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6.5.14 Incapacity Overtaken/Removed by a Later Injury
In some cases the incapacitating effects of a compensable condition may be actually overtaken by a later non-compensable injury or disease.
Entitlements in respect of a wholly incapacitating medical condition do not cease merely because the person subsequently develops an additional non-compensable condition of greater severity. An entitlement to weekly payments continues while the incapacitating effects of that original condition also continue. Several scenarios are given in the matrix at 220.127.116.11
In some circumstances, an incapacitating condition can be overtaken and the entitlement to incapacity payments terminated by the effects of a new event. That 'new event' may of course include a new injury. This concept is referred to in the relevant case law as 'novus actus interveniens'. It applies where the nature of (or the effects of) that new injury or disease actually removes incapacity for work imposed by the first condition. In the case Re Sadek and Commonwealth (1988) the Tribunal said:
'Before the novus actus will be regarded as the only cause of the incapacity, it must be shown that the incapacity which would have resulted from the injury has ceased to exist and that the incapacity which does exist has resulted from the new cause as the sole cause'
For instance, if the Commonwealth was paying weekly compensation for partial incapacity in respect of a knee injury and subsequently a non-compensable MVA resulted in the quadriplegia which causes total incapacity, the requirement to pay incapacity payments in respect to the knee cease.