Information Sheet for Rehabilitation Authorities about Early Intervention Rehabilitation

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 (the 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 leave.  Early intervention rehabilitation provides the employer with the opportunity to commence rehabilitation under the Act prior to a decision to accept liability under the SRC Act is made and therefore reduce potential compensation costs associated with time off work.

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 section 36 and section 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.  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 Act. Injuries that will most likely benefit from early intervention rehabilitation include:

• psychological injury
• overuse injury
• 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

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.