Part III of the DRCA [2] provides the legislative authority for the provision of rehabilitation entitlements, by the rehabilitation authority, as defined in section 146.
This Part establishes a number of formal requirements for the proper provision of a rehabilitation program for current and former members of the Australian Defence Force (ADF):
A formal rehabilitation assessment under Section 36 of DRCA [2]is undertaken:
The purpose of a rehabilitation assessment can be to determine the client's needs in relation to vocational rehabilitation, alterations, modifications, aids or appliances, treatment, household and attendant care services, and any other barriers to successful rehabilitation.
Section 36 provides the legislative basis under which a formal determination for the client to undergo an assessment of their capability of undertaking a rehabilitation program. It also provides for the rehabilitation authority to insist that a client undergo an assessment and the right to suspend the client's rights to compensation until the assessment takes place, should the client refuse or fails, without reasonable excuse, to undergo or in anyway obstructs such an assessment.
In accordance with Section 36(8) where an assessment is completed, the assessor is to provide the delegate with a written assessment report, specifying the client's capacity to undertake rehabilitation and the type of rehabilitation program suitable for the client. The report must identify any rehabilitation needs and provide recommendations of services that may assist address the identified needs.
Subsection 37(1) of DRCA [2] provides the legislative authority to determine that a client who has suffered an injury resulting in an incapacity for work, or an impairment, should undertake a rehabilitation program. This includes the authority to amend or close a rehabilitation program. This section also provides the authority to appoint an approved rehabilitation program provider.
Subsection 37(3) describes what factors the delegate must have regard to when determining that a client will undertake a rehabilitation program.
"In making a determination under subsection (1), a rehabilitation authority shall have regard to:
(a) any written assessment given under subsection 36(8);
(b) any reduction in the future liability to pay compensation if the program is undertaken;
(c) the cost of the program;
(d) any improvement in the employee's opportunity to be employed after completing the program;
(e) the likely psychological effect on the employee of not providing the program;
(f) the employee's attitude to the program;
(g) the relative merits of any alternative and appropriate rehabilitation program; and
(h) any other relevant matter."
Subsection 37(7) provides the authority to suspend the client's entitlements to compensation should the client refuse or fail, without reasonable excuse, to undertake a rehabilitation program.
Section 38 of DRCA [2] provides that where a client disagrees with a decision under subsection 36(1) or 37(1) regarding their rehabilitation, they may request, in writing and within 30 days, a reconsideration or review of that decision. Section 62 provides more broadly for the right of review in relation to any determination under sections 34, 36, 37 or 39.
Section 39 of DRCA [2]provides that where a client has suffered an injury or illness resulting in an impairment, and they are undertaking a rehabilitation program or been assessed as not able to undertake a rehabilitation program; the rehabilitation authority may pay compensation for the cost of:
that are reasonably required due to the nature of the client's impairment.
A written assessment by a suitably qualified person, such as an Occupational Therapist or treating medical practitioner, should be obtained prior to a delegate determining that compensation is payable under the provisions of section 39.
Section 40 of DRCA [2], in conjunction with section 146, places an onus on the rehabilitation authority to assist a person who is incapacitated as a result of service injury or disease to find suitable employment.
Suitable employment is defined in section 4 of the DRCA, as outlined in section 2.3.1 [8] of this Library.
Links
[1] https://clik.dva.gov.au/user/login?destination=comment/reply/21129%23comment-form
[2] https://www.legislation.gov.au/Series/C1988A00156
[3] https://clik.dva.gov.au/user/login?destination=comment/reply/21144%23comment-form
[4] https://clik.dva.gov.au/user/login?destination=comment/reply/78495%23comment-form
[5] https://clik.dva.gov.au/user/login?destination=comment/reply/21127%23comment-form
[6] https://clik.dva.gov.au/user/login?destination=comment/reply/78496%23comment-form
[7] https://clik.dva.gov.au/user/login?destination=comment/reply/21138%23comment-form
[8] https://clik.dva.gov.au/rehabilitation-policy-library/2-legislative-provisions/23-safety-rehabilitation-and-compensation-defence-related-claims-act-1988-drca/231-rehabilitation-definitions