law (legislation, regulations and case law) at that date for the jurisdiction in which it is published. Please note this article does not constitute legal advice. If you ever need legal advice or want to discuss a legal problem, please contact us to see if we can help. You can reach us on 1800 059 278 or via the Contact us page on our website. (www.codea.com.au). If you or a loved one has been injured, use our Personal injury Claim Check now .