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On 11 April 2019 the Australian Government assumed a caretaker role, with an election to be held 18 May 2019.
Information on websites maintained by Comcare will be published in accordance with the Guidance on Caretaker Conventions until after the election and conclusion of the caretaker period.
To advise rehabilitation authorities about how Comcare supports early intervention management of injured employees, as soon as practicable after an injury occurs. This support allows rehabilitation authorities to commence Safety Rehabilitation and Compensation Act 1988 (SRC Act) rehabilitation with injured or impaired employees before Comcare has determined liability under section 14 of the SRC Act.
Early intervention rehabilitation
Starting rehabilitation as soon as practicable after an injury or on the request of an injured employee, sets an expectation of an early return to work. In most cases this leads to better return to work outcomes and reduces the human and financial costs associated with workers' compensation claims or other forms of leave.
Employers may become aware of an employee’s injury through:
- any notification of a workplace injury
- any request by an employee for a rehabilitation assessment
- any report or notification of an employee being unable to perform his or her normal duties or reporting symptoms or discomfort
- any workplace absences, especially any unplanned absence of three or more days
- identification of any barriers to successful rehabilitation or return to work
- other factors, such as previous injury, complex medical diagnosis or severe injury
- any medical evidence or prognosis suggesting a possibility of re-injury at work
- factors in the work environment, including any perceived or actual adverse relationship with supervisors or co-workers.
Once aware of an employee’s injury an employer may provide rehabilitation as either:
- non-compensable rehabilitation assessment and program, for example, an employee's injury is not suffered or incurred in the course of their employment
- rehabilitation assessment and program under sections 36 and 37 of the SRC Act,for example,an employee's injury is suffered or incurred in the course of their employment.
Either of the above can be provided by the employer.
Where a claim has been lodged by the employee, the costs associated with any examination for the rehabilitation assessment and delivery of any rehabilitation program that occurred prior to the determination of liability will be payable by Comcare.
Should Comcare subsequently deny liability in respect of the claimed injury, the case manager can no longer continue to arrange a rehabilitation assessment or continue to provide a rehabilitation program under the SRC Act. The employer may still provide rehabilitation to the employee under other arrangements, but the SRC Act has no application for any such rehabilitation. Please note Comcare is unable to meet rehabilitation costs if the provider of the rehabilitation program is not approved by Comcare in accordance with section 34 of the SRC Act.
Rehabilitation assessments and programs under the SRC Act
Employers may commence rehabilitation under the SRC Act when an employee suffers and/or claims for an injury.
Employers should be aware that the costs associated with rehabilitation assessments and programs under the SRC Act are only payable:
- when the employee has notified the employer of the injury, and a signed claim form has been lodged to Comcare accompanied by a medical certificate
- between the date of injury and Comcare’s liability determination (if the claim is rejected)
- if liability for the injury exists under section 14, rehabilitation costs are payable as above and will continue to be payable
- if the provider of the rehabilitation program under section 34 of the SRC Act is Comcare approved.
Any rehabilitation costs incurred outside of these conditions are the responsibility of the employer.
An injury is most likely compensable if:
- notice of injury has been provided
- injury arose out of or in the course of employment
- employment significantly contributed to a disease
- injury resulted in an impairment or incapacity for work.
An injury is most likely not compensable if:
- an exclusionary provision under the SRC Act applies
- the injury did not occur in the course of employment.
If the employer forms the opinion that the injury is not likely to be compensable then they need to commence rehabilitation under their non-compensable framework. Likewise, if the employer forms the opinion that the injury is likely to be compensable or if there is uncertainty regarding liability then any rehabilitation activity should be commenced under the section 36 and/or section 37 of the SRC Act.
When liability is accepted by Comcare
When liability for injury is determined by Comcare under section 14 of the SRC Act, rehabilitation costs incurred by the employer, under section 36 and section 37 of the SRC Act are payable if:
- the employer, as the rehabilitation authority, determined rehabilitation under these provisions
- the provider of services under section 37 of the SRC Act was approved by Comcare, in accordance with section 34, at the time of the section 37 determination.
When liability is denied by Comcare
When liability for injury is denied by Comcare under section 14 of the SRC Act, rehabilitation costs as outlined above will also be payable, but only up to the date that Comcare notifies of the claim liability determination to the employer.
Subsection 4(8) of the SRC Act requires references to an 'injury suffered by an employee' in subsections 36(1) and 37(1) of the SRC Act be read as references to the compensable injury. Consequently, a rehabilitation authority has no powers under the SRC Act when Comcare has determined that there is no compensable injury.
When an employer makes a determination under section 36 or section 37 of the SRC Act, then in accordance with section 61, that determination is subject to reconsideration (in the event that the employee requests a reconsideration) under section 38 or section 62.
Comcare must reconsider the determination made by the employer, even if a claim for compensation has not yet been determined under section 14 of the SRC Act.
- An injury is suffered and claimed for but a claim has not yet been determined under section 14 by Comcare.
- An employee requests, in writing, that the employer (rehabilitation authority) arranges for an assessment of their capability to undertake a rehabilitation program.
- The rehabilitation authority arranges this assessment in accordance with s36(1).
- The s36 report indicates that the employee is totally incapacitated for work. Based on this information, the employer makes a determination not to provide a rehabilitation program under s37.
- The employee then requests a reconsideration under section 38. Comcare will review the rehabilitation authority's determination.
- If the reviewable decision made by Comcare varies the determination and the employer then proceeds with a rehabilitation program under section 37 of the SRC Act, the section 37 costs are payable under the Act until liability is determined by Comcare under section 14 of the SRC Act.
Comcare review officers should advise the employer and the employee that a reconsideration of the determination can only consider a section 36 or section 37 determination under the SRC Act. The review officer is unable to consider whether or not liability under section 14 exists.
Relevant sections of the SRC Act
Section 14: compensation for injuries
This section is the central provision of the SRC Act so far as liability of Comcare to pay compensation is concerned. Section 14 creates a liability in Comcare in respect of injuries suffered by employees which result in death, incapacity for work or impairment.
Section 34: approval of rehabilitation providers
This section provides Comcare with the authority to approve rehabilitation providers. The rehabilitation provider of the return to work program, under section 37 of the Act, must be approved by Comcare if the rehabilitation authority is seeking reimbursement of program costs.
Section 36: assessment of capability of undertaking rehabilitation program
This section provides the rehabilitation authority with the power to arrange a rehabilitation assessment at the request of an injured employee or at their discretion a rehabilitation assessment can be made at any time.
Section 37: provision of rehabilitation programs
This section provides a rehabilitation authority with the power to make a determination that an employee who has suffered an injury resulting in an incapacity for work or an impairment should undertake a rehabilitation program and, where the authority so determines, it may make arrangements with an approved program provider for the provision of a rehabilitation program for the employee.
Section 38: review of certain determinations by Comcare
This section provides Comcare with the authority to review a section 36 and/or section 37 determination made by the rehabilitation authority.
Frequently Asked Questions
What if the claim has been disallowed but is before the Administrative Appeals Tribunal?Where a claim has been disallowed the rehabilitation authority has no power to make a determination under section 36 or section 37. Any rehabilitation costs, in this situation will be the employer’s responsibility.
Is early intervention rehabilitation recommended for a claim that does not have a diagnosis (i.e. Non-compliant claim)?Yes. Because early intervention is not about liability it is about returning injured employees to work. However, the employer may consider whether rehabilitation should be non-statutory rather than under the SRC Act until diagnosis is established.
Can the rehabilitation authority suspend compensation under section 36 and or section 37 before liability has been determined by Comcare?Yes. If liability is subsequently accepted, the period of suspension for non-compliance under section 36 or section 37 will be enforced. In other words, payment of entitlements under the SRC Act will not commence until the employee complies.
What about medical expenses incurred by the injured employee?Medical expenses are not reimbursed under section 36 or section 37. Comcare cannot pay medical costs under section 16 of the SRC Act, until the compensation claim is accepted.