Background

1.       One of the intentions of the Act was to establish a “compulsory” rehabilitation obligation on the part of both employees and employers.  Where it was beneficial and appropriate for the individual to be rehabilitated back to work, participation in a rehabilitation program was a requirement for receiving compensation benefits.

2.       There has been discussion between Comcare and employers for some time about who has the power to suspend compensation under subsections 36(4) and 37(7), whether such a decision once made is reviewable, and whether such a suspension encompasses all benefits under the Act.

3.       The relevant sections of the Act are:

Section 36

Section 36 of the Act deals with the assessment of an injured employee's capacity to undertake a rehabilitation program.  Subsection 36(4) states:

"(4) 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."

Section 37

Section 37 of the Act deals with the provision of rehabilitation programs for injured employees.  Subsection 37(7) states:

"(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.”