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2.10 Two or more conditions, all potentially totally incapacitating
2.10.1 All totally incapacitating conditions are compensable
If a person is suffering from several incapacitating conditions, all of which are compensable, each capable of causing total incapacity on their own, the person will be entitled to compensation.
2.10.2 Totally incapacitating conditions are both compensable and non-compensable
Compensation is only payable if the condition that first totally incapacitates the person is compensable. If a medical condition has already removed all capacity for employment, it is not possible for a second and equally severe condition to cause any additional loss of capacity. In fact, while the second condition might be even more severe than the first and equally capable of causing impairment or incapacity for work, there is no residual capacity for work for that second condition to remove.
This means that where the person suffers from two or more conditions, each capable of incapacitating him/her for all work:
Entitlement to incapacity payments applies only where it was a compensable condition which first produced totally incapacitating effects. This entitlement continues while that condition continues to produce incapacitating effects, i.e. regardless of the relative severity of other potentially incapacitating conditions.
Incapacity payments are not payable where it was a non-compensable condition that first caused total incapacity. This state of affairs continues while that non-compensable condition continues to produce a total incapacity. The relative severity of a subsequent compensable condition during this period, is not relevant.
The High Court case of Dawkins v Metropolitan Coal (1947) affirmed the principle that one cannot be simultaneously incapacitated twice-over and it is the initial removal of capacity for work which is deemed to be the sole cause of incapacity.