Safety, Rehabilitation and Compensation Act and Comcare Scheme Review

In July 2012, the Australian Government commissioned Dr Allan Hawke AC and Mr Peter Hanks QC to conduct a review of the Safety, Rehabilitation and Compensation Act (SRC Act) and the Comcare Scheme to ensure that injured workers receive the care they need to recover quickly and return to work as soon as possible.

In response to the review, the Minister for Employment and Workplace Relations Bill Shorten announced on 2 May 2013 that the Government will prioritise 21 recommendations.

In addition to recommendations that emphasise early intervention and rehabilitation the Government plan to implement several recommendations that will correct legislative anomalies in the SRC Act.

The Government will require Comcare to be more vigilant with assessing mental injury claims, by specifying that a mental injury, or aggravation of mental injury, is only considered to arise out of employment if any perception on which the injury is claimed has a reasonable basis. This will better protect the Commonwealth, and therefore taxpayers, and make sure mental injury claims are actually linked to employment.

The Government are currently considering the remaining recommendations of the review.

Konekt believe that the recommended changes, particularly in the areas of early intervention and the requirement for employers to take a more active role in returning injured employers to work as soon as possible, will result in a significant improvement in return to work (RTW) outcomes.

Early intervention is the single most critical factor in achieving successful and durable RTW outcomes. Research shows that the probability of returning to work after injury declines over time. At one month there is an 80% likelihood of returning to work, by six months this decreases to 50%, and by two years it is close to zero percent.1  Early intervention benefits both the worker and employer by reducing ill-health and minimising claim and premium spend.

Safety, Rehabilitation and Compensation Act Review Prioritised Recommendations

Dr Hawke’s recommendations

No. Recommendation
15 That the Minister for Employment consult his state and territory counterparts about establishing a National Rehabilitation framework for injured workers aimed at optimising the return to work opportunities of injured workers throughout Australia.
22(b) Comcare should consider implementing a process to auto-generate key reports for selected premium payers and provide these reports to nominated staff in order to ensure senior management awareness of performance trends.
23(b) Comcare implement a follow-up claims management systems audit conducted by an external firm with experience in conducting similar audits with licensees.

Mr Hanks’ recommendations

No. Recommendation
3.2 I recommend that the SRC Act include a statement of the Act’s objects and purpose.
5.2 I recommend that the effect of the Federal Court’s judgement in Wiegand v Comcare should be negated so that an employee’s perception of a state of affairs will only provide a connection with employment where the perception has a reasonable basis.
5.5 I recommend that the SRC Act be amended so that the reasonable administrative action exclusion in s 5A(1) operates only where the reasonable administrative action taken in a reasonable manner in respect of the employee’s employment has contributed, to a significant degree, to the disease, injury or aggravation.
5.6 I recommend that s 5A(2) be amended by removing the words “and without limiting that subsection”, so as to make it clear that the list in s 5A(2) is a complete list of the actions that are taken to be “reasonable administrative action”.
6.1 I recommend that the SRC Act explicitly provide for early intervention as the primary form of rehabilitation, recognised in the rehabilitation code of practice proposed in Recommendation 6.9.
6.3 I recommend that the term “rehabilitation program” in the SRC Act be amended to “workplace rehabilitation plan”, and that the definition of the term should be amended to emphasise the vocational nature of the services and remove reference to other treatment forms.
6.4 I recommend that the language in Part III of the SRC Act should be amended to reflect the focus on occupational or vocational program providers.
6.5 I recommend that the SRC Act be amended to remove the role of the rehabilitation authority, and replace it with the concept of the liable employer, which will always have a right and the responsibility, to arrange rehabilitation.
6.8 I recommend that the SRC Act be amended to provide Comcare with an ultimate power to commence and/or take over rehabilitation when the liable employer fails to meet its obligations, or ceases to exist.
6.9 I recommend that s41 of the SRC Act be amended to provide for Comcare to issue an “injury management and rehabilitation code of practice”, including obligations for employers to ensure that (a) a rehabilitation management system is established for the employer’s workers, and (b) the establishment, content and implementation of the rehabilitation management system is in accordance with the code of practice.
6.14 I recommend that the current s37(3) of the SRC Act be removed or replaced with the core requirement that an employer (a) take all reasonable steps to return an injured employee to work as soon as possible, and (b) consult as far as practicable with the injured employee and nominated treating practitioner about the injured employee’s return to work.
7.10 I recommend that the introduction to s8(10) of the SRC Act be amended by including the words “from time to time”, to confirm its ambulatory operation.
7.11 I recommend that s8(10)(a) of the SRC Act be amended to confirm that an employee who is suspended without pay continues to be employed for the purposes of s8(10).
7.24 I recommend that the definition of “medical treatment” in s4(1) of the SRC Act be amended to include treatment and maintenance as a resident in a nursing home.
9.1 I recommend that the SRC Act be amended to allow for electronic notification of injury and electronic lodgement of claim forms.
9.2 I recommend the SRC Act be amended to require employers to forward claims received to the determining authority within three days.
9.6 I recommend that regulations be made to prescribe the period within which a decision on a request for reconsideration must be made, for the purposes of s62(6) of the SRC Act, as contemplated by the SRCOLA 2011, and that this prescribed period should be 60 days.
9.19 I recommend that the SRC Act be amended to allow Comcare to recover overpayments in respect of compensation that have been made to an employer by Comcare to recompense the employer for payments of salary or wages.

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References Waddell, G 2004, The Back Pain Revolution. 2nd ed. Edinburgh, Churchill Livingston.

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