11.2 Suspension of benefits

11.2.1 Legislation

11.2.1.1 DRCA

A person’s right to compensation can be suspended under sections 57(2) if the person refuses or fails to undergo an examination without reasonable excuse. Under Section 37(7) of DRCA, a person's right to compensation may also be suspended where they fail or refuse to undertake a rehabilitation program, without reasonable excuse. Medical treatment is excepted from the suspension.

Chapter 12 of the Liability handbook discusses S57(2) suspensions primarily in relation to liability issues although the medical examination could be for any purpose i.e. incapacity payments. Refusal or failure to attend an examination results in suspension of all compensation under that claim which was to be tested by the medical exam. The suspension is not appealable and is only lifted once the person complies with direction and attends an appointment.

Note however, that a S57(2) suspension (unlike S37(7) which relates to non-compliance with a rehabilitation plan) relates only to compensation specific to the condition which was the subject of the medical examination. If a client suspended under S57(2) for one injury subsequently becomes incapacitated by a separate injury (that wasn’t going to be investigated by the original medical examination) weekly payments may still be made (i.e. on the basis of that second injury).

Section 37(7) relates to a failure to undergo rehabilitation, which seeks to ameliorate the effects of any and all injuries. 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 injury, 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.

Any decisions to suspend under both Ss36(4) and 37 are determinations under the Act thus allowing the client to seek a reconsideration of the delegate's decision. A decision to suspend based on non-compliance with a rehabilitation assessment or program should be made by a rehabilitation delegate.  

Section 58 has a slightly different provision that enables the delegate to refuse to deal with a claim for liability or compensation, where the person fails to comply with a written request for specified information or documents.  This may include medical certificates, medical records held by Centrelink, taxation returns and pay slips.  To apply subsection 58(3) we must first issue a notice requesting provision of the information within 28 days as per subsection 58(1).

11.2.1.2 MRCA

A person's right to compensation can be suspended under section 50 and 329 of MRCA if they fail or refuse, without reasonable excuse, to undergo an examination or assessment.  Under Section 52 of MRCA, a person's right to compensation may also be suspended where they fail or refuse to undertake a rehabilitation program, without reasonable excuse.

Non-compliance under MRCA can lead to suspension of compensation entitlements (with the exception of compensation for medical treatment).  In such cases it will be necessary to cease incapacity benefits for the duration of the suspension.

Any decisions to suspend under Section 50 or 52 are determinations under the Rehabilitation provisions and will be determined by a Rehabilitation delegate.

It is important to note, MRCA Section 345 states a determination under Section 50 or 52 is not an 'original determination' and therefore does not provide appeal rights.

Subsection 330(3) has a slightly different provision that enables the delegate to refuse to deal with a claim for liability or compensation, where the person fails to comply with a written request for specified information or documents.  This may include medical certificates, medical records held by Centrelink, taxation returns and pay slips.  To apply subsection 330(3) we must first issue a notice requesting provision of the information within 28 days as per subsection 330(2).

11.2.2 Reinstating benefits after a suspension

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.

If a person's benefits have been suspended because they failed to attend a rehabilitation assessment or other appointments, then they must attend that appointment before benefits can be reinstated.  On the day the person attends the appointment, benefits should be reinstated.  If the person and or the rehabilitation provider are unable to reschedule the appointment for several days, then the suspension remains in place until the appointment takes place.