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Safety, Rehabilitation and Compensation Act 1988 – Guide for Arranging Rehabilitation Assessments and Requiring Examinations 2024
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This instrument is the Safety, Rehabilitation and Compensation Act 1988 – Guide for Arranging Rehabilitation Assessments and Requiring Examinations 2024.
This instrument commences on the day after the instrument is registered on the Federal Register of Legislation.
This instrument is made under section 57A of the Safety, Rehabilitation and Compensation Act 1988.
Note: A number of expressions used in this instrument are defined in the SRC Act, including the following:
(a) attendant care services (subsection 4(1));
(b) claim (subsection 4(1));
(c) Comcare (subsection 4(1));
(d) determination (subsections 38(1), 60(1));
(e) employee (section 5);
(f) household services (subsection 4(1));
(g) impairment (subsection 4(1));
(h) incapacity for work (subsection 4(9));
(i) medical treatment (subsection 4(1));
(j) non-economic loss (subsection 4(1));
(k) rehabilitation authority (subsection 4(1));
(l) rehabilitation program (subsection 4(1));
(m) relevant authority (subsection 4(1));
(n) reviewable decision (subsection 60(1));
(o) suitable employment (subsection 4(1)).
In this instrument:
application date means the date that is 6 weeks after the date on which this instrument commenced in accordance with section 2.
approved Rehabilitation Assessments and Examinations Guide and this Guide mean the Guide for Arranging Rehabilitation Assessments and Requiring Examinations set out in Schedule 1 to this instrument.
assessor means a medical practitioner or other qualified person.
day, unless otherwise specified, means calendar day.
employee’s circumstances, in relation to an employee who suffers an injury, includes:
(a) the injury;
(b) any other medical condition, however described, suffered by the employee before, during or after the injury;
(c) the employee’s need or claimed need for medical treatment;
(d) the employee’s capacity for work or claimed incapacity for work;
(e) the employee’s impairment or claimed impairment;
(f) the employee’s non-economic loss or claimed non-economic loss;
(g) the employee’s need or claimed need for any alterations, modifications or aids or appliances;
(h) the employee’s need or claimed need for household services or attendant care services;
(i) any suitable employment for the employee including the availability of such employment;
(j) the employee’s personal circumstances; and
(k) any other relevant matter.
Guidelines for Rehabilitation Authorities means the guidelines, if any, issued by Comcare in accordance with section 41 of the SRC Act to rehabilitation authorities in relation to the performance or exercise by those authorities of their functions or powers under Part III of the SRC Act, and as in force from time to time.
independent medical practitioner, in relation to an employee, means a medical practitioner other than a treating practitioner.
injury, in relation to an employee, means:
(a) an ‘injury’ (within the meaning of the SRC Act) suffered by the employee in respect of which compensation is payable under the SRC Act; or
(b) a medical condition, however described, that is the subject of a claim made by or on behalf of the employee; or
(c) a medical condition, however described, that is the subject of a notice under section 53 of the SRC Act but is not yet the subject of a claim;
as the case requires.
Note: For the term ‘injury’ (within the meaning of the SRC Act), see subsection 4(3), and sections 5A and 123A, of the SRC Act.
medical examination means an examination arranged by a relevant authority that an employee is required to undergo in accordance with subsection 57(1) of the SRC Act.
medical practitioner means a person who is registered with the Australian Health Practitioner Regulation Agency as a medical practitioner and is to be interpreted consistently with the term ‘legally qualified medical practitioner’ in the SRC Act.
Note: The term ‘legally qualified medical practitioner’, which is not defined in the SRC Act, appears in subsection 4(1) in the definition of ‘medical treatment’, subsection 4(13) and sections 7, 15, 16, 36, 54, 57 and 126 of that Act. The term ‘legally qualified medical practitioner’ does not include a psychologist, which is covered by the term other health professional.
month has the meaning given in section 2G of the Acts Interpretation Act 1901.
other health professional means a person, other than a medical practitioner, who is:
(a) qualified by their training or registration under the law of a State or Territory providing for the registration for a specific profession; and
(b) registered with the Australian Health Practitioner Regulation Agency or a member of the relevant professional association.
other qualified person means a person, other than a medical practitioner, and otherwise has the same meaning as ‘suitably qualified person’ in the SRC Act.
Note: The term ‘suitably qualified person’, which is not defined in the SRC Act, appears in section 36 of that Act.
panel means a panel comprising two or more assessors.
rehabilitation assessment means an assessment of an employee’s capability of undertaking a rehabilitation program arranged by a rehabilitation authority in accordance with subsection 36(1) of the SRC Act.
rehabilitation examination means a rehabilitation assessment and examination arranged by a rehabilitation authority that an employee is required to undergo in accordance with subsection 36(3) of the SRC Act.
SRC Act means the Safety, Rehabilitation and Compensation Act 1988.
SRC Regulations means the Safety, Rehabilitation and Compensation Regulations 2019.
support person means, in relation to a rehabilitation examination or medical examination, any person who accompanies the employee during part or all of the examination for the sole purpose of providing emotional support to the employee during the examination.
treating practitioner, in relation to an employee, means a medical practitioner or other health professional who is primarily responsible for the clinical management of the employee’s injury.
workplace rehabilitation provider has the same meaning as ‘approved program provider’ in the SRC Act.
The Guide prepared by Comcare in accordance with section 57A of the SRC Act, which is set out in Schedule 1 to this instrument, is approved for the purposes of the SRC Act.
Note 1: In deciding whether to arrange for an assessment under subsection 36(1) or to require an examination under subsection 36(3) of the SRC Act, the rehabilitation authority must comply with this Guide (SRC Act, subsection 36(3A)).
Note 2: In deciding whether to require an examination under subsection 57(1) of the SRC Act, the relevant authority must comply with this Guide (SRC Act, subsection 57(1A)).
(1) This Guide applies in relation to: (a) a rehabilitation assessment if the assessment is the subject of a determination made under subsection 36(1) on or after the application date; and (b) a rehabilitation examination if the examination is the subject of a determination made under subsection 36(3) on or after the application date; and (c) a medical examination if the examination is the subject of a determination made under subsection 57(1) on or after the application date; regardless of when the employee sustained the injury. (2) Subject to subsection (3), both this Guide and the Guidelines for Rehabilitation Authorities apply in relation to rehabilitation assessments and rehabilitation examinations.
Note: A rehabilitation authority shall comply with the Guidelines for Rehabilitation Authorities (SRC Act, subsection 41(2)).
(3) However, if there is an inconsistency between this Guide and the Guidelines for Rehabilitation Authorities, and the inconsistency is such that this Guide and the Guidelines for Rehabilitation Authorities cannot be applied at the same time, this Guide takes precedence over the Guidelines for Rehabilitation Authorities to the extent of the inconsistency.
Schedule 1—Guide for Arranging Rehabilitation Assessments and Requiring Examinations
This Part is made for the purposes of section 57A of the SRC Act and applies in relation to rehabilitation assessments and rehabilitation examinations of an employee who suffers an injury resulting in an incapacity for work or an impairment.
(1) Before the rehabilitation authority arranges a rehabilitation assessment, the rehabilitation authority must consider whether it has sufficient information regarding the following matters to the extent the matters may be relevant to the employee’s rehabilitation: (a) the employee’s circumstances; or (b) any change in the employee’s circumstances; or (c) any relevant matter specified in the Guidelines for Rehabilitation Authorities. Information to be sought from employee’s treating practitioner (2) If, in the opinion of the rehabilitation authority, there is insufficient or inconsistent information regarding a matter specified in subsection (1), to the extent the matter is relevant to the employee’s rehabilitation, the rehabilitation authority should: (a) request, verbally or in writing, the employee’s treating practitioner to provide information regarding that matter; and (b) specify that the information must be provided to the rehabilitation authority in writing; and (c) specify a date being not less than 14 days after the date of the request for the information to be provided by the employee’s treating practitioner. Rehabilitation assessments without examination (3) The rehabilitation authority should rely on the employee’s treating practitioner and the information (if any) provided by the treating practitioner in accordance with subsection (2) as much as possible before arranging a rehabilitation assessment by an independent medical practitioner, other qualified person or panel. (4) The circumstances in which it is appropriate for the rehabilitation authority to arrange for a rehabilitation assessment, without requiring the employee to undergo an examination, are where: (a) in the opinion of the rehabilitation authority, there is sufficient information regarding the matters specified in subsection (1), to the extent the matters are relevant to the employee’s rehabilitation, such that an examination of the employee is not required; and (b) it is consistent with any obligation or function of the rehabilitation authority to arrange for the assessment, re-assessment or periodic monitoring of the employee’s capability of undertaking a rehabilitation program.
Note: Where an employee suffers an ‘injury’ (within the meaning of the SRC Act) resulting in an incapacity for work or an impairment, the rehabilitation authority shall, on the written request of the employee, arrange for the assessment of the employee’s capability of undertaking a rehabilitation program (SRC Act, subsection 36(1)).
(1) The circumstances in which it is appropriate for the rehabilitation authority to require the employee to undergo a rehabilitation examination are where: (a) the rehabilitation authority has complied with subsections 2(1) and 2(2); and (b) in the opinion of the rehabilitation authority, there is still insufficient or inconsistent information regarding the matters specified in subsection 2(1), to the extent the matters are relevant to the employee’s rehabilitation, such that an examination of the employee is required; and (c) it is consistent with any obligation or function of the rehabilitation authority to require the employee to undergo an examination, re-examination or periodic monitoring of the employee’s capability of undertaking a rehabilitation program. Views to be sought from employee (2) Before the rehabilitation authority requires the employee to undergo a rehabilitation examination, the rehabilitation authority must: (a) request, verbally or in writing, the views of the employee, including the reasons for those views, about the matters specified in subsection (3); and (b) specify that the employee’s views must be provided to the rehabilitation authority by a date being not less than 3 business days after the date of the request. (3) The following matters are specified for the purposes of subsection (2): (a) the selection of the assessor or panel who is to conduct the rehabilitation examination; and (b) whether the employee requires a support person; and (c) any other relevant matter that should be considered by the rehabilitation authority before it requires the employee to undergo the rehabilitation examination.
Note: Example: For the purposes of paragraph (3)(c), any other matter might include the employee’s medical restrictions, geographical location and gender, and any language or communication barriers.
(4) The rehabilitation authority: (a) must take into account the views of the employee (if any) provided by the employee in accordance with subsection (2); and (b) should rely on the employee’s treating practitioner and the information (if any) provided by the treating practitioner in accordance with subsection 2(2) as much as possible before requiring the employee to undergo a rehabilitation examination by an independent medical practitioner, other qualified person or panel. Support person (5) Before the rehabilitation authority requires the employee to undergo a rehabilitation examination, the rehabilitation authority must advise the employee that they may have a support person accompany the employee during part or all of the examination.
Before the rehabilitation authority arranges a rehabilitation assessment or requires the employee to undergo a rehabilitation examination by an assessor, whether separately or as a member of a panel, the rehabilitation authority must be reasonably satisfied that the assessor: (a) in the case of an other qualified person: (i) is a workplace rehabilitation provider; or (ii) has the equivalent qualifications of a workplace rehabilitation provider; or (b) in any other case—is a medical practitioner who is qualified, by their training or registration, to assess the employee’s injury.
(1) As soon as practicable after a rehabilitation authority makes a determination requiring the employee to undergo a rehabilitation examination by an assessor or panel, the rehabilitation authority must give the employee a notice of the employee’s rights and obligations relating to the examination.
Note 1: The requirements for notifying determinations under section 36 are contained in section 38 (for a rehabilitation authority other than a relevant authority) or section 61 (for a rehabilitation authority that is a relevant authority) of the SRC Act.
Section 38 relevantly provides that the notice shall be in writing and set out: the terms of the determination; the reasons for the determination; and a statement to the effect that the employee may, if dissatisfied with the determination, request Comcare for a review of the determination under section 38.
Section 61 relevantly provides that the notice shall be in writing and set out: the terms of the determination; the reasons for the determination; and a statement to the effect that the employee may, if dissatisfied with the determination, request a reconsideration of the determination under subsection 62(2).
Note 2: The employee has rights and obligations under section 36 and either section 38 or 62 of the SRC Act.
(2) The notice required by subsection (1) must also include the rehabilitation authority’s reasons for: (a) accepting or not accepting, whether in whole or part, the views of the employee (if any) provided by the employee in accordance with subsection 3(2); and (b) relying on or not relying on, whether in whole or part, the employee’s treating practitioner and the information (if any) provided by the treating practitioner in accordance with subsection 2(2). (3) If the rehabilitation authority makes a determination requiring the employee to undergo a rehabilitation examination by a medical practitioner, or a panel comprising one or more medical practitioners, the notice required by subsection (1) must be given to the employee: (a) at least 14 days before the date of the rehabilitation examination; or (b) if the employee has agreed to a notice period of less than 14 days—a period before the date of the rehabilitation examination being not less than the notice period agreed to by the employee.
(1) The employee shall not be required to undergo more than one rehabilitation examination in respect of the injury more frequently than at 6-month intervals, where each interval commences the day after the last day on which the last examination took place. (2) The minimum interval specified in subsection (1) only applies in relation to a rehabilitation examination if: (a) the employee undergoes the examination; and (b) the employee does not in any way obstruct the examination; and (c) the support person (if any) does not in any way obstruct the examination. (3) The minimum interval specified in subsection (1) does not apply in relation to a rehabilitation examination if: (a) where the employee has made a written request for a rehabilitation assessment in accordance with subsection 36(1) of the SRC Act—the request is made during the minimum interval specified in subsection (1); or (b) where the employee’s treating practitioner has recommended a rehabilitation assessment—the recommendation is made during the minimum interval specified in subsection (1); or (c) where an earlier rehabilitation assessment recommended a further examination or re-examination by a specific date or after a specific period—the date is, or the period ends, during the minimum interval specified in subsection (1); or (d) there has been a change in the employee’s circumstances; or (e) where the injury requires multidisciplinary medical treatment: (i) it is not reasonably practicable for a single assessor or panel to address all the matters that are the subject of paragraph 3(1)(b); and (ii) it is appropriate for the rehabilitation authority to require the employee to undergo more than one rehabilitation examination, with a different assessor or panel, during the minimum interval specified in subsection (1); or (f) the assessor or panel nominated by the rehabilitation authority to conduct the rehabilitation examination fails, for any reason, to provide a written assessment of the employee’s capability of undertaking a rehabilitation program within: (i) the timeframe specified by the rehabilitation authority as part of the arrangement; or (ii) such additional timeframe allowed by the rehabilitation authority; or (g) a request for reconsideration of any determination is made in accordance with section 38 or 62 of the SRC Act and: (i) in the opinion of Comcare or the relevant authority, as the case may be, there is insufficient or inconsistent information regarding any matter relevant to the reasons for the request; and (ii) a reviewable decision has not yet been made in relation to the request; or (h) an application for review of any reviewable decision is made in accordance with section 64 of the SRC Act and: (i) in the opinion of the person or body who made the reviewable decision, there is insufficient or inconsistent information regarding any matter relevant to the review; and (ii) a final decision has not yet been made in relation to the review.
(1) Nothing in this Part is to be construed so as to require a rehabilitation authority to comply with this Part separately or sequentially. That is, the rehabilitation authority may comply with the requirements of this Part at the same time or by the same conduct.
Note: Example: The rehabilitation authority may seek information from the employee’s treating practitioner at the same time as, or before or after, seeking views from the employee.
(2) For the avoidance of doubt, this Part does not require the rehabilitation authority to require the employee to undergo a rehabilitation examination. (3) For the avoidance of doubt, this Part does not prevent the rehabilitation authority from arranging a rehabilitation assessment, or requiring the employee to undergo a rehabilitation examination, by: (a) the employee’s treating practitioner; or (b) a panel comprising the treating practitioner and one or more independent medical practitioners or other qualified persons as are nominated by the rehabilitation authority. Record keeping (4) The rehabilitation authority must keep a record of the views of the employee (if any) provided by the employee in accordance with subsection 3(2) for the period required by any law that applies to the record or records of that kind. Provision of report (5) If the rehabilitation authority makes a determination requiring the employee to undergo a rehabilitation examination, the rehabilitation authority must provide the assessor’s or panel’s report of the examination to certain persons in accordance with the Guidelines for Rehabilitation Authorities.
(1) This Part is made for the purposes of section 57A of the SRC Act and applies in relation to medical examinations of an employee who suffers an injury, or claims to suffer an injury, and where the relevant authority considers that it is reasonable and necessary to obtain further medical evidence. (2) In this Part, a reference to an injury includes a reference to the effects of the injury.
(1) Before the relevant authority requires the employee to undergo a medical examination, the relevant authority must consider whether it has sufficient information regarding the following matters: (a) the employee’s circumstances; or (b) any change in the employee’s circumstances; or (c) the employee’s capability of undertaking a rehabilitation program.
Note: Paragraph (1)(c) may be relevant where, for example, a relevant authority has an obligation or function in relation to a matter concerning a claim for compensation under Division 3 of Part II (concerning injuries resulting in incapacity for work) or section 39 (concerning alterations, modifications or aids or appliances) of the SRC Act.
Information to be sought from employee’s treating practitioner (2) If, in the opinion of the relevant authority, there is insufficient or inconsistent information regarding a matter specified in subsection (1), the relevant authority should: (a) request in writing the employee’s treating practitioner provide information regarding that matter; and (b) specify that the information must be provided to the relevant authority in writing; and (c) specify a date being not less than 14 days after the date of the request for the information to be provided by the employee’s treating practitioner.
Note: The effect of a request made in accordance with subsection (2) is that subsection 11A(3) of the SRC Regulations will apply and the period in which days are not counted for determining a claim will start on the day the relevant authority requests the further evidence and end on the day the relevant authority receives the report, if:
(a) the employee’s treating practitioner is a medical practitioner; and
(b) the claim is a claim for compensation under section 14 of the SRC Act.
See item 5 of the table in section 11A of the SRC Regulations.
(3) The relevant authority should rely on the employee’s treating practitioner and the information (if any) provided by the treating practitioner in accordance with subsection (2) as much as possible before requiring the employee to undergo a medical examination by an independent medical practitioner. (4) The circumstances in which it is appropriate for the relevant authority to require the employee to undergo a medical examination are where: (a) the relevant authority has complied with subsections 9(1) and (2); and (b) in the opinion of the relevant authority, there is still insufficient or inconsistent information regarding the matters specified in subsection 9(1) such that an examination is required; and (c) it is consistent with any obligation or function of the relevant authority to require the employee to undergo an examination, re-examination or periodic monitoring of the injury. Views to be sought from employee (5) Before the relevant authority requires the employee to undergo a medical examination, the relevant authority must: (a) request, verbally or in writing, the views of the employee, including the reasons for those views, about the matters specified in subsection (6); and (b) specify that the employee’s views must be provided to the relevant authority by a date being not less than 3 business days after the date of the request. (6) The following matters are specified for the purposes of subsection (5): (a) the selection of the medical practitioner who is to conduct the medical examination; and (b) whether the employee requires a support person; and (c) any other relevant matter that should be considered by the relevant authority before it requires the employee to undergo the medical examination.
Note: Example: For the purposes of paragraph (6)(c), any other matter might include the employee’s medical restrictions, geographical location and gender, and any language or communication barriers.
(7) The relevant authority must take into account the views of the employee (if any) provided by the employee in accordance with subsection (5). Support person (8) Before the relevant authority requires the employee to undergo a medical examination, the relevant authority must advise the employee that they may have a support person accompany the employee during part or all of the examination.
Before the relevant authority requires the employee to undergo a medical examination by a person, the relevant authority must be reasonably satisfied that the person is: (a) a medical practitioner; and (b) qualified, by their training or registration, to assess the employee’s injury.
(1) As soon as practicable after a relevant authority makes a determination requiring the employee to undergo a medical examination, the relevant authority must give the employee a notice of the employee’s rights and obligations relating to the examination.
Note 1: The requirements for notifying determinations under section 57 are contained in section 61 of the SRC Act. Section 61 relevantly provides that the notice shall be in writing and set out: the terms of the determination; the reasons for the determination; and a statement to the effect that the employee may, if dissatisfied with the determination, request a reconsideration of the determination under subsection 62(2).
Note 2: The employee has rights and obligations under sections 57 and 62 of the SRC Act.
Note 3: The effect of a notice given in accordance with this section is that subsection 11A(3) of the SRC Regulations will apply and the period in which days are not counted for determining a claim will start on the day the relevant authority gives the employee the notice and end on the day the relevant authority receives the results of the medical examination. See item 1 of the table in section 11A of the SRC Regulations.
(2) The notice required by subsection (1) must also include the relevant authority’s reasons for: (a) accepting or not accepting, whether in whole or part, the views of the employee (if any) provided by the employee in accordance with subsection 9(5); and (b) relying on or not relying on, whether in whole or part, the employee’s treating practitioner and the information (if any) provided by the treating practitioner in accordance with subsection 9(2). (3) The notice required by subsection (1) must be given to the employee: (a) at least 14 days before the date of the medical examination; or (b) if the employee has agreed to a notice period of less than 14 days—a period before the date of the medical examination being not less than the notice period agreed to by the employee.
(1) The employee shall not be required to undergo more than one medical examination in respect of the injury more frequently than at 6-month intervals, where each interval commences the day after the last day on which the last examination took place. (2) The minimum interval specified in subsection (1) only applies in relation to a medical examination if: (a) the employee undergoes the examination; and (b) the employee does not in any way obstruct the examination; and (c) the support person (if any) does not in any way obstruct the examination. (3) The minimum interval specified in subsection (1) does not apply in relation to a medical examination if: (a) where the employee has requested a medical examination—the request is made during the minimum interval specified in subsection (1); or (b) where the employee’s treating practitioner has recommended a medical examination—the recommendation is made during the minimum interval specified in subsection (1); or (c) where a medical practitioner, following an earlier medical examination, recommended a further examination or re-examination by a specific date or after a specific period—the date is, or the period ends, during the minimum interval specified in subsection (1); or (d) there has been a change in the employee’s circumstances; or (e) where the injury requires multidisciplinary medical treatment: (i) it is not reasonably practicable for a single medical practitioner to address all the matters that are the subject of paragraph 9(4)(b); and (ii) it is appropriate for the relevant authority to require the employee to undergo more than one medical examination, with a different medical practitioner, during the minimum interval specified in subsection (1); or (f) the medical practitioner nominated by the relevant authority to conduct the medical examination fails, for any reason, to provide a written report of the examination within: (i) the timeframe specified by the relevant authority as part of the arrangement; or (ii) such additional timeframe allowed by the relevant authority; or (g) a request for reconsideration of any determination is made in accordance with section 62 of the SRC Act and: (i) in the opinion of the relevant authority there is insufficient or inconsistent information regarding any matter relevant to the reasons for the request; and (ii) a reviewable decision has not yet been made in relation to the request; or (h) an application for review of any reviewable decision is made in accordance with section 64 of the SRC Act and: (i) in the opinion of the person or body who made the reviewable decision, there is insufficient or inconsistent information regarding any matter relevant to the review; and (ii) a final decision has not yet been made in relation to the review.
(1) Nothing in this Part is to be construed so as to require a relevant authority to comply with this Part separately or sequentially. That is, the relevant authority may comply with the requirements of this Part at the same time or by the same conduct.
Note: Example: The relevant authority may seek information from the employee’s treating practitioner at the same time as, or before or after, seeking views from the employee.
(2) For the avoidance of doubt, this Part does not: (a) require the relevant authority to require the employee to undergo a medical examination; or (b) prevent the relevant authority from requiring the employee to undergo a medical examination by the employee’s treating practitioner if that practitioner is a medical practitioner. Record keeping (3) The relevant authority must keep a record of the views of the employee (if any) provided by the employee in accordance with subsection 9(5) for the period required by any law that applies to the record or records of that kind. Provision of report (4) If the relevant authority makes a determination requiring the employee to undergo a medical examination, the relevant authority must provide the medical practitioner’s report of the examination to the employee, or the employee’s nominated representative or the employee’s treating practitioner.