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6.5.13 Where Two or More Conditions Combine to Jointly Produce Overall Incapacity
In some cases, the first medical examination to certify incapacity for work identifies both accepted compensable causes and non-compensable causes together as joint contributors to the incapacitated state, i.e. the incapacity is a result of a combination of causes. Because no single ailment is of itself a cause of incapacity, priority of occurrence is not an issue. It is difficult to prescribe rules to these very variable circumstances. Delegates must apply their judgement and discretion to establish whether entitlement exists.
Delegates investigating these claims for incapacity payments should consider:
- Whether the aggregate of all the non-compensable conditions would give rise to incapacity i.e. without the contribution of the compensable injury; or
- Whether the compensable component of the whole suite of incapacitating factors would give rise to incapacity regardless of other factors.
In the Dawkins case, the Court quoted, with approval from another case with a similar outcome, Evans v Oakdale Navigation Collieries (1940):
'Of course, if, as the result of the first accident, the workman suffers total disability, it matters not whether he is certified to be suffering from an industrial disease which also has rendered him totally incapacitated, for in such a case there is no capacity for work on which the notional accident can operate;...'
Also, in deciding Dawkins, the Court expressed its own view that:
'In the present case the total incapacity of the worker which existed in 1945 had existed for some years prior to that date as a result of tuberculosis. It could not therefore be said to be the result of fibrosis because one hundred percent incapacity cannot be increased beyond one hundred percent by any supervening cause.'
Dawkins establishes or at least illustrates the principle that an employee may not be totally incapacitated twice-over i.e. simultaneously. One hundred percent incapacity for work can not be advanced above one hundred per cent. Thus, in cases where a person suffers from two or more conditions each separately capable of totally incapacitating him/her, it is only the first of these conditions which is significant for the purposes of compensation.
Delegates should refer to the table of scenarios contained in 22.214.171.124 of this chapter to assist in determining which condition is the cause of the incapacity.