11.1.3 Meaning of 'incapacity to engage in any work' - Ss4(9)(a)

This type of incapacity is for:

• a period when a client is totally unable to work as a result of a compensable condition, or
• a client is seeking medical treatment during work hours for a compensable condition.

During each of these periods, irrespective of the duration, the client is unable to engage in any work.

Note, that the AAT has rejected the argument that this phrase 'incapacity to engage in any work' at S4(9)(a) should be interpreted to mean that there is incapacity if there is any single form of work that the employee is unable to do. However the proper interpretation is that there is incapacity for 'any' work if there is now no form of work that the employee is able to do.

In Re Sullivan and Comcare (1998), the Tribunal said:

67 Mr Johnson also referred to the definition of 'incapacity for work' in S4(9) of the Act. He submitted that 'incapacity for work' does not mean that an employee is incapacitated for all work: merely that the person has some incapacity which restricts the sort of work the person can undertake. The Tribunal notes there are two parts of the definition in S4(9), although in both cases the reference is to an incapacity suffered by the employee as a result of an injury. Paragraph (a) is 'an incapacity to engage in any work'. The alternative paragraph (b) is 'an incapacity to engage in work at the same level' at which the person was employed immediately before the accident happened.

68 In the Tribunal's view, the paragraph (a) reference to an incapacity to engage in any work, is a reference to being unable to undertake any form of work at all. This is the plain English meaning. By contrast, paragraph (b) is linked to the employee's work for the particular employer before the injury. The Tribunal rejected Mr Johnson's submission that paragraph (a) should be read as meaning a person is incapacitated if there is any form of work which they are unable to do.'

This is an important finding in respect to contentions by some clients who, having been medically discharged from the ADF, continue to define themselves narrowly as infantryman, gunner etc. and assert that their incapacity for employment will not end unless re-enlisted at the same occupation. That assertion is not correct. In fact, they cease to be incapacitated when able to engage in suitable employment 'at the same level' i.e. the same rate of pay in any suitable civilian job.

• See 11.1.4 for a discussion of 'work at the same level'.
• Some members are medically discharged due to injuries which prevent only operational deployment or satisfaction of the ADF's rigorous physical fitness standards and they are thus able to work 'at the same level' in suitable civilian employment, i.e. virtually from the date of discharge. Nevertheless, it is DVA policy that such members are deemed to be 'incapacitated for all work' for the first four weeks after the date of medical discharge.