49Assessment of capability of undertaking rehabilitation program

#### 49 Assessment of capability of undertaking rehabilitation program (1) If an employee suffers an injury that lasts, or is expected to last, 28 days, which results in an impairment or an incapacity for work, the employee’s employer must, within 28 days after receiving notice of the injury, arrange for the assessment of the employee’s capability of undertaking a rehabilitation program. (2) An assessment must be made by: (a) a legally qualified medical practitioner nominated by the employer; or (b) a suitably qualified person (other than a medical practitioner) nominated by the employer; or (c) a panel comprising legally qualified medical practitioners or other suitably qualified persons (or both) nominated by the employer. (3) The employer may require the employee to undergo an examination by the person or panel of persons making the assessment. (4) If an employee, without reasonable excuse, does not 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. (5) If an employee’s right to compensation is suspended under subsection (4), compensation is not payable in respect of the period of the suspension. (6) The employer must pay the cost of conducting any examination of an employee. (6A) Subject to subsection (6D), the employer is liable to pay to the employee an amount of compensation in respect of expenditure reasonably incurred by the employee in doing either or both of the following: (a) making a journey, necessary for the purpose of undergoing the examination, from the place in Australia where the employee is residing to the place where the examination is to be made; (b) remaining, for the purpose of undergoing the examination, at a place to which the employee has made a journey for that purpose. (6B) The amount of compensation that the employer is liable to pay in respect of the journey is: (a) in relation to a journey by means of public transport or ambulance services—an amount equal to the expenditure reasonably incurred in undertaking that journey; or (b) in relation to a journey by means of private motor vehicle—an amount worked out using the formula:  where: > Specified rate per kilometre means such rate per kilometre as the Minister specifies, by legislative instrument, under this paragraph in respect of journeys to which this paragraph applies. > Number of kilometres travelled means the number of whole kilometres that the employer determines to have been the reasonable length of such a journey (including the return part of the journey). (6BA) If the place where the employee is residing is not the place where the employee normally resides, the amount payable in respect of the journey is not to exceed the amount that would be payable if the journey were made from the place where the employee normally resides. (6C) The amount of compensation that the employer is liable to pay in respect of the employee remaining at a place for the purpose of undergoing the examination is an amount equal to the expenditure so reasonably incurred in remaining for that purpose. (6D) Compensation is not payable under subsection (6A) unless: (a) in relation to a journey to which paragraph (6B)(a) applies—the employee’s injury reasonably required the use of public transport or ambulance services (as the case may be) regardless of the distance involved; or (b) in relation to a journey to which paragraph (6B)(b) applies—the reasonable length of such a journey exceeded 50 kilometres. (7) In deciding questions arising under subsections (6A), (6B), (6BA), (6C) and (6D), the employer must have regard to the following matters: (a) the means of transport available to the employee for the journey; (b) the route or routes by which the employee could have travelled; (c) the accommodation available to the employee. (8) If an examination is carried out, the person or persons who carried out the examination must give the employer 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 employer may require.