You are here

20.10.2 Where several conditions combine to jointly produce overall incapacity

Document

In some cases, the first medical examination to certify incapacity for work identifies that there are both accepted compensable causes and non-compensable causes, 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. Few invariable rules apply to these very variable circumstances. Delegates must apply their judgement and discretion to establish whether some entitlement exists.

However, as a general rule, delegates should not, without further investigation, concede an entitlement to make weekly incapacity payments, unless the compensable injury is the principal cause of that incapacity for work.

Note, that this test for whether the Commonwealth is required to make incapacity payments is not the same as the test for general liability for the injury.  Liability requires only a 'significant contribution' from Commonwealth employment.  Nevertheless, as outlined above, incapacity payments should not be made unless the compensable injury is clearly the most significant contributor to the incapacity.

Therefore, delegates investigating incapacity claims should have regard to the following:

  • Whether the incapacity would exist if not for the effect of the compensable contribution.  If the compensable condition, when added to any non-compensable conditions, leads to the person becoming incapacitated then liability to make incapacity payments exists.
  • Where the compensable condition alone causes the incapacity then liability to make incapacity payments exists.
  • Where the client was already incapacitated due to the compensable factors before the introduction of non-compensable factors, then the non-compensable factors are probably not relevant, and liability to make incapacity payments continues.
  • Where the client was already incapacitated due to the non-compensable factors before the introduction of compensable factors, then the compensable factors are probably not relevant, and liability to make incapacity payments does not exist.
  • Whether any non-compensable injury (e.g. mental injury) prevents rehabilitation with respect to the compensable condition.

Example: A client has a pre-existing non-compensable condition but is able to work. This condition is then aggravated by service. The pre-existing condition of itself does not cause the incapacity, neither perhaps does the aggravation. Combine the effects of both and this prevents the client from working whether wholly or partially. We continue to pay compensation as long as the medical evidence is that the compensable aggravation causes incapacity for work.

The scenarios described in the following table are intended to guide delegates in dual eligibility cases, to determine against which claim and which Act incapacity payments should be made.  It also provides guidance in determining liability to make incapacity payments and compensation offsetting.

Injury A is an accepted knee injury under the SRCA and VEA

Injury B is an accepted back injury under the SRCA.

Injury C is a non-compensable shoulder injury.

Injury D is accepted depressive illness under the VEA and an aggravation under the MRCA.

Injury E is accepted PTSD under the VEA only.

Injury F is an accepted ankle injury under the MRCA only.

VEA Clearances

When requesting a VEA clearance delegates should include all the conditions contributing to the incapacity and not just the condition that the incapacity has been paid against.

Scenarios

(combinations of injuries A-F)

Pay incapacity and count

45 Weeks against

Report costs

against

Compensation Offsetting

(staff in DP payment section will make final decision after receiving request for clearance)

3rd Party Recoveries

Comments

1.

The knee injury results in full incapacity i.e. the person is not able to work at all.

Surgery is required for the back and a medical certificate indicates the back as the cause of incapacity.

The status of the knee has not changed.

Knee alone

Knee alone

Request clearance for all conditions contributing to incapacity – knee and back.

DP for knee (but not depression) offset by entire incapacity.

Knee and Back

Knee results in full incapacity and liability is not impacted by the back

2.

The knee injury results in full incapacity ie the person is not able to work at all.

The person requires surgery for the shoulder and medical certificate indicates the shoulder as the cause of incapacity.

The status of the knee has not changed.

Knee alone

Knee alone

Request clearance for all conditions contributing to incapacity – Knee.

As above.

Knee Alone

Knee results in full incapacity and  liability is not impacted by the non-compensable shoulder surgery as long as the knee continues to cause full incapacity.

3.

The knee injury results in partial incapacity ie the person is able to work 10 hours per week.

The person requires surgery for the back and the person is fully incapacitated due to the back and medical certificate indicates the back as the cause of incapacity.

The status of the knee has not changed.

After 1 month the person returned to pre surgery status

Knee, then Back and revert to knee.

If 45 weeks used for knee then may have fresh 45 weeks and paid at 100% NWE*.

Then payments revert to Knee and relevant % of NWE

Knee, then Back and revert to knee.

Request clearance for all conditions contributing to incapacity – knee and back.

Offset DP (up to notional limits) by all the incapacity if the incapacity is paid in respect of at least one VEA AD

Knee, then Knee and Back and revert to knee.

Back is a compensable new event in its own right fully incapacitating, and overtakes the knee injury temporarily.

4.

The knee injury results in partial incapacity i.e. the person is able to work 10 hours per week.

The person requires surgery for the shoulder and is fully incapacitated due to the shoulder and medical certificate indicates the shoulder as the cause of incapacity.

The status of the knee has not changed.

After 1 month the person returns to pre surgery status

Knee alone but at the pre-existing rate of incapacity payments.

The amount of compensation payable is only impacted by any change in the hours actually worked and the % of NWE paid (if post 45 weeks).

Hours used are actual hours worked.

We deem AE as if to ignore the effects of the shoulder

Knee alone

Request clearance for all conditions contributing to incapacity – knee.

DP for knee (but not depression) offset by entire incapacity.

Knee alone

Shoulder, being non compensable is not compensated. Knee effects continue and would have in any event so pre-existing compensation continues.

5.

The knee injury initially incapacitates the person.  The incapacity from the knee injury has resolved and now the back injury incapacitates the person.

Back alone and new 45 weeks

Back alone

Request clearance for all conditions contributing to incapacity – back

DP is for knee and depression, therefore no offsetting.

Back alone

Compensation is paid only for the back

6.

The person is totally incapacitated due to their knee injury.  Later the back also is added to medical certificates as a cause of incapacity for work.

Knee alone

Knee alone

Request clearance for all conditions contributing to incapacity – knee and back.

DP for knee (but not depression) is offset by entire incapacity.

Knee and Back

Knee results in full incapacity and liability is not impacted by the back so long as the knee effects remain

7.

The person is medically discharged with the knee and the back injuries jointly contributing to the person's incapacity.

Knee or Back, whichever is deemed as the principle cause of the incapacity

Knee or Back, whichever it deemed as the principle cause of the incapacity

Request clearance for all conditions contributing to incapacity – knee and back.

Offset DP (up to notional limits) by all the incapacity if the incapacity is paid in respect of at least one VEA AD

Recover all the incapacity if the 3rd party action is in respect of at least one of the contributing conditions.

Delegate must investigate and determine which condition is the principle cause of the incapacity.

8.

The person is medically discharged with the knee and depressive illness jointly contributing to the person's incapacity.

Depression under MRCA because of s15 of the MRC(CTP)Act 2004.

Depression

Request clearance for all conditions contributing to incapacity – knee and depressive illness.

Offset DP (up to notional limits) by all the incapacity if the incapacity is paid in respect of at least one VEA AD

Recover all the incapacity if the 3rd party action is in respect of at least one of the contributing conditions.

Both give rise to incapacity but can only pay under one Act.

9.

The person is partially incapacitated due to the knee. A sequela hip condition increases level of incapacity.

Knee as it gives rise to the full incapacity .

Knee alone

Request clearance for all conditions contributing to incapacity – knee and hip.

DP for knee and not depression offset by entire incapacity payment.

Recover all the incapacity if the 3rd party action is in respect of at least one of the contributing conditions.

The knee is the principle cause of the incapacity as it gives rise to liability for the hip condition.

10.

The shoulder results in full incapacity i.e. the person is not able to work at all.

The person requires surgery for the knee and medical certificate indicates the knee as the cause of incapacity.

The status of the shoulder has not changed.

No compensation

No compensation

No compensation

No compensation

Non compensable shoulder causes the incapacity and remains.

11.

The person is paid incapacity payments under MRCA for the aggravations of Major Depressive Disorder.

Incapacity payments under MRCA for Depression.

Depressive Disorder

Request clearance for all conditions contributing to incapacity – depressive illness.

Is offset against  VEA DP for depression.

Depressive Disorder

12.

The person presents well after discharge with a mix of compensable and non compensable injuries listed as the cause of incapacity.

Pay against the condition that is the principle cause of the incapacity, if that is an AD.

Request clearance for all conditions contributing to incapacity.

DP for knee and depression would be offset by entire incapacity.

Recover all the incapacity if the 3rd party action is in respect of at least one of the contributing conditions.

Investigate chronology of incapacity:

If compensable factors first resulted in incapacity then compensable refer to 4 above.

If non compensable factors first resulted in full incapacity then not compensable refer 10 above

If non compensable factors increase level of pre existing compensable incapacity refer to 4 above

If compensable factors increase level of pre existing non compensable incapacity then delegate must investigate and pay incapacity against the principle cause of the incapacity

13.

The person is partially incapacitated due to their MRCA ankle injury and is able to work 3 days per week.  Subsequently the person's PTSD cause a total incapacity.

Top-up incapacity payments under MRCA for the ankle, then Special Rate under the VEA.

Ankle until Special Rate is awarded, then PTSD thereafter.

Request clearance for all conditions contributing to incapacity.

Incapacity payments are precluded once the person becomes eligible for Special Rate under the VEA

Recover all the incapacity if the 3rd party action is in respect of the ankle condition.

A person can only be incapacitated once over.

The PTSD overtakes the ankle injury and causes 100% incapacity, therefore incapacity payments are no longer payable under MRCA.

Note: Where a condition ceases to be a cause of incapacity, a new VEA clearance should be requested.

When considering whether a return to work may be possible, regard must be given for the combined impact of all the conditions, not just those which are compensable.