Total and Permanent Incapacity for Work

Total and Permanent Incapacity for Work

In deciding whether a client has a “total and permanent incapacity for work” for the purposes of s 12(1) and (1AA), the assessor 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 assessor 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 assessor should also take note of any current incapacity payments being made to the client.  If an “AE” amount is being applied under ss 19, 20, 21 or 21A of the 1988 Act, or if a former employee is being paid under s 132A in Part X rather than s 131 or s 132, the client could not be considered to be totally incapacitated for work.

Note that the total and permanent incapacity must result from the original accepted injury and any accepted sequela, 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.