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20.25 No payment if suspended under S37(7) - (rehabilitation)


Section 37 of the SRCA deals with the provision of rehabilitation programs. S37(1) provides that a delegate may determine that an employee will undertake a rehabilitation program. Furthermore, Section 37(7) says:

              37(7) Where an employee refuses or fails, without reasonable excuse, to undertake a rehabilitation program provided for the employee under this section, the employee's rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the employee begins to undertake the program.

This provision operates similarly to suspensions under S57(2) in that all suspensions are 'self actuating' i.e. triggered by the client's act of non-compliance rather than any determination by a delegate. S37(7) suspensions are therefore not appealable.

However unlike S57(2) a S37(7) suspension relates to a failure of rehabilitation, which seeks to ameliorate the effects of any and all injuries. Therefore, once a suspension is in place weekly payments may not be made in respect to any weekly payments, no matter what injury caused that incapacity. For example, if a suspension was in place in respect of non-compliance with a rehabilitation program originally devised to deal with the effects of an injury, and subsequently the client also became incapacitated due to the progression of another ailment, there would be no return to weekly payments. A suspension under S37(7) continues to apply until the client complies with the approved Plan, and independently of which, how many, or in what sequence the client's compensable injuries caused incapacity.

Thus for the present purposes delegates should not approve weekly payments until having first checked whether a S37(7) suspension is in place.

Furthermore, if and when the suspension is terminated by the client's eventual compliance, compensation becomes payable only from the date of that compliance. No back-payment can be made in respect of the suspension period. The suspension has actually annulled any entitlement for that period when it was in force.