Under section 36(1) of the SRCA and section 44 of the MRCA a person who is incapacitated for service or work as a result of their service injury or disease can be referred for a rehabilitation assessment and following that assessment a rehabilitation program (via section 37 of the SRCA and
The SRCA and MRCA places no specific restrictions on weekly incapacity payments to a person living overseas.
The term ‘top-up payment’ does not feature in the SRCA or MRCA, instead it is an informal term used to describe incapacity payments to people who have earnings. When a person has earnings from employment (actual or deemed) and is paid incapacity payments on top of this amount so that their total earnings (their actual earnings plus incapacity payments) is equal to a percentage of their NE this is often referred to as top-up payments.
There is no time limit on the submission of a claim and a person may submit a claim for a retrospective period of incapacity i.e. a claim for arrears of payments. Each claim must be investigated and assessed on its own merits.
When considering a person’s entitlement to arrears payments the delegate should consider whether the person would have been incapacitated for work but for the effect of the accepted injury. Some other issues to consider are:
when exactly did the person leave the workforce and for what reasons;
Delegates need to be satisfied that the person is suffering from an incapacity resulting from the accepted condition/s. It is in important to recognise that restrictions due to an injury do not necessarily result in an incapacity for work. A person may continue in employment or be fit for employment even if they do have restrictions as a result of an injury.
A common scenario that occurs is where an alleged incapacity occurs soon after discharge from the ADF and the person has not been in employment since that time.
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.
Section 88 (for serving members) and Section 119 (for former members) of the MRCA provide that liability to pay incapacity payments in respect of an aggravated injury or disease only exists for as long as the effects of the aggravation exists.
A person entitled to incapacity payments under the DRCA or MRCA may also be receiving a Disability Compensation Payment (DCP) under the VEA.
In some circumstances, the effects of a compensable condition can be overtaken and the entitlement to incapacity payments terminated by the effects of a new event. That 'new event' may include a new injury. This concept is referred to in the relevant case law as 'novus actus interveniens'. It applies where the nature of (or the effects of) that new injury or disease actually removes incapacity for work imposed by the first condition.
Where there are both accepted compensable conditions and non-compensable conditions contributing to a person’s incapacity, i.e. the incapacity is a result of a combination of causes, delegates should consider whether:
the compensable component of the whole suite of incapacitating factors would give rise to an incapacity regardless of other factors.
the compensable condition, when added to any non-compensable conditions, leads to the person becoming incapacitated, or more incapacitated, then liability to make incapacity payments exists.
