Early intervention rehabilitation - information sheet for rehabilitation authorities
Purpose
To advise rehabilitation authorities about Comcare's early intervention strategy, which encourages premium paying agencies to commence rehabilitation, for their injured employees as soon as the injury occurs. In some cases, before liability has been determined by the relevant authority under section 14 of the Safety Rehabilitation and Compensation Act 1988 (SRC Act).
For the purpose of this information sheet:
- the relevant authority is Comcare, and
- the rehabilitation authority is the employer liable for an employee's injury that has arisen in the course of their employment.
Early intervention rehabilitation
The benefit of the employer providing 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 which reduces the human and financial costs associated with workers' compensation claims or other forms of leave.
Employers, once aware of an employee's injury, 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, or
- 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 their of employment.
Either of the above can be provided by the employer.
However, if an employer considers that their employee's injury arose in the course of their employment, the employer may then choose to commence rehabilitation under section 36 and section 37 of the SRC Act.
Early intervention rehabilitation provides the employer with the opportunity to commence rehabilitation under the Act prior to a decision to accept liability under the Act is made and therefore reduce potential compensation costs associated with time off work. Employers should note that by so doing, they are acknowledging that they believe that liability exists for this injury under the SRC Act.
However, Comcare can not reimburse rehabilitation costs incurred if:
- there is no liability under section 14 of the SRC Act, or
- liability is found under the SRC Act but the provider of the rehabilitation program is not approved by Comcare in accordance with section 34.
Early intervention benefits both employer and employee. The benefits to employers undertaking rehabilitation far outweigh those of holding off until a decision on liability has been made.
Rehabilitation assessments and programs under the SRC Act
Employers may commence rehabilitation under the SRC Act when an employee suffers an injury and the injury is most likely compensable under the SRC Act. Injuries that will most likely benefit from early intervention rehabilitation include:
- psychological injury
- overuse injury, and
- back injury.
However, employers should be aware that the costs associated with rehabilitation assessments and programs under the SRC Act are only payable:
- if liability for the injury exists under section 14, and
- the provider of the section 37 rehabilitation program is Comcare approved, and
- the rehabilitation costs are incurred on or after the date of injury as deemed by Comcare.
In the event that liability is not found by Comcare the employer is responsible for the rehabilitation costs.
An injury is most likely compensable if:
- notice of injury has been provided, and
- injury arose out of or in the course of employment, or
- employment materially contributed to injury, and
- injury resulted in incapacity for work or impairment.
An injury is most likely not compensable if:
- an exclusionary provision under the SRC Act applies, or
- the injury did not occur in the course of employment.
If the agency 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 agency forms the opinion that the injury is likely to be compensable then any rehabilitation activity should be commenced under the section 36 and/or section 37.
Liability accepted by Comcare
When liability for injury is accepted by Comcare under section 14 of the SRC Act, compensation is payable for rehabilitation costs incurred by the employer, under section 36 and section 37 of the SRC Act if:
- the employer determined rehabilitation under these provisions, and
- the provider of the section 37 services was approved by Comcare, in accordance with section 34, at the time of the section 37 determination.
Liability denied by Comcare
When liability for injury is denied by Comcare under section 14 of the SRC Act, compensation is not payable for rehabilitation costs incurred by 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) to be read as references to the compensable injury. Consequently, a rehabilitation authority has no powers under the SRC Act when there is no compensable injury.
This means that the assessment or program offered by the employer, prior to Comcare's determination to deny liability is non-statutory rehabilitation and therefore the costs must be met by the employer.
Reconsideration requests
When an employer makes a determination, in accordance with section 61, under section 36 or section 37 of the SRC Act 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 and rehabilitation has not been lodged or determined under section 14 of the SRC Act. However compensation costs for rehabilitation assessment or program can not be reimbursed, whatever the reconsideration outcome, until liability exists under section 14.
Example
- An injury is suffered but a claim has not yet been lodged or determined under section 14 by Comcare (the relevant authority).
- An employee requests, in writing, that the employer (rehabilitation authority) arrange for an assessment of their capability to undertake a rehabilitation program.
- The rehabilitation authority then makes an determination, to refuse to arrange an assessment under section 36 of the SRC Act, because they consider the employee to be totally incapacitated with their injury.
- The employee then requests a reconsideration under section 38. Comcare (the relevant authority) will review the rehabilitation authority's determination.
- If the reviewable decision made by Comcare varies the determination and the employer then proceeds with an assessment under section 36 of the SRC Act the section 36 costs are not payable under the Act until liability is found by Comcare under section 14 of the SRC Act.
Useful paragraph
Comcare independent review advisors (IRO's) should advise the employer and the employee that a reconsideration of the determination can only consider a section 36 or section 37 determination. The IRO is unable to consider whether or not liability under section 14 exists. The reviewable decision will be notified in writing by Comcare and should include the following paragraph:
'This is a reviewable decision under section 38 or section 62 of the Safety Rehabilitation and Compensation Act 1988 upon reconsideration of a determination made on [insert date] under section 36 or section 37 of the SRC Act.
It is not a determination or reconsideration of any determination under section 14 or any other provision of Part II of the SRC Act and does not create liability for payment of compensation by Comcare.
No such liability to pay compensation can arise unless the employee has given notice and lodged a claim for rehabilitation and compensation in accordance with section 53 and section 54 of the SRC Act and liability to pay compensation for injury has been determined under the relevant provisions of Part II of the SRC Act.'
Relevant legislation
Section 4(8): interpretation
This section requires references to an 'injury suffered by an employee' in subsections 36(1) and 37(1) of the SRC Act to be read as references to the compensable injury. Meaning a rehabilitation authority has no powers under section 36 and 37 where there is no compensable injury.
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 (the liable employer) 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 (the liable employer) 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.
Relevant Law
Commonwealth v Janssen [1994] 2 Qd R 596 and Walsh v Commonwealth (1998) 155 ALR 182 it was held that compensation is payable under the Act if the relevant authority would be liable under section 14, even though no claim has been lodged or determined.
Frequently Asked Questions
1. 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 bourne by the employer.
2. Is early intervention rehabilitation recommended for a claim that does not have a diagnosis (ie. non compliant claim)?
Yes. Because early intervention is not about liability it is about returning injured employees to work. However rehabilitation should be non statutory rather than under the Act until diagnosis is established and only if the employer is of the view that liability would most likely be accepted by Comcare.
3. 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 Act will not commence until the employee complies.
4. What about medical expenses incurred by the injured employee?
Medical expenses are not reimbursed under section 36 or section 37. Therefore medical costs can not be paid by Comcare, under section 16 of the Act, until the compensation claim is accepted.