Are retraining programs provided as part of a workers' compensation claim?
It is possible for injured workers to access specialised retraining programs during their workers’ compensation claim. In these case the insurer must have admitted liability in the worker’s compensation claim. The injured worker must meet specific eligibility criteria in order to be considered for a retraining program. These programs allow workers who are unable to return to their pre-injury employment to complete particular vocational training or tertiary studies. Retraining programs are accessible only while the workers' compensation claim is live and before it has been settled. Access to specialised retraining programs cannot not be built into any settlement agreement so if the workers' compensation claim is settled the retraining program will cease.
The eligibility criteria is strict and the application process is relatively complex. To ensure that you have the best chance of accessing a retraining program during your workers’ compensation claim, we suggest that you obtain legal advice from a specialist personal injury lawyer.
What requirements must be satisfied before you can access a retraining program?
The Workers' Compensation and Injury Management Act 1981 ("the Act") provides specific guidance in regards to what criteria must be met in order to be eligible to apply for a retraining program. Section 158(1) of the Act stipulates the following eligibility criteria:
- the worker has participated in a return to work program established under section 155C(1) but has not been able to return to work;
- the worker has a capacity for retraining and is a person for whom a specialised retraining program is a viable option;
- formal vocational training or study through a technical or tertiary training course appears to be the only course of action that will enable the worker to return to work;
- it is reasonable to expect that a specialised retraining program will provide the worker with the qualification or skills necessary to return to work, having regard to the labour market, the worker’s existing qualifications and work experience; and
- such other criteria as may be prescribed in the regulations for the purposes of this definition.
Eligibility for retraining programs also relies upon the injured worker meeting very specific whole person impairment assessment. Section 158(A)(1) of the Act focuses on the whole person impairment assessment required for eligibility and stipulates that:
- a worker may participate in a specialised retraining program if —
the worker has suffered an injury that is compensable under this Act; and
- the injury occurred on or after the day on which section 119 of the Workers’ Compensation Reform Act 2004 comes into operation; and
- either the worker and the worker’s employer agree that the worker’s degree of permanent whole of person impairment is at least 10% but less than 15%; or
- an arbitrator has determined that the worker’s degree of permanent whole of person impairment is at least 10% but less than 15%; and
- either the worker and the worker’s employer agree that the worker satisfies all of the retraining criteria; or
- an arbitrator has determined that the worker satisfies all of the retraining criteria.
How is a request for a retraining program assessed and what is WorkCover's involvement?
WorkCover's Specialised Retraining Assessment Panel determines whether an injured worker is eligible for specialised retraining. Once the eligibility criteria has been met and approval provided by WorkCover the injured worker must then gain entry into the retraining program and enter into an agreement with WorkCover. This agreement details how the worker is to participate in the program and what expectations will be placed on the injured worker.
More specifically it will detail the attendance requirements, how the worker is to communicate progress to WorkCover, how and when WorkCover will review the worker's performance and how possible conflict or disagreement regarding the retraining program will be managed. Subject to the requirements the Act, WorkCover can at any time give a written order to the worker’s employer or the employer’s insurer to modify, suspend or cease the amounts payable in respect of the worker’s participation in the specialised retraining program.
What costs will be covered if an injured worker participates in a retraining program?
Section 158F(5) explains what costs may be covered under an approved retraining program. Subject to the conditions of the Act, WorkCover can give a written direction to the injured worker’s employer or the employer’s insurer to make a payment in regards to the worker’s participation in a retraining program.
The payments can be requested for:
- reasonable retraining course fees;
- books and relevant research or study materials; and
- subject to a number of conditions, a weekly allowance for living expenses while the injured worker is involved in the retraining program.
Section 158F(2) of the Act notes that the total amount payable in regards to an injured worker’s retraining program expenses is to equal 75% of the prescribed amount. This calculation is completed as at the date on which the injured worker signed their retraining program agreement with WorkCover.
What is expected of the injured worker in regards to the retraining program?
WorkCover is required to conduct reviews of the injured worker’s participation in the retraining program. The first review is conducted 3 months after the worker commences the retraining program. Subsequent reviews are then conducted every 3 months. Section 158H(1) of the Act notes that the reviews are to assess:
- the performance and cooperation of each worker who is participating in a specialised retraining program; and
- the payments directed to be made in a specialised retraining program.
If after a review, WorkCover determines that the injured worker’s participation has been unsatisfactory or not in accordance with the retraining program agreement it can give either the employer or the employer’s insurer a written direction. Section 158I(2) of the Act confirms that WorkCover can:
- suspend any entitlement that a worker has under an agreement under section 158E if WorkCover WA is of the opinion that the worker has not complied, or is not complying, with a provision of the agreement;
- cease the entitlement if the worker does not, within one month of being requested in writing by WorkCover WA to do so, comply with the provision;
- modify, suspend or cease the amounts payable in respect of the worker’s participation in the program if the worker fails a course requirement or does not achieve the results that, in the opinion of WorkCover WA, are required for the course to be successfully completed.
Will participating in a retraining program have an impact on my workers’ compensation claim?
One very specific effect occurs in regards to the assessment and payment of workers’ compensation when a claimant participates in a retraining program.
Here, as prescribed by Section 158L(1) of the Act, the amount that may be paid in regards to the retraining program is be paid in addition and completely separate from any other payments or compensation that an injured work is entitled to under the Act. Further to this, Section 158L(2) of the Act makes it very clear that participation in a retraining program does not constitute grounds for the suspension, discontinuance, reduction or increasing of payments of other compensation that the worker receives in respect of their injury. This position is further reinforced by Section 158L(4) of the Act which stipulates that no part of the retraining program cost or entitlement should be taken into account when any other form of workers’ compensation the worker is entitled is assessed or calculated.
Current academic research in the field of retraining programs and their impact on workers’ compensation claims.
Australian research into retraining programs and the outcomes that they achieve for injured workers has been limited. In 2007, Thornthwaite and Markey’s research into injured workers in New South Wales did, however, find that a number of their research subjects (injured workers) complained that “rather than consulting with them about alternative work prospects, insurers unilaterally decided new career paths for them and then enrolled them in training, often for jobs that were inappropriate and/or demeaning”. The injured workers surveyed as part of this study, described not being involved in the decision making process about what retraining would be provided, as being dis-empowering and distressing.
How can Separovic Injury Lawyers assist you with accessing a retraining program?
Dealing with your employer, insurer or WorkCover in relation to a retraining program can often be time consuming, frustrating and confusing. This is a complicated part of the Act and retraining programs are rarely successfully organised by an injured worker. Please keep in mind that retraining programs can only be utilised while a workers' compensation claim is active. Don't delay and get in contact with us now to obtain free, no obligation advice on how we could assist you secure a retraining program.