The employer had four treating doctors it could have asked - it went straight to a new one
A long-serving FedEx courier driver has won a challenge against his employer's attempt to send him to an independent orthopaedic surgeon, after Australia's Administrative Review Tribunal found FedEx skipped a mandatory step in the process.
The worker spent more than 30 years behind the wheel for FedEx Express Australia (formerly TNT Australia), delivering parcels until widespread osteoarthritis caught up with his hands, knees, right hip, and spine. By mid-2024, he could barely get through a shift.
"I'm struggling to continue work with my arthritic hands, knees, R hip and I have some spinal disc damage," the worker told FedEx when reporting his condition in May 2024. "Knees are completely gone, hands are shot."
He lodged a workers' compensation claim under the Safety, Rehabilitation and Compensation Act 1988. FedEx, with his consent, obtained information from his treating doctors and arranged for him to be examined by a rheumatologist. That examination was not compelled under the Act's formal examination power - it was arranged by agreement. The rheumatologist produced an expert report. FedEx then denied the claim. The worker sought reconsideration, lost again, and took the matter to the Tribunal.
Where it went sideways
While the Tribunal review of the compensation claim was pending, FedEx decided the existing medical evidence had "gaps" in relation to diagnosis, causation, and treatment from a musculoskeletal perspective. A FedEx Senior Workers Compensation Specialist determined the worker should undergo a telehealth examination with an orthopaedic surgeon under s 57(1) of the Act - the provision that allows an employer to compel an employee to attend a medical examination.
The worker refused. He argued FedEx had already had him examined by a rheumatologist whose opinion supported his claim, and that directing a second examination with a different specialist amounted to "doctor shopping."
FedEx disagreed. It maintained the existing reports did not adequately address each body part specified in the claim and that there was nothing stopping it from requiring a further examination.
The Guide that changed the game
The Tribunal did not make a finding on the doctor shopping allegation. But it did find FedEx had failed to comply with the Guide for Arranging Rehabilitation Assessments and Requiring Examinations 2024, which commenced in September 2024. The Guide is a piece of delegated legislation that sets the procedural rules employers must follow before directing a worker to attend an independent medical examination.
Under the Guide, before an employer can order an examination, it must first consider whether it already has enough information about the worker's circumstances. If it decides the information is insufficient, the Guide says the employer "should" request further information from the worker's treating doctor - and "should" rely on that doctor and whatever information is provided "as much as possible" before sending the worker to an independent specialist.
FedEx argued "should" left it with a choice. The Tribunal disagreed.
The decision found that "should" in this context was "instructional and directive." The Guide itself reinforces this: it says the circumstances making it "appropriate" to order an examination depend on the employer having complied with both the information-sufficiency check and the treating-doctor step. If the treating-doctor step were truly optional, the Tribunal reasoned, it would be "difficult to comprehend" how an employer could satisfy the Guide's own threshold for ordering an examination without doing what the Guide tells it to do.
In short: "should" effectively means "must" unless there are exceptional circumstances or compelling reasons to depart.
What FedEx missed
FedEx had written to the worker's GP back in May 2024, before the Guide came into effect. After the Guide commenced in September 2024, FedEx did not go back to any of the worker's treating doctors to address the gaps it later identified. It did not seek further information from the treating orthopaedic surgeon, who had documented the worker's "pain in multiple locations relating to underlying osteoarthritis" across both upper and lower extremities, spine, hip, and knees. Nor did it contact the rheumatologist or vascular surgeon who had also been involved in the worker's care.
Instead, in April 2026, FedEx went straight to the examination order. Its stated reason: an independent orthopaedic opinion was needed, the GP could not provide a specialist view, and the treating orthopaedic surgeon was "only treating you in respect of some of your ailments."
The Tribunal was unpersuaded. That characterisation did not account for the treating surgeon's own records, which covered far more than "some" ailments.
The Tribunal also drew support from Comcare's policy guidance, which states that arranging an independent medical examination "should only be considered when all other methods of obtaining the required medical information have been exhausted." No compelling reason to depart from that standard had been raised by either party.
The examination determination was set aside and remitted to FedEx for reconsideration in compliance with the Guide and the timetable already set for hearing the underlying compensation claim.
What it means for HR
The decision, handed down on November 6, 2026, does not resolve the worker's compensation claim, which remains before the Tribunal.
For HR and workers' compensation teams in the federal jurisdiction, the practical message is plain: under the 2024 Guide, requesting information from treating practitioners is not a box to tick once and forget. When new gaps are identified, the step must be revisited. Going straight to an independent examination - even with a sound rationale for wanting a specialist opinion - can undo the entire process.
