9.3.1 Total and permanent incapacity for work

In deciding whether a client has a 'total and permanent incapacity for work' for the purposes of S12(1) and (1AA), the delegate should seek the opinion of a medical referee on the issue.

However the opinion of the medical referee is not conclusive, the final decision on the issue must be taken by the delegate on the totality of evidence available. Other evidence could include the duration of the incapacity, occupational rehabilitation reports, work possibilities for the client, etc.

The delegate should also take note of any current incapacity payments being made to the client. If an 'AE' (Able-to-Earn) amount is being applied under Ss19, 20, 21 or 21A of the 1988 Act, or if a former employee is being paid under S132A in Part X rather than S131 or S132, the client could not be considered to be totally incapacitated for work.

Note that the total and permanent incapacity must result from the person's accepted injuries, and not from any other alleged or inferred conditions not accepted for compensation.

Note also that the provision requires both 'total' and 'permanent' incapacity for work. The appropriate test for 'permanent' incapacity is whether the evidence shows that the incapacity is likely to continue indefinitely.