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Recover at Work Assist for Small Business guidance material

Introduction

Research shows that work promotes recovery and reduces the risk of long-term disability and work loss. The NSW workers compensation system is focussed on supporting workers to recover at or return to work after work-related injury.

Section 53 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) allows the State Insurance Regulatory Authority (SIRA) to develop, administer and coordinate vocational rehabilitation schemes for workers.

The Recover at Work Assist for Small Business program (the program) aims to help small employers to provide workers with suitable work and assist workers to recover at work after work-related injury or illness. It will be run and evaluated as a pilot program for a period of 12 months.

If a worker and employer meet SIRA’s eligibility criteria and program requirements, the worker and employer’s use of the program will be accepted and the insurer will administer the program costs.

Return to work obligations

The 1998 Act outlines employers’ return to work obligations to support workers to recover at work in a timely way if they have capacity to work.

The worker may ask their employer to provide them with suitable employment, and the employer must comply with this request if it is reasonably practicable. A worker with work capacity must cooperate with their employer and insurer and make reasonable efforts to return to suitable employment.

SIRA has delegated authority to SafeWork NSW inspectors to issue employer improvement notices (EIN) to employers who fail to meet their obligations under the Act.

It is an offence if an employer, having received an EIN, still fails to meet their obligations. The penalty can be up to $11,000.

Program summary

This program is designed for small employers who face financial hardship when trying to support their worker to recover at work.

An assistance payment of up to $400 per week is available to offset the costs of making alternative arrangements to cover the usual duties of the worker, while the worker recovers at work.

This program is available in the first 26 weeks from the date the claim was entered into the insurer’s system for a combined total of up to 6 weeks.

Program benefits

The program enables an employer to:

  • receive assistance payments to help offset the costs of covering the usual duties of the worker
  • provide suitable work for their worker
  • help the worker to stay active and return to usual activities at work and home sooner
  • demonstrate a recovery at work culture and maintain good employer-employee relationships
  • retain the skills and knowledge of the worker.

Eligibility

A worker is eligible for the program if they:

  • have current work capacity
  • are receiving weekly payments under the Workers Compensation Act 1987 (1987 Act)
  • have not exceeded 26 weeks from the date the claim was entered into the insurers system

An employer is eligible for the program if they:

  • employ up to 19 full-time (or equivalent) workers, and
  • pay a basic premium tariff of $30,000 or less, and
  • hold a current workers compensation policy with an insurer in NSW, and
  • can demonstrate that alternative arrangements have been made to carry out the worker’s pre-injury duties, and
  • can demonstrate it is not reasonably practicable to offer suitable employment under section 49 of the Workplace Injury Management and Workers Compensation Act 1998 (refer to When a worker is injured: A workers compensation guide for employers, page 12 ‘Demonstrating a lack of available duties’), and
  • can demonstrate that engaging additional assistance to enable the worker to recover at work will cause financial hardship to the business.

Note: The insurer is to determine whether the employer meets the eligibility criteria on a case-by-case basis.

Principles

An application for program assistance can be made if the:

  • program is likely to assist the worker to achieve their recover at work goal(s), and
  • program will help an employer provide suitable work in situations where without the assistance payment it is not reasonably practicable to offer employment, and
  • work offered is safe and suitable for the worker.

Preparing for the program

During planning discussions with the worker and employer, the insurer may identify if the program is a suitable strategy to help a worker recover at work.

If an employer or workplace rehabilitation provider believes the program will assist a worker to recover at work, they should discuss eligibility with the insurer as soon as possible.

Program development and implementation is managed by the provider, but the insurer must ensure the following activities are completed prior to program commencement.

1. Workplace assessment

A workplace assessment must be conducted to identify if suitable work is available, to match the capacity of the worker to the essential requirements of the proposed suitable work and assess the worker’s ability to perform the tasks safely.

The person conducting the assessment must meet the minimum qualifications for workplace assessment.

The worker and employer must be present and involved in the workplace assessment. Any issues identified during or after the workplace assessment should be discussed with the worker and the employer, and a satisfactory solution developed.

Where specific equipment or workplace modifications are required, refer to the SIRA equipment and workplace modifications guidance material. The provider must ensure that any equipment or changes to the work environment are implemented before the program begins.

2. Recover at work plan

Using information from the workplace assessment, the provider develops a recover at work plan in consultation with the worker and employer.

The recover at work plan must clearly outline opportunities for the worker to upgrade capacity. It should outline the duties to be performed and detail all parties’ roles and responsibilities, including how the program will be monitored and reviewed.

Both the employer and worker must agree to the recover at work plan. The plan must be described in writing and copies given to both the worker and employer.

3. Insurer endorsement

The insurer must:

  • confirm both the worker and employer meet the respective eligibility criteria
  • endorse the use of the program by signing a completed vocational program – details form before starting the program
  • give a copy of the signed form to the worker and employer
  • update the worker’s injury management plan.

Equipment requests must be made with reference to the principles and requirements outlined in the SIRA equipment and workplace modifications guidance material.

If the program is not approved, the insurer must advise the worker and employer of the SIRA review process

Equipment requests must be made with reference to the principles and requirements outlined in the SIRA equipment and workplace modifications guidance material.

If the program is not approved, the insurer must advise the worker and employer of the SIRA review process.

Accessing the assistance payment

The assistance payment is claimed by (and paid directly to) the employer by the insurer using the Vocational program - claim for payment form.

Up to $400 is payable per week. The amount paid will be either $400 or the worker’s pre-injury average weekly wage earnings (PIAWE) if the PIAWE amount is less than $400.

Example 1: If the worker’s PIAWE is $750, the employer assistance payment will be $400.

Example 2: If the worker’s PIAWE is $300, the employer assistance payment will be $300.

The employer and insurer should negotiate a payment schedule which is easy to administer and will maximise the worker’s recover at work outcome. For example, as per the employer’s usual pay cycle or as agreed between both parties on a case-by-case basis.

If employment arrangements change or the worker returns to their pre-injury duties, the employer assistance payment will be calculated on the number of weeks that the employer needed assistance up until the date the worker was certified fit for their pre-injury duties or the employment arrangement changed.

If the worker commences the program and requires time off work (for example, for surgery or annual leave), assistance payments are not payable during the employee’s absence.

Assistance payments can be recommenced at any time provided the worker and employer remain eligible for the program (i.e. it has been less than 26 weeks since the claim was entered into the insurers system, and the 6-week program participation period has not been exceeded).

Employers should consult their accountant or the Australian Taxation Office about how the assistance payment should be treated for taxation purposes.

Insurers must have controls in place to prevent duplicate payments being made and claimed.

Insurer/agent reimbursement

Insurers can request reimbursement from SIRA for the program costs. Insurers and agents are to ensure that all claims for reimbursement can be substantiated. Substantiated means programs are approved and supported by appropriate evidence of the expenses.

Specialised insurers

Reimbursements from SIRA can be claimed within six months of the costs being incurred by submitting a claim for payment, evidence of payment and relevant receipts.

Nominal Insurer

Reimbursements from SIRA can be claimed by a tax invoice. The invoice should be accompanied by an itemised breakdown of the costs by claim and program type.

For more information about making a claim for reimbursement contact vocprograms@sira.nsw.gov.au.

Program changes and monitoring

Eligibility should be assessed throughout the program. The insurer must be notified if circumstances change and affect the eligibility of the worker and/or the employer.

Reviews should be undertaken in accordance with the recover at work plan to ensure tasks are performed safely and the worker is progressing as expected towards the recover at work goal.

The program may be discontinued if the worker is not progressing as expected and the program or recover at work plan is no longer suitable.

Note: It is recommended that insurers do not make a work capacity decision that would adversely affect the worker’s entitlement to weekly payments while the worker is undertaking the program.

Completion of the program

If the worker continues to have partial capacity for work at the end of the program, further assistance can be provided through an ongoing recover at work plan or an alternative recover at work strategy to return the worker to their pre-injury work status.

No further payments are available under the program once the maximum amount of payments (6 weeks) have been made.

The provider must evaluate the success of the return to work plan against the goals of the program. The closure report will also help the insurer, employer and worker determine what, if any further return to work assistance is required. The provider should submit a vocational program: closure report to the insurer and SIRA by email to vocprograms@sira.nsw.gov.au within five working days of completion of the program. An analysis of the closure reports enables us to evaluate the benefits of the program and identify program improvements.

Review process

If there is a disagreement about eligibility or use of the program, the worker and/or employer should try to resolve the matter with the insurer in the first instance. The worker can also ask WIRO to help make contact with the insurer.

If the insurer decides an application does not meet eligibility criteria and program requirements, a worker and/or employer can request a review from SIRA. Refer to our factsheet on how to request a review of a program decision.

Further information

SIRA has a range of programs to support recovery work. If an employer or worker does not meet the criteria for this program, the worker may be eligible for another program such as a work trial to support their recovery at work.

If you are a worker with an enquiry, or a complaint about the insurer which you have been unable to resolve with them in the first instance, please contact the Workers Compensation Independent Review Office (WIRO) on 13 94 76 or via email at complaints@wiro.nsw.gov.au. For all other complaints please contact SIRA on 13 10 50.

If you are an employer or other stakeholder with an enquiry or a complaint related to workers compensation, please contact SIRA on 13 10 50 or via email at contact@sira.nsw.gov.au.

Resources

The following resources for other SIRA funded programs to support recovery at work

are available at www.sira.nsw.gov.au:

*        Vocational program – details form

*        Vocational program – claim for payment form

*        Vocational program – closure report

*        Equipment and workplace modification program guidance material.

Related legislation

Refer to the Workplace Injury Management and Workers Compensation Act 1998, section 53 (vocational rehabilitation programs).