This is an application for directions by the respondent seeking an order:
[2]
That the applicant be ordered to attend an independent medical examination with Dr Christopher Brown on 10 July 2025 pursuant to rule 224 of the South Australian Tribunal Rules 2024.
[3]
The applicant has been employed by the respondent as an Education Support Officer since 2022.
On 11 January 2023 in the course of her employment the applicant fell and sustained an injury to her right hand and wrist. A compensation claim was submitted on 21 February 2023 and was accepted by the respondent on 19 April 2023 for "right hand soft tissue injury".
On or about 11 November 2023 the applicant submitted a further claim which was accepted by the respondent for right shoulder adhesive capsulitis as a consequence of the right hand injury.
During 2023 the applicant was diagnosed with, and treated for, Chronic Regional Pain Syndrome Type 1 (CRPS) as a consequence of her right hand injury. The diagnosis was made by Dr Graham Wright. The respondent arranged an independent medical examination (IME) with Dr Champion who provided a report dated 5 September 2023 that confirmed the diagnosis and described the condition as "very severe".
By email dated 29 January 2024 from the applicant personally to the respondent, the applicant requested that she be considered a "seriously injured worker" on an interim basis pursuant to s 21(3) of the Return to Work Act 2014 (RTW Act).
In response, the respondent arranged a review appointment with Dr Champion. In his report of 6 May 2024, Dr Champion confirmed his CRPS diagnosis and provided an indicative whole person impairment (WPI) assessment of 51%.
The respondent then emailed the applicant on 24 May 2024 to advise that determination of the s 21(3) application would be deferred until the expiry of the second entitlement period on 11 January 2025.
Having subsequently engaged solicitors, the applicant's solicitor on 14 November 2024 sought that the s 21(3) application be determined.
In response, the respondent's solicitors arranged an IME with Dr Kapur which the applicant declined to attend. An application for expedited decision was lodged on 11 December 2024.
On 20 December 2024 the respondent determined to reject the s 21(3) claim. It is the review of that determination which is the subject of these proceedings.
At this point, it is worth noting the expressed reasons for that determination, which are as follows:
[4]
a) No proper claim for CRPS had been made;
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> b) In the alternative, the criteria to enable a WPI assessment for CRPS had not been met, namely the diagnosis had been present for more than 1 year and verified by more than one examining physician, with other diagnoses had been excluded;
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> c) By failing to attend the appointment with Dr Kapur, the respondent was denied the opportunity to undertake proper investigations.
[5]
In May 2025, the respondent sought to have the applicant examined by Dr Chris Brown (Dr Kapur no longer being available). That appointment is scheduled for 10 July 2025. The applicant declines to attend and that declinature is the subject of the present application.
[6]
(a) The claim for CRPS has been accepted by the Respondent.
(b) There is no requirement that the Applicant attend an accredited assessor for the purpose of determining a s 21(3) application or compensability. Regulation 13 of the Return to Work Regulations simply requires that a s 21(3) application is to be based on evidence from a "medical practitioner".
[7]
(c) There is no requirement that two accredited assessors confirm the diagnosis of CRPS for the purpose of determining a s 21(3) application.
[8]
(d) The Applicant has already attended independent medical examinations with Dr. Champion on two occasions at the request of the claims agent including on an occasion following the Applicant's claim pursuant to s 21(3).
[9]
(e) Dr. Champion has provided reports in relation to both compensability and an indicative assessment in relation to CRPS.
[10]
(f) Dr. Wright has provided reports in relation to both compensability and an indicative assessment relating to CRPS.
[11]
(g) Dr. Sood has provided reports in support of a diagnosis of CRPS.
(h) Mr Stephen Ranford provided a report supporting a diagnosis of CRPS.
(i) The radiological reports confirm a diagnosis of CRPS.
(j) The Respondent has failed to provide a copy of the commissioning letter and particulars of the purpose of the appointment with Dr. Brown beyond indicating he is an accredited assessor for upper limb CRPS.
[12]
(k) The Respondent has failed to answer the issues raised in my letter dated 7 May 2025.
[13]
(l) The Respondent elected to delay the determination of the application pursuant to s 21(3) without explanation or reason.
[14]
(m) A further assessment is unnecessary and unreasonable.
[15]
In her written outline and oral submissions, the applicant also asserts the Tribunal does not have the power to order a worker to attend an independent medical examination.
[16]
The Tribunal does have the power to require a worker to attend an IME and to order a stay of proceedings until the worker attends such an examination.
No claim for CRPS has ever been made or determined. The fact that all expenses relating to the applicant's treatment have been paid by the respondent cannot amount to an admission of liability: s 177 RTW Act.
Because CRPS is a vastly variable condition, as the last IME was in May 2024 it is reasonable for the respondent to seek a further assessment.
Further, there is no real prejudice to the applicant in being required to attend such an examination.
[17]
This matter should never have been allowed to progress to this point. The reason why the s 21(3) application was not initially assessed and determined I consider spurious. There was no proper reason to defer a determination of the application until the conclusion of the second entitlement period.
Nevertheless, the Tribunal is required to review the proceedings as now on foot.
Although it is unlikely significant change has occurred in the applicant's condition since Dr Champion's last review, given the nature of CRPS, it is possibly so. The Tribunal will need to determine the applicant's entitlement to an interim determination as a seriously injured worker as at the time of its decision. In those circumstances, current medical evidence is preferable.
The fact that the respondent seeks to arrange the IME otherwise than with Dr Champion is not explained by the respondent. In the absence of any such explanation, it is hard to resist the conclusion that the respondent is doctor shopping in the hope of obtaining a more favourable opinion in its defence of the claim.
However, once it is determined that a review appointment should be permitted, I do not consider the Tribunal can dictate by which doctor the IME is undertaken. It is sufficient that the doctor nominated is appropriately qualified and not personally precluded for any reason. As I understand it, Dr Brown, as with Dr Champion, is qualified to undertake CRPS assessments for the purposes of WPI.
Accordingly, the entitlement for an order to be made is established.
[18]
In Hussain v Return to Work Corporation of South Australia,[1] Rossi DPJ held that there was an implied power under the South Australian Employment Tribunal Act2014 for the Tribunal to order a worker to attend a medical examination, which power was made express under Rule 213 of the South Australian Employment Tribunal Rules 2022 (SAET Rules 2022).
Rule 213 of the SAET Rules 2022 is now Rule 224 of the SAET Rules 2024 and provides:
[19]
(1) Subject to this rule, in any proceeding before the Tribunal in which the physical or mental condition of a person is a relevant issue and the person seeks a benefit or payment to which medical evidence may be relevant, another party may make an application to the Tribunal under this rule seeking an order that the person submit to examination by a specified health practitioner at a specified time and place.
[20]
(2) A party making an application under this rule must organise the examination, provide the person to be examined with reasonable notice of the examination and be responsible for any fee or charge associated with the examination.
[21]
(3) A party making an application under this rule must, if requested by the person or their representative, pay to or on behalf of the person travel and/or parking costs of a person attending the medical examination.
[22]
(4) Where a person opposes an application made under this rule or attends the examination but does not do or answer all things reasonably requested by the health practitioner to facilitate the examination, the Tribunal may on application by another party, stay the proceedings or make such other order or direction as is appropriate.
[23]
I am satisfied that an order should be made under Rule 224(1) that the applicant submit to the medical examination with Dr Brown on 10 July 2024 as arranged by the respondent. Should she fail to do so and to co-operate with the examination, then the respondent is at liberty to apply for the proceedings to be stayed.