› Referral to independent medical adviser under s 121 Return to Work Act 2014 (SA) – whether material error in s 22 assessment required – good reason sufficient
Statutory Interpretation
› Harmonious construction
› Relationship between ss 22 and 121 Return to Work Act 2014 (SA) – leading and subordinate provisions
Administrative Law
› Procedural fairness
› Trial judge's use of medical text not in evidence without notice to parties – practical injustice – remittal to same judge
Evidence
› Expert opinion
› Admissibility of s 22 assessment – factual assumptions not established – Dasreef Pty Ltd v Hawchar
Quick Take
1On its proper construction, s 121 of the Return to Work Act 2014 (SA) confers a discretion to refer reassessment of whole person impairment to an independent medical adviser where there is a material error of fact or law in the s 22 permanent impairment assessment, or where good reason otherwise exists. A good reason is a material reason connected with the assessment of WPI, giving the Tribunal cause to apprehend that the assessment may miscarry. A finding of material error is sufficient but not necessary for a referral.
2A s 22 assessment is presumptively determinative, and a referral to an IMA does not of itself displace it. The Tribunal must distinguish between finding material error justifying departure from the s 22 assessment in final orders and an interlocutory referral to obtain further opinion that may reveal such error. Section 22 is not a 'leading provision' to which s 121 must yield, because the provisions operate harmoniously.
3A trial judge's reliance on a medical text not admitted into evidence, without notice to the parties or an opportunity for submissions, denies procedural fairness. On the facts, this did not require setting aside the IMA referral where good reason for it otherwise existed. Nor did it require remittal to a different judge where the contested diagnosis was left open for the IMA.
