Section 41 Guideline provisions

Additionally, the Section 41 Guidelines state that employees should “wherever possible undertake treatment outside working hours when participating in a graduated return to work program”.

Where an employee has had to take time off work to obtain necessary treatment for the compensable injury, Comcare has for many years adopted the practice of deeming the employee to be incapacitated for work for the period of his or her absence from work.

This matter is not clearly covered in the Act, however 'incapacity' may be broadly interpreted to mean “loss of earnings” as distinct from its more traditional narrow interpretation of “inability to work due to injury”.

Although this concession has been granted on a case by case basis to employees with injuries, the awarding of compensation in any particular case is at the claims manager's discretion.

There is no unconditional entitlement to payment for time off for the purpose of obtaining treatment.  Any assumption the employee might have that there is a “right” to obtain treatment in work time because the injury happened in work time is without foundation.

Comcare must be satisfied not only that the treatment relates to the compensable injury but also that the treatment cannot reasonably be obtained outside work hours.

The test of reasonableness is also applied to the amount of time which the employee wishes to take off for treatment purposes and the frequency.

Usually, unless there are unusual circumstances, compensation for time off work will not be granted unless information is received from the employer, case manager or some other source which falls outside the norm of general policy.

If asked whether there is an entitlement to incapacity payments during this period, the answer should be “no”.