RETURN TO WORK ACT 2014 - SECT 48

RETURN TO WORK ACT 2014 - SECT 48

48—Reduction or discontinuance of weekly payments

        (1)         Subject to this Act, weekly payments to a worker who has suffered a work injury must not be reduced unless—

            (a)         the worker consents to the reduction of weekly payments; or

            (b)         the Corporation is satisfied, on the basis of a certificate of a recognised health practitioner, that there has been a reduction in the extent the worker is incapacitated for work by the work injury; or

            (c)         the reduction is necessary to correct an arithmetical or clerical error; or

            (d)         if the weekly payments include a component for overtime—the Corporation is satisfied that if the worker had continued in the work in which he or she was last employed before becoming incapacitated, he or she would not have continued to work overtime or the pattern of overtime would have changed so that the amount of overtime would have diminished; or

            (e)         the worker has recommenced work as an employee or as a self-employed contractor, or the worker has had an increase in remuneration as an employee or a self-employed contractor; or

            (f)         the worker's entitlement to weekly payments reduces because of the passage of time; or

            (g)         the worker's entitlement to weekly payments reduces because of the occurrence of some other event or the making of some other decision or determination that, under another provision of this Act, is expressed to result in a reduction to an entitlement to weekly payments or the reduction of weekly payments is otherwise authorised or required under another provision of this Act.

        (2)         Subject to this Act, weekly payments to a worker who has suffered a work injury must not be discontinued unless—

            (a)         the worker consents to the discontinuance of weekly payments; or

            (b)         the Corporation is satisfied, on the basis of a certificate of a recognised health practitioner, that the worker has ceased to be incapacitated for work by the work injury; or

            (c)         the worker has returned to work; or

            (d)         the worker has obtained work as an employee, or as a self-employed contractor, that is providing remuneration equal to or above the worker's notional weekly earnings; or

            (e)         the worker is dismissed from employment for serious and wilful misconduct; or

            (f)         the worker breaches the obligation of mutuality; or

            (g)         the worker is, without the Corporation's consent—

                  (i)         residing outside the State; or

                  (ii)         absent from the State for more than 2 months in any continuous period of 12 months; or

            (h)         the worker's entitlement to weekly payments ceases because of the passage of time; or

            (ha)         the worker—

                  (i)         has been receiving weekly payments on the basis of an interim decision under section 21(3); and

                  (ii)         the interim decision is brought to an end under section 21(4)(b)(ii); or

                  (i)         the worker's entitlement to weekly payments ceases because of the occurrence of some other event or the making of some other decision or determination that, under another provision of this Act, brings the entitlement to weekly payments to an end or the discontinuance of weekly payments is otherwise authorised or required under another provision of this Act.

        (3)         A worker breaches the "obligation of mutuality" if—

            (a)         the Corporation has, by written notice to the worker, required the worker to submit to an examination by a recognised health practitioner nominated by the Corporation and the worker fails to comply with the requirement within the time allowed in the notice or obstructs the examination; or

            (b)         the Corporation has, by written notice to the worker, required the worker to submit to the Corporation a certificate from a recognised health practitioner certifying that the work injury continues, and the worker fails to comply with the requirement within the time allowed in the notice; or

            (c)         the worker refuses or fails to submit to proper medical treatment for the worker's condition; or

            (d)         the worker refuses or fails—

                  (i)         to participate or cooperate in the establishment of a recovery/return to work plan for the worker; or

                  (ii)         to comply with obligations imposed on the worker by or under a recovery/return to work plan for the worker; or

            (e)         the worker refuses or fails—

                  (i)         to undertake work that the worker has been offered and is capable of performing; or

                  (ii)         to take reasonable steps to find or obtain suitable employment or to comply with any other return to work obligation placed on the worker under this Act,

or having obtained suitable employment, unreasonably discontinues the employment; or

            (f)         the worker refuses or fails to participate in assessments of the worker's capacity, return to work progress or future employment prospects (including by failing to attend); or

            (g)         the worker does anything else that is, apart from this subsection, recognised as a breach of the obligation of mutuality.

        (4)         However, a worker does not breach the obligation of mutuality—

            (a)         by reasonably refusing surgery or the administration of a drug; or

            (b)         where there is a difference of medical opinion about the appropriate treatment for the worker's condition, or the possibility of choice between a number of reasonable forms of treatment—by choosing 1 form of treatment in preference to another.

        (5)         Where the Corporation decides to reduce or discontinue weekly payments under this section, the Corporation must give notice in writing to the worker—

            (a)         containing such information as the regulations may require as to the reasons for the Corporation's decision; and

            (b)         informing the worker of the worker's right to have the decision reviewed.

        (6)         The notice must be given at least the prescribed number of days before the decision is to take effect in any of the following cases:

            (a)         where a decision to reduce weekly payments is made, without the consent of the worker, on the ground that—

                  (i)         the Corporation is satisfied that there has been a reduction in the extent the worker is incapacitated for work by the work injury; or

                  (ii)         the Corporation is satisfied, in the case of a worker whose weekly payments include a component for overtime, that the worker would not have continued to work overtime or the pattern of overtime would have changed so that the amount of overtime would have diminished;

            (b)         where a decision to discontinue weekly payments is made, without the consent of the worker, on the ground that—

                  (i)         the Corporation is satisfied that the worker has ceased to be incapacitated for work by the work injury (although the worker has not returned to work); or

                  (ii)         the worker has failed to submit to an examination by a recognised health practitioner or to provide a medical certificate as required by the Corporation; or

                  (iii)         the worker has been dismissed from employment for serious and wilful misconduct; or

                  (iv)         the worker has breached the obligation of mutuality;

            (c)         where a decision to reduce or discontinue weekly payments is made under section 46,

and in any other case the notice must be given as soon as practicable after the decision is made (but not necessarily before it takes effect).

        (7)         For the purposes of subsection (6), the prescribed number of days is—

            (a)         if the worker's entitlement to weekly payments relates to a period that is within 52 weeks from the date on which incapacity for work first occurred—14 days;

            (b)         in any other case—28 days.

        (8)         Subject to complying with subsection (6), a reduction or discontinuance of weekly payments under this section takes effect in accordance with the terms of the Corporation's notice under subsection (5).

        (9)         Subject to subsection (10), if a worker, within 1 month after the worker receives notice of a decision by the Corporation to reduce or discontinue weekly payments under this section, makes application to the Tribunal for a review of the decision and, as part of that application, makes an election under this subsection—

            (a)         the operation of the decision is suspended and—

                  (i)         the weekly payments must continue or, if the decision has already taken effect, the weekly payments must be reinstated (to their previous level), until the matter first comes before a member of the Tribunal; and

                  (ii)         the Corporation must make a payment to the worker for any weekly payments that have not been made between the date that the decision took effect and the date of their reinstatement; and

            (b)         the Tribunal may as it thinks fit and from time to time, and after having regard to the nature and circumstances of the case—

                  (i)         further suspend the operation of the decision (from time to time) to allow a reasonable opportunity for resolution of the dispute by conciliation or determination if such action is reasonably necessary in order to avoid undue financial hardship being suffered by the worker and subject to the principle that the Tribunal should give extra weight to taking action under this subparagraph if it appears to the Tribunal that it is reasonably open to the worker to dispute the relevant decision;

                  (ii)         vary or revoke a decision under subparagraph (i), including so as to provide that weekly payments will only continue, or continue at a reduced rate, if the worker complies with conditions determined by the Tribunal;

                  (iii)         make an order for the payment of an amount to represent some or all of any weekly payments that have not been made to the worker during the period of the dispute.

        (10)         Weekly payments are not payable under subsection (9) after the end of the period of 104 weeks from the date on which the relevant incapacity for work first occurs (other than in the case of a seriously injured worker and not, in any event, so as to go beyond a date where the weekly payments would come to an end in any event under another provision of this Act).

        (10a)         If the Corporation is acting under subsection (2)(ha)—

            (a)         the notice under subsection (6) must be given as soon as practicable after the decision is made (but not necessarily before it takes effect); and

            (b)         subsection (10) does not apply.

        (11)         If a dispute is resolved in favour of the worker, the worker is entitled to be paid the amount that, subject to or according to the resolution of the matter, would have constituted the worker's entitlements under this Act had the weekly payments not been reduced or discontinued (as the case may be), after taking into account any amount paid under subsection (9), or under another provision of this Act.

        (12)         An amount paid under subsection (11) will be increased by interest at the prescribed rate.

        (13)         If a dispute is ultimately resolved in favour of the Corporation and the worker has been paid an amount in excess of the amount of the worker's lawful entitlements to weekly benefits on account of the operation of subsection (9), the Corporation may, at the Corporation's discretion (but subject to the regulations)—

            (a)         recover the amount of the excess (together with any interest on that amount paid by the Corporation) from the worker as a debt; or

            (b)         set off the amount recoverable under paragraph (a) against liabilities of the Corporation to make payments to the worker under this Act.

        (14)         If the Corporation makes a weekly payment to a worker on the assumption that the worker is incapacitated for work but the worker has in fact returned to work, the Corporation may, subject to the regulations, recover the amount of the payment as a debt.

        (15)         If the Corporation overpays a worker by way of weekly payments in consequence of—

            (a)         an arithmetical or clerical error; or

            (b)         an assumption, subsequently found to be incorrect, that a particular pattern of overtime would have continued if the worker had continued in the work in which he or she was last employed before becoming incapacitated,

the Corporation may, subject to and in accordance with the regulations, recover the amount overpaid as a debt.

        (16)         An employer who believes that reasonable grounds exist for the reduction or discontinuance of weekly payments under this section to a worker employed by, or formerly employed by, the employer may, in a manner determined by the Corporation, request the Corporation to review the circumstances of the case and to reduce or discontinue the weekly payments.

        (17)         The Corporation must carry out the review as soon as practicable after receipt of a request under subsection (16) unless the request is, in the Corporation's opinion, unreasonable.

        (18)         If the Corporation declines to carry out a review as requested under subsection (16), or it appears that there has been undue delay in carrying out the review, the Tribunal may, on application by the employer, direct the Corporation to carry out the review, or give such directions as appear reasonable in the circumstances to expedite the review (as the case may require).

        (19)         The Corporation must comply, or take steps to ensure compliance, with such a direction.

        (20)         On completing the review, the Corporation must give the employer notice in writing—

            (a)         of the Corporation's decision on the review, and the reasons for its decision; and

            (b)         of the employer's right to have the Corporation's decision reviewed.

        (21)         This section does not apply in relation to the discontinuance of payments under Division 5 of this Part or Part 5 (and in such a case no notice of discontinuance need be given).

        (22)         In connection with the operation of subsection (2) (and to avoid doubt), a worker is required to take reasonable steps to attend any appointment reasonably required for the purposes of this Division (and a failure to comply with such a requirement constitutes a ground for the discontinuance of payments under this section).