36Assessment of capability of undertaking rehabilitation program

#### 36 Assessment of capability of undertaking rehabilitation program (1) Where an employee suffers an injury resulting in an incapacity for work or an impairment, the rehabilitation authority may at any time, and shall on the written request of the employee, arrange for the assessment of the employee’s capability of undertaking a rehabilitation program. (1A) If: (a) an employee has made a claim under Part V in relation to an injury to the employee; and (b) the relevant authority has not determined the claim; and (c) the person is included in a class of persons determined in an instrument under subsection (1B); and (d) the MRCC has determined, in writing, that this section applies to the person; the rehabilitation authority may at any time, and must on the written request of the employee, arrange for the assessment of the employee’s capability of undertaking a rehabilitation program. (1B) The MRCC may, by legislative instrument, determine a class of persons for the purposes of paragraph (1A)(c). (1C) A determination under paragraph (1A)(d) is not a legislative instrument. (2) An assessment mentioned in subsection (1) or (1A) shall be made by: (a) a legally qualified medical practitioner nominated by the rehabilitation authority; (b) a suitably qualified person (other than a medical practitioner) nominated by the rehabilitation authority; or (c) a panel comprising such legally qualified medical practitioners or other suitably qualified persons (or both) as are nominated by the rehabilitation authority. (3) The rehabilitation authority may require the employee to undergo an examination by the person or panel of persons making the assessment. (4) Where an employee refuses or fails, without reasonable excuse, to undergo an examination in accordance with a requirement, or in any way obstructs such an examination, the employee’s rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the examination takes place. > Note: Subsection (9) provides that subsections (4), (4A) and (7) do not apply to an employee if an assessment is arranged under subsection (1A) in relation to the employee. (4A) However, subsection (4) does not operate to suspend the employee’s right to compensation for the cost of medical treatment that is payable under section 16. (5) The relevant authority shall pay the cost of conducting any examination of an employee and is liable to pay to the employee an amount equal to the amount of the expenditure reasonably incurred by the employee in making a necessary journey in connection with the examination or remaining, for the purpose of the examination, at a place to which the employee has made a journey for that purpose. (6) In deciding questions arising under subsection (5), a relevant authority shall have regard to: (a) the means of transport available to the employee for the journey; (b) the route or routes by which the employee could have travelled; and (c) the accommodation available to the employee. (7) Where an employee’s right to compensation is suspended under subsection (4), compensation is not payable in respect of the period of the suspension. (8) Where an examination is carried out, the person or persons who carried out the examination shall give to the rehabilitation authority a written assessment of the employee’s capability of undertaking a rehabilitation program, specifying, where appropriate, the kind of program which he or she is capable of undertaking and containing any other information relating to the provision of a rehabilitation program for the employee that the rehabilitation authority may require. (9) If the rehabilitation authority arranges for an assessment mentioned in subsection (1A) in relation to an employee, subsections (4), (4A) and (7) do not apply to the employee in connection with the assessment.