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20.20.5 Examples

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1.A RAAF pilot suffers an eye injury in a compensable MVA and is permanently unfit for flying duties. This member refuses a transfer to an administrative position at the same rank and with duties within his capacity and a MECRB therefore recommends medical discharge. In this case, the member has 'failed to.... continue to engage' in the suitable employment offered him, and S19(4)(c) applies. At discharge, this client should be deemed to be capable of earning an income at the rate of the position offered to him with the result that there is no loss, and no weekly benefit payable.

2.A private soldier suffers a compensable back injury after which he is assessed by a MECRB which places him on Category 3 and schedules him for review in 6 months. In that interim period, the soldier perceives himself to be struggling even with light duties and one of his Army doctors also expresses the opinion that the future MECRB review is likely to find that he has made insufficient recovery, i.e. suspects the MECRB will recommend his medical discharge. The soldier therefore decides to 'cut his losses' and resigns to return to his home State, i.e. before the reviewing MECRB reconvenes. In this case, S19(4)(c) applies. The opinion expressed by the treating doctor is not the same as the opinion of a MECRB, which alone has the power to review fitness for employment. However the MECRB had made no final determination on his employability. At the time the soldier took voluntary discharge, he was still being offered employment by the ADF but 'failed to ...continue to engage' in that employment. Weekly compensation is not payable.

3.A private soldier suffers a compensable back injury after which he is assessed by a MECRB which finds that he is Category 4, i.e. Medically Unfit for Further Service. The soldier receives the preliminary letter that advises him of this finding and invites him to make a submission to the MECRB before it makes its final decision. The soldier elects not to enter into the lengthy discharge process but simply resigns. In this case S19(4)(c) should not be applied. As the ADF has made a preliminary decision to withdraw employment it would be unreasonable to assert that the soldier 'failed to...continue to engage' in that employment. This soldier's 'voluntary' resignation should instead be treated as if it was the involuntary medical discharge which would (almost) inevitably follow.