5.4.2 Track time elapsed of the employment obligation period

To identify when an estimated 30 weeks of the employment obligation period has elapsed, Agents undertake the following as part of the usual claims management activities.

Certificates of Capacity:

• the Agent should encourage employers to provide Certificates of Capacity that the employer receives from their worker, regardless of whether the worker is receiving weekly payments
• the Agent records Certificates of Capacity provided by the employer.

Full capacity for pre-injury duties and hours (no incapacity for work):

• the Agent encourage employers to advise when a worker has returned to full capacity for pre-injury duties and hours and record this information
• at each case conference, the Agent estimates the period of the obligation that has elapsed and then confirms the estimate taking into account factors for the particular claim.

See: Inform worker when an estimated 30 weeks of the obligation has elapsed

Initial flag that 30 weeks of the obligation may have elapsed

A Novus task will be triggered when a claim has reached 29 weeks of incapacity for work. The process is supported via the RTW Return to Work Worker Update: Obligation to Provide Employment Novus process.

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Exemptions from requirement to inform the worker at 30-36 weeks

The Agent must assess whether the claim is exempt from the requirement to inform the worker at 30 weeks by the Ministerial Direction.

If the claim is exempt, the Agent records the grounds for this exemption, which should be endorsed by a suitably qualified person (technical).

Note: Periods where the worker has returned to work but is not working full pre-injury hours and duties count towards the employment obligation period. These claims are not excluded from the requirement to send the letter. Claims of limited acceptance or where a termination of weekly payments has occurred are also not excluded from the requirement to send the letter.

Exceptions to sending a letter at 30 weeks are set out in the legislation.

There is no requirement to provide a 30 week Employment Obligation Period letter to the worker:

• if the worker is no longer employed by the injury employer
• where the injury employer cannot be identified, cannot be found, is ceased or has been wound up
• where the worker has only received payments of compensation that do not exceed the employer’s excess (10 days of incapacity and $855of reasonable costs as indexed)
• during any period that the provide employment exclusion from the employer obligation period applies.

The provide employment exclusion applies to the following periods:

• any period during which the worker does not have an incapacity for work
• the period commencing on the date the worker's weekly payments claim has been rejected and:
• no direction has yet been made by a Conciliation Officer that weekly payments are to be paid in relation to the claim
• no recommendation has yet been made at Conciliation that weekly payments are to be paid
• no court decision has yet been made to accept the claim
• the period commencing on the date WorkSafe sets aside an Agent's decision to accept the claim against an employer and no direction or recommendation by a Conciliation Officer or court to pay weekly payments or accept the claim has been made
• the period commencing on the date a Conciliation officer has directed that weekly payments be paid but that direction has been revoked and weekly payments have not resumed
• any period during which a return to work improvement notice issued to the employer is stayed by WorkSafe or by VCAT Victorian Civil Administrative Tribunal.

If, at 30 weeks, any of the above circumstances apply, then a 30 week Employment Obligation Period letter is not required. However, should circumstances change and the employment obligation period is re-activated then the decision is to be reviewed.

See: Ministerial Direction - RTW Direction Issue Resolution Process

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Process triggered: has the worker returned to full pre-injury hours and duties

If the worker has returned to full pre-injury hours and duties the RTW Obligation to Provide Employment process triggers, then the 30 week Employment Obligation Period letter to the worker is not required.

However, this decision must be reviewed if a worker’s circumstances change.

Process triggered: worker has not returned to full pre-injury hours and duties - confirm the estimated period elapsed of the employment obligation period

The Agent must confirm the estimated time elapsed in accordance with the factors set out in the legislation.

Note: Agents will only be able to confirm the estimated elapsed time based on information available to the Agent at the time.

The estimate is based on certain key assumptions to ensure that a worker is informed before the obligation ending.

The Novus Process has an eform (RTW Estimate: Employer Obligation to Provide Employment) to support the confirmation.

Key elements that the Agent needs to take into consideration when confirming the estimate include:

• the worker’s capacity for work. Where there are missing certificates, the same capacity for work as the most recent certificate is assumed (unless the Agent has other acceptable evidence about the worker’s capacity for work)
• if relevant, the date the employer’s obligation recommenced after the claim was initially rejected or set aside after an Agent senior review
• if relevant, the date when a Conciliation Officer’s direction for weekly payments was revoked.
• if known, whether the employer provided suitable employment in periods that they were not technically required (eg when the claim was rejected).
• any period during which a return to work improvement notice issued to the employer is stayed by WorkSafe or by VCAT.

The RTW obligation period checklist sets out the elements that need to be considered when confirming the estimate.

Process triggered: claim has not reached an estimated 30 weeks of the employment obligation period

Where the Agent estimates the claim has not yet reached an estimated 30 weeks, the Agent must set another date to re-estimate the period lapsed.

Process triggered: claim has already exceeded 36 weeks of the employment obligation period

There may be uncommon instances that after estimating the period of the obligation that has elapsed, the period estimated to have elapsed exceeds 36 weeks. In these circumstances, the Agent must refer the matter to a suitably qualified person (technical) for review.

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