Policy

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.

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.

Where a person takes time off work to attend an appointment in accordance with Section 57 of the SRCA and Section 328 of the MRCA, that is, an appointment arranged by the MRCC (specialist medical review), there is no entitlement to incapacity payments.   However payment of compensation for costs reasonably incurred by the person.

Time off work or loss of wages to attend medical treatment can be considered to be a period of incapacity and can be compensated under the incapacity provisions. In this case 'incapacity' may be interpreted as an inability to engage in work due to an absence from work to obtain treatment. In such cases evidence of attending the appointment and also for loss of wages is required before payment can be made.  No medical certificate is required.

A medical discharge is an involuntary termination of the person's employment by the ADF on the grounds of permanent or at least long-term unfitness to serve, or unfitness for operational deployment.

Part of investigating a person’s eligibility for payment will involve seeking medical evidence to support the contention that the person is incapacitated due to their accepted condition/s.

2.5.1 Power to obtain information from Defence

The various incapacity provisions in Chapter 4 of the MRCA provide the legislative authority to obtain information from Defence in relation to:

• rank and pay level;

• pay-related allowances;

• medical documents; and

• career progression.

Section 61 of the SRCA and Section 333 of the MRCA requires the delegate to determine a claim for incapacity payments in writing.

Subsection 335(3) of the MRCA provides that the reasonable satisfaction (balance of probability) standard of proof applies to determining any claim for incapacity payments. The delegate needs to determine on the balance of probabilities that a person is incapacitated for service or work by virtue of their service injury or disease i.e. the contention must be demonstrated to be 'more likely than not'. The same standard of proof is applicable under the SRCA.

Delegates may only determine an entitlement to incapacity payments where the Commonwealth has already accepted liability for the injury that caused (or contributed to) that incapacity.

Investigation of the incapacity may commence without liability but no payments in relation to the claim can be made until such time as liability is accepted and for those with liability under the MRCA, a Needs Assessment has been undertaken in accordance with S325(2).  Such payments are not lawful.