2.10 Two or more conditions, all potentially totally incapacitating

2.10.1 All totally incapacitating conditions are compensable

If a person is suffering from several incapacitating conditions, all of which are compensable, each capable of causing total incapacity on their own, the person will be entitled to compensation.

2.10.2 Totally incapacitating conditions are both compensable and non-compensable

Compensation is only payable if the condition that first totally incapacitates the person is compensable. If a medical condition has already removed all capacity for employment, it is not possible for a second and equally severe condition to cause any additional loss of capacity. In fact, while the second condition might be even more severe than the first and equally capable of causing impairment or incapacity for work, there is no residual capacity for work for that second condition to remove.

This means that where the person suffers from two or more conditions, each capable of incapacitating him/her for all work:

• Entitlement to incapacity payments applies only where it was a compensable condition which first produced totally incapacitating effects. This entitlement continues while that condition continues to produce incapacitating effects, i.e. regardless of the relative severity of other potentially incapacitating conditions.

• Incapacity payments are not payable where it was a non-compensable condition that first caused total incapacity. This state of affairs continues while that non-compensable condition continues to produce a total incapacity. The relative severity of a subsequent compensable condition during this period, is not relevant.

The High Court case of Dawkins v Metropolitan Coal (1947) affirmed the principle that one cannot be simultaneously incapacitated twice-over and it is the initial removal of capacity for work which is deemed to be the sole cause of incapacity.

The Dawkins case continues to be cited in matters before courts and administrative tribunals, and as a decision of the High Court, Dawkins is binding on decision-makers and should be applied where relevant to the facts of the case.

2.10.3 'Civilian Workers Compensation' and eligibility for incapacity payments

While civilian compensation is paid for incapacity for work, there is no further capacity for employment to remove, and incapacity payments should not be payable for the same period.

The principles of Dawkins applies in cases where a person has been receiving civilian workers compensation payments for a non-compensable condition, and subsequently claims incapacity payments for a compensable (DVA accepted) condition. Eligibility for incapacity payments depends on whether the person remains totally incapacitated for the original non-compensable condtion or not. The important factors to consider are the chronology of the cause, and the degree of incapacity.

If a person was only partially incapacitated for a non-compensable condition while receiving civilian workers compensation and later claims incapacity payments, consideration should be given to whether the compenable condition has increased the persons incapacity to work (i.e. removed any residual capacity). Refer to section 2.11.

Examples:

Jim has been receiving civilian workers compensation (Workcover) payments for total incapacity for work due to a non-compensable back condition. Workcover payments have been ceased, however his level of incapacity for work remains the same. Jim subsequently claim incapacity payments for an inability to work due to a compensable knee condition. In this case, there is no entitlement to incapacity payments because the incapacitating effect of the non-compensable back condition remains (further incapacity is not possible).

Steve has been receiving civilian workers compensation payments for partial incapacity for work due to a non-compensable ankle condition. He requires surgery on a compensable knee condition and his Workcover payments will be ceased for the duration of his surgery and convalescence. As the ankle condition caused only a partial incapacity for work, Steve will be entitled to incapacity payments for the period of total incapacity caused by the compensable knee condition.