Luke v Department of Primary Industries and Regions [2026] SASCA 133
On 29 October 2026, the Court of Appeal delivered its judgment in relation to an appeal against a decision of the Full Bench of the South Australian Employment Tribunal to refer the reassessment of whole person impairment (‘WPI’) to an independent medical adviser (‘IMA’).
Background
During the course of his employment, Mr Sean Luke sustained several injuries in relation to which he underwent a permanent impairment assessment (‘PIA’) pursuant to s 22 of the Return to Work Act 2014 (SA) (‘RTW Act’). Within that report, Mr Luke was assessed as having a 70% WPI and was diagnosed with radiculopathy arising from the work injury. The Department disputed that assessment, arguing that the reports were non-compliant, flawed and unreliable.
At first instance, the trial judge was not satisfied that the factual assumptions underlying the assessment had been established and therefore directed that the reassessment of WPI be referred to an IMA. Further, in finding that Mr Luke had not proved a work injury resulting in C6 radiculopathy and accordingly excluding that condition from the referral, his Honour relied on a medical text without giving notice to the parties or admitting the text into evidence.
Mr Luke appealed to the Full Bench of the SAET, which ultimately upheld the referral to an IMA but found that he had been denied procedural fairness and accordingly amended the directions to the IMA to ensure that radiculopathy remained open for assessment. The matter was remitted back to the trial judge to reconsider the material to accompany that referral.
Appeal to the Supreme Court of Appeal
Mr Luke sought permission to appeal the Full Bench’s decision, raising several questions of law, including but not limited to:-
Whether s 121 of the RTW Act provides a discretion to refer the reassessment of WPI to an IMA where there is no finding of material error of fact or law in the s 22 PIA;
Whether the trial judge found material error in the assessment sufficient to justify the referral;
Whether the trial judge gave legally adequate reasons for ordering the referral;
Whether it was reasonably open to refer the entire assessment of WPI to an IMA;
Whether the Full Bench should have set aside the trial judge’s decision and erred in remitting the matter to the same trial judge; and
Whether it was reasonably open to the trial judge to frame the questions and settle the material to be provided to the IMA in the terms that his Honour did.
The Department also filed a cross-appeal challenging the Full Bench’s findings that Mr Luke had been denied procedural fairness.
Decision
Livesey P, Stanley and Doyle JJA dismissed both Mr Luke’s appeal, as well as the Department’s cross-appeal, ultimately upholding the decision of the Full Bench to refer the assessment of Mr Luke’s WPI to an IMA.
Specifically, the Court of Appeal held:-
The discretionary power under s 121 of the RTW Act to refer a medical question to an IMA is not confined to cases of material error of fact or law but includes where there is a good reason to do so;
It was reasonably open on the facts found by the trial judge to refer the reassessment of WPI to an IMA;
His Honour provided legally adequate reasons for the referral;
His Honour was entitled to exercise his discretion to frame the questions and settle the list of documents to be provided to the IMA; and
Although Mr Luke was denied procedural fairness, the Full Bench was not required to set aside the trial judge’s findings that C6 radiculopathy had not been proved nor the referral to an IMA.
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