DEFENCE COMPENSATION INSTRUCTION - NO 34

MILITARY COMPENSATION SCHEME - SAFETY REHABILITATION AND COMPENSATION ACT 1988 (SRCA)

Subject

NON COMPLIANCE WITH THE REHABILITATION PROCESS

1.The purpose of this Defence Compensation Instruction is to clarify an injured person's rights and obligations in conjunction with the rehabilitation process and to explain the process of dealing with issues of non compliance.

Background

2.Sub section 36(4) of the SRCA states that “Where an employee refuses or fails, without reasonable excuse, to undergo an examination in accordance with a requirement, or in any way obstructs such an examination, 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 examination takes place.”

3.Sub section 37(7) of the SRCA states that “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.”

Policy

4.Accordingly clients may have their entitlement to benefits suspended when they have refused, unreasonably, to undertake an assessment or to participate in a rehabilitation program.  All entitlements to compensation, including medical, household assistance, attendant care and incapacity payments, are suspended in these cases until such time as the client undertakes the assessment, or agrees to participate in the rehabilitation program.  Once the Rehabilitation Coordinator takes action to suspend benefits, the client does not have the right to claim retrospective payment for the period of suspension, even when they subsequently agree to undertake the assessment, or to participate in the rehabilitation program.  Medical treatment or household assistance etc during the period of the suspension is not payable.

5.Suspension of benefits  is clearly a very serious step and should not be taken lightly.  Every effortt should be made to reach a mutually agreed rehabilitation plan with the client.

Reconsiderations and Appeals

6.The issue of rights to reconsideration and appeal when a client's compensation benefits have been suspended has been considered in both the AAT and in the Federal Court.  GEOFFREY VICTOR DAVIS v. COMCARE No. N96/1536 AAT No.12321 and BUCK v. COMCARE 66 FCR 359 both refer.

7.In Davis v Comcare the senior member of the AAT stated that “ ... any decision pursuant to ss.37(7) is self executing and does not require a decision of an administrative character to be made.”  In Buck v Comcare the Federal Court considered the issue of suspension of compensation benefits in accordance with sub section 57(2), which deals with employees who fail to undergo a medical examination and which is expressed in similar terms to sub section 37(7).  The AAT quoted this case in making it's finding in Davis v Comcare “that the tribunal has no jurisdiction” to consider the matter of suspension of benefits.

8.In Buck v Comcare, the Federal Court held that judicial review of a decision under sub section 57(2) is not available.  (Ballard et al 3rd edition 1997, pg 203).

9.It was held, by both the AAT in Davis v Comcare and the Federal Court in Buck v Comcare, that an employee seeking to challenge the suspension of their compensation benefits must do so in the Federal Court and a declaration pursuant to section 39B of the Judiciary Act 1903.  The Federal Court will only consider the question of “reasonable excuse” referred to in subsections 36(4), 37(7), and 57(2) of the SRCA.

10.Accordingly an client has no legal right to request a reconsideration, or of appeal to the AAT, in respect of any action taken in accordance with sub sections 36(4) and 37(7) of the SRCA.  Notwithstanding this, clients should have the opportunity to have their situation reviewed within MCRS, similar to the normal reconsiderations process.

Rights and Obligations

11.Standard Form SF5 contains general information in relation to a client's rights and obligations if they have been referred for rehabilitation under the SRCA.  This form contains general information concerning:

• the requirement to undergo an assessment under section 36 of the SRCA;
• the rehabilitation plan;
• access to the reconsiderations and appeals process;
• suspension of entitlements; and
• confidentiality, and access to their rehabilitation documentation.

A copy of SF5 should be forwarded to the client with standard letters SL4a, and SL3a informing an client of referral for rehabilitation assistance since this letter contains a determination under section 36.  SF5 should also accompany other determinations including rehabilitation program commencements (SF9), amendments (SF11), rejections (SL9), and closures (SL14 and SF13) under section 37.

12.Attachment 1 to this DCI outlines more specific information in respect of an client's rights and obligations.  This form is a useful adjunct to the rehabilitation assessment process.  It includes information about the client's right to:

• have a representative at any meeting;
• choose their own treating Doctor;
• claim reimbursement for travel expenses in certain circumstances;
• apply for review of decisions;
• be assessed for permanent impairment; and
• access their rehabilitation file.

Attachment 1 also includes information about the client's obligation to:

• undertake suitable employment;
• provide medical certification;
• participate and cooperate with their rehabilitation program;
• inform MCRS of any change to their personal circumstances; and
• attend medical and other appointments.

Suspension of entitlements

13.Discussion with all parties is essential prior to taking action under either sub sections 36(4) or 37(7) to suspend benefits.  The Rehabilitation Coordinator should discuss the situation with:

• the client, so that the Rehabilitation Coordinator is clear about their reasons for non-participation and to remind them of their obligations;
• the rehabilitation provider, to obtain their input and add to the Rehabilitation Coordinator's own understanding; and
• the Claims Manager responsible for managing the claim;
• and be confident that all the negotiation and conflict resolution strategies available to them have been utilised.

14.Documentation of rehabilitation intervention is fundamental to support any suspension action.  As well as the requirement (under section 38) to document all rehabilitation action, this information is essential to demonstrate the range of return to work options and services which have been discussed with the client, and their appropriateness to the injured client's circumstances.

15.This documentation should also include Return to Work medical guidelines which indicate the client's capacity to participate in vocational rehabilitation activities and return to work.

16.The basis of suspension action is that the client is not cooperating despite all reasonable efforts to accommodate them.  Clear documentation from the Rehabilitation Coordinator, approved rehabilitation provider and Claims Manager regarding all discussions with the client, reasons offered for non-participation in the program, and the efforts made to accommodate the client must exist.

17.Should the client profer a reason for non-compliance it is important that the reason be acknowledged.  If the reason is not considered valid, the client should be provided with clearly documented arguments why the reason is not considered valid.

18.A client who refuses to sign a rehabilitation plan is not considered to be non compliant with their rehabilitation program.  In such cases the Rehabilitation Coordinator should issue a determination under section 37 by signing the rehabilitation program and forward a copy of the program together with SF5 to the client.  This action provides the client with opportunity to participate in the actual program.

19.The Rehabilitation Coordinator should advise the client in writing of the suspension of benefits.  Attachment 2 to this DCI is a suggested standard letter for this purpose.

20.Any queries concerning this instruction should be directed to Glen Tye (ADCR) on (02) 6266 8639.

C. NEUMANN

ASPSIM

     June 1998

Attachments:

1. Standard form which explains a client's rights and obligations for use in conjunction with the rehabilitation assessment.
2. Suggested standard letter to advise the client of a decision to suspend benefits.

MILITARY COMPENSATION & REHABILITATION SERVICE

REHABILITATION RIGHTS AND OBLIGATIONS

This notice explains certain rights and obligations applicable to injured personnel who have claimed compensation under the Safety, Rehabilitation and Compensation Act 1988, and the Rehabilitation Coordinator has determined that they should undertake an assessment for rehabilitation and/or a program under Sections 36 and 37.  More detailed information on any specific issue can be obtained from any Military Compensation and Rehabilitation Section within the Department of Defence.

I, .................................................................... on the......................................................... day of .................................................................... 19        had the following information given to me by my Rehabilitation Counsellor .................................................................. during my initial rehabilitation assessment.

RIGHTS

• My right to involve my union or any other nominated representative at any meeting.
• My right to choose my own Doctor.
• My right to have reasonable costs reimbursed that have been incurred by me in order to participate in a rehabilitation program.  Travel to my normal workplace is excluded, however travel to attend medical and/or rehabilitation appointments which exceeds 50 kilometres can be considered.
• My right to lodge an application for a review regarding a decision made concerning my compensation claim, under section 64 of the Safety Rehabilitation and Compensation Act.  Any such request should be in writing and addressed to the Manager, Military Compensation and Rehabilitation Service (INSERT ADDRESS).
• My right to claim a compensation payment under section 24 of the Safety Rehabilitation and Compensation Act 1988, should I have a permanent residual disability once my condition has become stable.
• I have access to my rehabilitation file upon written request

OBLIGATIONS

• My obligation to undertake suitable work if I have medical clearance and the duties offered to me are within my capacity.
• My obligation to provide current medical certificates that specify my capacity to undertake suitable work.  I understand that if I do not supply a medical certificate my income maintenance will cease.
• My obligation to participate and cooperate with my rehabilitation program.  If I refuse or fail to participate in a rehabilitation program under the Safety Rehabilitation and Compensation Act or frustrate the objectives of the program my income maintenance will be suspended in accordance with sub section 37 (7).

• My obligation to inform the Department of Defence, and rehabilitation counsellor if there are any changes in my circumstances (eg a change of address, telephone number, ability to work, change of Doctor, interstate or overseas travel).
• I understand that the rehabilitation program carries similar expectations of me in regards to employment conditions (eg notifying the rehabilitation counsellor if unable to attend appointments of attend work etc).
• I understand that I may be required to attend medical or other examinations and if I refuse to undergo a medical examination or if I obstruct an examination my income maintenance will be suspended.
• If I fail to attend a medical or other appointment arranged by the Department and do not advise the Doctor at a reasonable time prior to the appointment or do not have valid reasons for non attendance, I will be responsible for payment of any account that may be submitted for the appointment not kept.

OTHER INFORMATION

My income maintenance will be at the rate of 100% of my pre injury earnings for the first 45 weeks of incapacity, this includes time off work whilst still a serving member of the Australian Defence Force.  Thereafter my income maintenance will be reduced to 75% of pre injury earnings.

I may choose to withdraw from the rehabilitation process at any time, however, this will result in suspension of my income maintenance.

I understand that the aim of the rehabilitation process is to assist me to return to some form of paid employment, however, the ultimate responsibility for finding employment is my own.

I understand that I may seek further advice from the Department of Defence regarding my claim.

I have read and understood the information above.

CLIENT:  ............................................................................................................................

SIGNATURE:  ....................................................................................................................

DATE:  ................................................................................................................................

REHABILITATION COUNSELLOR/COORDINATOR:  ....................................................

SIGNATURE:  ....................................................................................................................

DATE:  ................................................................................................................................

LETTER TO CLIENT ADVISING OF SUSPENSION OF ENTITLEMENTS DUE TO NON COMPLIANCE.

(Insert Reference)

(Insert Date)

(Title)(First name)(Surname)

(Insert Address)

(Insert Address)

Dear (Title)(Surname),

I refer to the (Insert details of either the Rehabilitation Plan or Rehabilitation Assessment).

In accordance with sub section (insert either 36(4) or 37(7)) of the Safety Rehabilitation and Compensation Act 1988 (SRCA) your compensation benefits have been suspended with effect from (insert date).  The effect of this action is to suspend your entitlement to incapacity benefits and all other entitlements under the SRCA.

(Insert details of non compliance).

The action to suspend your compensation benefits under the SRCA is automatic following your failure to comply with your (Insert either rehabilitation program or rehabilitation assessment).  Accordingly this action does not constitute a reviewable decision under the SRCA.

Notwithstanding the above you may request an internal review of this action by writing to this office.  Your request should outline why you consider that you had 'reasonable excuse' for your non compliance.  Any documentary evidence, such as medical evidence, should accompany your request.

Should you wish to challenge the suspension of your compensation benefits under the SRCA, you will need to seek legal advice concerning your rights pursuant to section 39B of the Judiciary Act 1903.

Please telephone me on (Insert telephone number) should you wish to discuss this matter.

Yours sincerely

(Insert name)

Rehabilitation Coordinator

For Information:  (Insert approved rehabilitation provider details if applicable)