Serving members can access leave without pay (LWOP) for a variety of reasons during ADF service.
In general, accessing LWOP removes the person from their ADF emplyment and at that point NE is NIL, resulting in no compensation payable. However incapacity payments may be considered, depending on the individual circumstances and the reason for LWOP.
If the LWOP is due to a reason unrelated to the service injury such as administrative action/suspension, taking leave to travel, or for carer responsibilities, the loss of pay and/or allowances is not compensable.
Delegates should obtain confirmation of the reason for LWOP. Where entitlement to incapacity payment is unclear, cases should be referred to Incapacity Payments Policy area for advice.
1. Suspended without pay - No entitlement to incapacity payments
A serving member has their pay suspended due to administrative action. They then claim incapacity payments and submit medical evidence that indicates they are unfit for ADF duties due to accepted conditions.
Answer: The member is not entitled to incapacity payments, as the reason for not being able to serve is the administrative decision, not the accepted condition.
2. Lost Allowances
A Serving member is in receipt of Maritime Disability Allowance (MDA) until October 2018. Defence have advised if not for the accepted condition, the person would have been entitled to MDA until January 2020, however they go on LWOP from May 2019. Is the person entitled to receive incapacity payments for lost MDA from May 2019 until January 2020?
Answer: The outcome depends on the reason for the LWOP – e.g. if they are accessing unpaid leave to be a carer or to travel etc. Accessing LWOP removes the person from their ADF employment and the loss of allowance is not as a result of the injury. However, if the person is incapacitated and is on LWOP prior to medical discharge i.e. to pursue civilian employment, then we could consider the normal and actual earnings to be equivalent to their ADF earnings and the person can access a ‘top-up’ payment for the lost MDA.
3. LWOP from ADF and after administrative discharge.
Person is under disciplinary action during ADF service and LWOP is approved until administrative discharge. During this period the person is working in civilian employment, and claims incapacity payments for the period of LWOP and from civilian employment post discharge.
Answer: The loss of ADF pay is not as a result of the injury once the person goes on LWOP. If it is established that the person is incapacitated after discharge as a result of their accepted injury, NE would be based on their full ADF pay for the week i.e. what they would have earned if they were still a PF member (without consideration of whether they were on LWOP or suspended etc prior to last ceasing to be a member). ADF pay for the week for a PF member is not restricted to an example period prior to the incapacity, or discharge, to establish NE.