Thursday 7 December 2023
When a worker has requested an assessment pursuant to section 22 of the Return to Work Act 2014 (the Act), it is general practice for the respective parties to agree a report request that is to be sent to the assessor detailing the history of the claim and any other relevant matters to be considered.
The recent decision of Sullivan v Return to Work Corporation [2023] SAET 109 illustrates some of the issues that can arise when the parties cannot agree the content of the request.
The key facts of the case can be identified as follows:
- The worker had in fact sustained multiple injuries and there was a dispute between the parties as to whether some of the body parts were work related or not,
- The dispute between the parties led to a delay in the assessment proceeding,
- Upon an application for an expedited decision, a Commissioner of the Tribunal made orders requiring the claims agent to provide a commissioning letter requesting an assessment of the worker’s permanent impairments and to arrange an examination with Dr D’Onise within certain time periods,
- On the making of the orders, the Compensating Authority filed an application for an internal review of the orders made pursuant to section 66 of the South Australian Employment Tribunal Act 2014 (the SAET Act).
The matter came on before Deputy President Judge Rossi and he noted the requirements of section 22 of the Act in relation to the assessment of multiple body parts. He also noted the requirements of the Impairment Assessment Guidelines (IAG’s), and in particular Chapter 1.34 that requires the requestor to provide all relevant information to the assessor. In addition, the requestor must ensure that the worker is provided with the report request prior to it being sent to the assessor and giving the worker at least 10 days to consider the request and have an opportunity to raise any issues, errors or omissions before the report request is sent to the assessor.
Rossi DP observed that while the IAG’s require the requestor to liaise with the worker to ensure all relevant and accurate information is provided to the assessor, it is the requestor who is to communicate directly with the assessor and the responsibility ultimately rests with the requestor to ensure that all relevant information is provided accurately to the assessor (refer para 10).
His Honour turned his attention to the operation of sections 97 and 113 of the Act and section 66 of the SAET Act that relate to reviewable decisions and the special jurisdiction of the Tribunal. He also noted the application of section 115(1)(aa) of the Act that only became operative on 1 August 2022. This required him to review the case of Life Care Inc v Keuning [2022] SAET 80, a case in which he was the presiding judge. As His Honour noted in that matter, the special jurisdiction of the Tribunal does not empower the Tribunal to conduct a broad review of various and potentially interrelated administrative steps to be undertaken under the s 22 process. It also does not permit a sweeping order as to when an assessment is to take place where matters ancillary and necessary for that assessment have not been undertaken.
In essence, the Deputy President was satisfied that section 115(1)(aa) was limited to those directions that the Tribunal considers necessary to expedite the assessment, but otherwise it is for the requestor to finalise the report as part of its statutory obligations. The role of the Tribunal was not to hear competing submissions and to determine the date of the injury to be communicated to the assessor. Where the discharge of that function results in a reviewable decision, then it is open to the Tribunal to deal with that issue by way of a hearing de novo.