2.15 Voluntary discharge/Retirements to prevent further injuries

Not all ADF members who suffer an impairment from a service-related injury are medically discharged. The majority continue to serve, regardless of the residual effects of their injury. Injured employees that in the normal course continue to serve and eventually leave the ADF through voluntary or administrative discharge are not considered incapacitated for work at the date of discharge. Only those medically discharged from the ADF are actually incapacitated at the date of discharge.

The medical conditions and residual impairments documented at the final ADF medical examination (i.e. the Separation Health Examination/Discharge Medical) of voluntary discharges is not sufficient to demonstrate a post-discharge incapacity for work. The Discharge Medical report may help to demonstrate liability though.

For weekly incapacity payments to be made to a member who voluntarily discharged (or was discharged for administrative reasons) the person must have adequate medical certification of incapacity and the delegate must be satisfied that:

• incapacity originates with compensable condition, not another cause, and

• is either due to a natural deterioration of the condition since discharge, or

• an aggravation from activities within his/her medical restrictions, and

• is not due to 're-injury' i.e. a further unrelated accident/incident since discharge.

Voluntary discharge should not be cited as a reason to deny incapacity benefit for clients with medical certification of incapacity for work due to an accepted condition.

2.15.1 Retirements to prevent further injury

A person may contend that a decision to retire was taken on medical advice i.e. to pre-empt a future development of an incapacity for work, had he/she remained in the same work environment.  A voluntary retirement however reasonable in terms of halting the progress of a medical condition, nevertheless does not constitute incapacity for work.

Whilst an AAT decision is not binding on other decisions, delegates can be guided by their deliberations and in Re Cobern and Comcare 1998  the Tribunal said:

 “In my view the evidence that I have referred to clearly establishes that, at the time of his retirement, the applicant was neither incapacitated from engaging in any work at all, nor incapacitated from engaging at work at ASO5 level.  He was approaching the point where he would become so incapacitated.  It was reasonable, even wise, for him to retire early before his psychiatric condition deteriorated to such an extent that he reached that point.  But he was still fit for work at ASO5 level when he retired and therefore was not then incapacitated for the purposes of the Act.  It may be that the Act has operated unfairly in this case, given the prudence of the applicant’s decision to retire before irretrievable psychiatric damage occurred, but I have no discretion in this matter.”

This decision does not affect cases where an actual compensable injury spontaneously deteriorates or is aggravated after retirement, thus causing incapacity.  The Cobern case establishes only, that incapacity must be directly caused by an actual injury and a voluntary cessation of work, taken with a view to preventing or limiting future injury, does not of itself constitute incapacity for work. Delegates should focus on the medical evidence of each case. The primary consideration should be whether the client is medically certified as incapacitated for employment due to a compensable condition, rather than the terms of their discharge from the ADF.