New South Wales Consolidated Acts

WORKERS COMPENSATION ACT 1987 - SECT 38A

38A Determination of whether worker seeking suitable employment

(1) Application This section provides for the determination of whether a worker is seeking suitable employment for the purposes of section 38 and section 52A (Discontinuation of weekly payments after 2 years).

(2) General requirements The worker is not to be regarded as seeking suitable employment unless:

(a) the worker is ready, willing and able to accept an offer of suitable employment from the employer, and

(b) the worker has supplied the employer (or the insurer who is liable to indemnify the employer) with a medical certificate with respect to the worker’s partial incapacity for work, being a medical certificate that is in or to the effect of a form approved by the Authority, or that is in any other form and contains information that is reasonably sufficient in the circumstances to assist in determining what is suitable employment for the worker, and

(c) the worker has requested the employer (or such an insurer) to provide suitable employment or it is apparent from the circumstances that the worker is ready, willing and able to accept an offer of suitable employment from the employer, and

(d) the worker is taking reasonable steps to obtain suitable employment from some other person.

Taking reasonable steps to obtain suitable employment includes seeking or receiving rehabilitation training that is reasonably necessary to improve the worker’s employment prospects.

(3) Notice of requirement relating to obtaining suitable employment from other person The requirement under subsection (2) (d) does not apply unless the worker has been notified of the requirement in accordance with this subsection.
Such a notice:

(a) must be given in writing by the insurer or self-insurer concerned, and

(b) must state that the worker is required to take reasonable steps to obtain suitable employment from some other person in order to remain entitled to compensation under section 38, and

(c) may set out particular reasonable steps that can be taken by the worker in order to satisfy that general requirement, and

(d) is subject to, and must comply with, any regulations and (subject to the regulations) any claims procedures notified by the Authority to insurers and self-insurers, and

(e) does not constitute an admission of liability by an employer or insurer under this Act or independently of this Act.

The requirement under subsection (2) (d) does not apply, and a notice is not to be given under this subsection, while action is being taken by or on behalf of the employer to arrange or explore the possibility of suitable employment with the employer.

(4) Notice not applicable when proceedings pending etc If proceedings relating to the payment of compensation under section 38 or to the discontinuation of weekly payments under section 52A are before the Commission or the insurer or self-insurer has denied liability to pay any such compensation:

(a) a notice is not to be given under subsection (3), and the requirement under subsection (2) (d) applies without any such notice being given, and

(b) particular steps to satisfy that requirement that are set out in a notice previously given do not restrict the determination of the matter by the Commission.

(5) Workers treated as not seeking suitable employment A worker is not to be regarded as seeking suitable employment if the worker has unreasonably refused an offer from any person of suitable employment or necessary rehabilitation training. A worker is also not to be regarded as seeking suitable employment if the worker:

(a) unreasonably refuses to have an assessment made of the worker’s employment prospects, or

(b) unreasonably refuses to co-operate in procedures connected with the provision or arrangement of suitable employment or rehabilitation training under the employer’s return-to-work program.

(6) Court orders An order of the Commission relating to the weekly payment of compensation:

(a) may be subject to conditions relating to the worker taking reasonable steps to obtain suitable employment during any weekly payments under section 38, and

(b) may include directions relating to the adjustment of the amount of weekly payments under section 38 for any future period of payments under section 40 when the worker obtains employment or when the period for payments under section 38 comes to an end.

(7) Definitions In this section:
"employer" of a worker who is partially incapacitated for work means the employer liable to pay compensation to the worker in respect of the incapacity or, if there are 2 or more such employers, the employer so liable who last employed the worker.
"refusal" of an offer or to do a thing includes a failure to accept the offer or to do the thing.
"rehabilitation training" means training of a vocationally useful kind, and includes vocational re-education, work-trials, occupational rehabilitation services or treatment provided by way of rehabilitation.
"suitable employment" means suitable employment within the meaning of section 43A.