McIntosh v Secretary, Department of Education [2026] NSWPIC 285; (20 May 2026)

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Key takeaways

The Personal Injury Commission (PIC) considered whether a worker could be directed to attend an independent medical examination (IME) arranged by an insurer where liability had been denied before any independent medical evidence was obtained. The Member refused the respondent’s application for an order compelling attendance, finding that the insurer had failed to comply with the mandatory obligations in Part 7 of the SIRA Workers Compensation Guidelines (Guidelines).

Brief facts

The applicant alleged a psychological injury arising from her employment with the Department of Education and claimed weekly payments and medical expenses.

On 21 March 2025, the insurer denied liability, disputing that the injury arose out of or was received in the course of employment, that employment was a substantial contributing factor, and relying on s 11A of the Workers Compensation Act 1987 (NSW) (1987 Act).

The insurer noted that the treating practitioner was a general practitioner rather than a psychiatrist, and considered that specialist psychiatric opinion was required, advising that it was arranging an IME.

The applicant’s solicitor advised the insurer that the applicant would not attend the IME, relying on s 119(4) of the Workers Compensation Act 1998 (NSW) (1998 Act).

On 17 September 2025, the applicant’s solicitor sought a review of the liability decision, supported by an IME report. Following review on 3 November 2025, the insurer maintained its denial and its requirement that the applicant attend an IME, relying on ss 71 and 119 of the 1998 Act.

The applicant objected on the basis that the referral was not arranged in accordance with the Guidelines. At the preliminary conference, the respondent sought an order compelling attendance or, alternatively, dismissal of the proceedings.

Judgment

Section 119 of the 1998 Act permits an employer to require a worker to submit to a medical examination, with suspension of benefits as a consequence of non-compliance. However, subsection (4) provides that a worker is not required to submit to examination otherwise than in accordance with the Guidelines.

Under the Guidelines, a referral for an IME is only appropriate when information from the treating practitioner is inadequate, unavailable, or inconsistent, the referrer has been unable to resolve the issue directly with the practitioner, and evidence of attempts to resolve the issue is documented on the claim file.

The Member rejected the submission that the treating practitioner’s opinion was inadequate simply because that practitioner was a general practitioner rather than a psychiatrist.

The Member also rejected reliance on Part 7.6 of the Guidelines, which provides for subsequent IMEs where a worker lodges a review and relies upon additional medical information.

The respondent’s argument that natural justice, procedural fairness, and the general provisions of the Personal Injury Commission Act 2020 (NSW) (PIC Act) and Personal Injury Commission Rules 2021 (NSW) (PIC Rules) justified an order compelling attendance was rejected, as s119(4) and the Guidelines set out specific powers.

Accordingly, the Member refused the respondent’s application, finding that the respondent had failed to demonstrate compliance with Part 7 of the Guidelines and that no discretionary provisions existed to dispense with that compliance.

Implications

This decision reinforces an insurer’s right to compel a worker to attend an IME under s 119 of the 1998 Act is strictly conditional upon compliance with Part 7 of the Guidelines. Insurers cannot rely on general concepts of procedural fairness or the broad procedural powers of the PIC Act and PIC Rules to overcome non-compliance with those requirements.