The MRCC [2]'s policy on the application of the deeming provisions contained in subsection 19(4) of the DRCA [3] and subsection 181(5) of the MRCA [4] is outlined in the Protocols of Rehabilitation under the MRCA available in section 1.4.2 [5] of the Rehabilitation Policy Library. They are equally applicable to our administration of the DRCA rehabilitation provisions.
In particular, Principle 28 states: "If the person can show genuine yet unsuccessful attempts to obtain employment they will not be “deemed” when suitable employment is not possible."
Accordingly, DVA should continue to assist a person to find suitable work, through an active rehabilitation program, for as long as a person continues to demonstrate a commitment to the job seeking phase of their rehabilitation program.
According to section 363 of the MRCA, the Commission is a body corporate under the name of the Military Rehabilitation and Compensation Commission.
There has always been a strong return to work focus in DVA’s administration of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (DRCA), which stems from Comcare's rehabilitation and return to work model. However, DVA’s rehabilitation approach is a whole-of-person approach, which emphasises that the person’s needs and circumstances beyond that only related to return to work must always be considered when making decisions.
DVA’s rehabilitation process has traditionally presupposed that a client would be considered or deemed able to earn (AE) once they have successfully achieved the vocational goals of a rehabilitation program, irrespective of whether or not the person is actually in paid employment. Once a person is deemed AE, their incapacity payments would cease (or be adjusted) in line with their newly demonstrated earning/work capacity.
However, it is important that deeming is not applied too early, and that the principles outlined in principle 28 of section 1.4.2 [5] of the Rehabilitation Policy Library underpin decision making. This principle states that: "If the person can show genuine yet unsuccessful attempts to obtain employment they will not be “deemed” when suitable employment is not possible." This is particularly important where a person has episodic mental health conditions that may mean that they need to access treatment and stop job seeking when their symptoms flare.
Section 146 of DRCA [3] provides that the Chief of the Defence Force or the Military Rehabilitation and Compensation Commission (MRCC) is the rehabilitation authority (rather than the Commonwealth) for defence-related claims, as per the provisions of section 39 of the MRCA [4].
Subsection 146(3) of the DRCA [3] directs the rehabilitation authority to: "take all reasonable steps to provide the employee with suitable employment or to assist the employee to find such employment" in accordance with section 40 of DRCA. [3]
Section 62 of the MRCA [4] is identical in intent to section 40 of the DRCA [3] and defines that at the end phase of the vocational rehabilitation process: "The person's rehabilitation authority must take all reasonable steps to assist the person to find suitable civilian work."
Subsections 181(3) - (5) of the MRCA [4] are almost identical to subsection 19(4) of the DRCA [3].
These provisions state that:
then the delegate must have regard to:
in determining actual earnings.
It is important to note that one of the considerations in determining what work is suitable, is the availability of that work in the labour market. Delegates should not presuppose that one or more of the conditions outlined in subsections 181(3)-(5) of MRCA [4] or 19(4) of DRCA [3] exist merely because a person has completed a vocational rehabilitation program.
Successful completion of a vocational rehabilitation program is defined by the person actually obtaining suitable work.
The definitions in section 5 of MRCA [4] make a clear distinction between an incapacity for service and an incapacity for work. An incapacity for service refers to a person's inability to undertake their military duties, whereas an incapacity for work refers to a person's inability to undertake civilian work.
The deeming provisions contained in section 181 of the MRCA [4] only make reference to work. Accordingly there is no power to deem ADF earnings.
The DRCA [3] contains no distinction between civilian work and military service, so it is possible that a person could be deemed AE in ADF employment. For example, where a person refuses a corps transfer and elects to be medically discharged the delegate may consider the former member has an ability to earn in the ADF employment to which a corps transfer was offered. Similarly a member may choose to pursue reserve employment, post discharge from the Permanent Forces, in preference to pursuing civilian employment. In this scenario, under DRCA, it is possible to deem the person AE in reserve employment.
In addition under MRCA, a reservist may be deemed AE in their civilian employment (work) while they have an incapacity for service (unable to undertake their military duties). The distinction between the two types of work needs to be brought to the attention of the reservist's treating practitioner. The doctor must provide guidance in respect of each type of employment the client is unable to perform, and identify the restrictions that must be applied to the employment the client can perform.
Some of the typical circumstances where a person may be deemed with an ability to earn can include:
1. Where a person is in the job seeking phase of their rehabilitation program and not genuinely seeking employment.
2. Where a person is medically cleared to work a certain number of hours per week but chooses to work a lesser amount of hours.
3. Where a person is self-employed, they may be deemed with an ability to earn based on what it would cost to employ a person to undertake similar work. This ensures that the amount is a reasonable reflection of what a person could earn as an employee. It is important that the person is given the chance to establish a sustainable level of income from their business before deeming is applied. A period of six to twelve months may be regarded as a reasonable time period for this to occur. A decision about when to deem an ability to earn must be based on evidence received from the person about the level of income being earned from their business.
4. At the end of a rehabilitation program, a person may be deemed with an ability to earn based on their actual earnings from work, to safeguard the Commonwealth in circumstances where the person subsequently leaves that work for reasons other than their DVA accepted conditions. Care must be taken in this circumstance to ensure that indexation of the deemed amount does not exceed actual pay increases the person receives in that work. This can be achieved by the delegate making a new deeming decision where application of the wage price index to a notional deemed amount, means that the notional deemed amount exceeds a person’s actual earnings from employment.
When determining the amount a person is able to earn in suitable work, the delegate must consider:
The actual dollar amount should be determined by researching the labour market for actual rates of pay available in certain occupations, or award rates of pay in the relevant state or territory. Each case is considered on its individual circumstances. Labour market research will generally be carried out by a person’s rehabilitation service provider.
The Department should continue to assist a person to find suitable work through an active rehabilitation program, for as long as a person continues to demonstrate a commitment to the job seeking phase of their rehabilitation program. Successful completion of a vocational rehabilitation program is defined by the person actually obtaining and retaining suitable work.
Those clients who have obtained employment, but have been approved for Streamlined Access to Incapacity Payments, should not have a deeming amount applied in relation to this employment. The intent of this initiative is to provide those with a mental health condition the flexibility to attempt a return to work. Should this employment not be able to be sustained, then they will be able to easily have their incapacity payments reinstated. Section 9.13 [9] contains detailed information about this initiative and its intent and impacts.
From the outset, the rehabilitation process should be a managed closely, with the client. A clear understanding of entitlements, processes, rights and obligations must be communicated to the client. Before initiating any rehabilitation plan activities, the client must acknowledge their understanding of their rights and obligations by signing the relevant rights and obligations document provided by their rehabilitation provider. A signed copy of this document must be uploaded as an attachment to R&C ISH.
Any rehabilitation support that is provided must consider the whole-of-person, addressing medical management and psychosocial needs the client may have which could impact on recovery and return to work activities.
A return to work or job in jeopardy component of a rehabilitation program may include the following:
Throughout the rehabilitation program the client must be reminded that at the end of the program they will be expected to find suitable employment or resume work, with assistance provided by service providers.
Prior to commencing the job seeking/placement/re-entry phase of the program, all parties involved in case management including the client must undertake a case review or case conference where it is stressed that:
A further review of the rehabilitation program should be undertaken where a client is:
The review will provide an opportunity to identify issues identified by the rehabilitation provider, Rehabilitation Coordinator, or others involved in the rehabilitation process (e.g. feedback from job placement agencies), clarify the client rights and responsibilities and agree that a more intensive period of activities be undertaken for an agreed period of time.
During this agreed period, progress reports must be provided by the Rehabilitation Provider on a very regular basis (for example, weekly, or more frequently, if required) and case reviews involving all key stakeholders, undertaken monthly. Clients are expected to maintain and submit accurate records of their job seeking activities to their Rehabilitation Provider. All relevant documentation must be uploaded as an attachment to R&C ISH and case notes should be used which adequately reflect activities/discussions and events which occurred throughout the entire process.
As a last resort, only after all of the above steps have been undertaken, should the Rehabilitation Coordinator consider deeming a person with an ability to earn. Detailed instructions for the deeming process in R&C ISH can be found in the Rehabilitation Delegates Step by Step Guide to using the deeming function.
Links
[1] https://clik.dva.gov.au/user/login?destination=comment/reply/21116%23comment-form
[2] https://clik.dva.gov.au/%23
[3] https://www.legislation.gov.au/Series/C1988A00156
[4] https://www.comlaw.gov.au/Series/C2004A01285
[5] https://clik.dva.gov.au/rehabilitation-policy-library/1-introduction-rehabilitation/14-mrca-rehabilitation-principles-protocols/142-protocols-rehabilitation-under-mrca
[6] https://clik.dva.gov.au/user/login?destination=comment/reply/21135%23comment-form
[7] https://clik.dva.gov.au/user/login?destination=comment/reply/21140%23comment-form
[8] https://clik.dva.gov.au/user/login?destination=comment/reply/21131%23comment-form
[9] https://clik.dva.gov.au/rehabilitation-policy-library/9-vocational-rehabilitation/913-streamlined-access-incapacity-payments
[10] https://clik.dva.gov.au/user/login?destination=comment/reply/21130%23comment-form