Most commonly claims for incapacity payments are received via the form ‘D1360 - Claim for Incapacity for Service/Work’, however there is no legislative requirement for a claim to be on this form and a claim cannot be refused because it is not on the ‘claim form’.
MyService has been updated with a new electronic Incapacity Claim Form, which enables clients to submit incapacity claims and attach all required documentation through their MyService account.
A period of incapacity may include any period when:
the person is not working ( i.e. is unable to engage in any work) because of the injury, or
after ceasing to be incapacitated, the person remains on an approved rehabilitation program, or
the person is restricted in work hours, ability to undertake shifts or undertake certain elements of the job ('work at the same level'), or
the person is away from work attending medical treatment.
'Incapacity' for the purposes of the DRCA and former Commonwealth compensation Acts, means incapacity for work.
‘Incapacity’ for the purposes of the MRCA means incapacity for work or service.
It should be noted that incapacity for work under the DRCA refers to the work the person was doing prior to the injury that led to their incapacity while under the MRCA, incapacity for service or work refers to the service or work the person was doing prior to the onset of the incapacity.
Incapacity payments are payable under the Safety, Rehabilitation and Compensation Act 1988 (SRCA) and the Military Rehabilitation and Compensation Act 2004 (MRCA). The Act under which liability for the incapacitating injury was accepted for dictates which Act incapacity payments are payable under.
'Former employee' is a term with a particular, defined meaning for the SRCA. Note, that 'former employee' does not mean an ex-member of the ADF.
Division 3 of Part X of the SRCA sets out special transitional provisions for weekly incapacity payments for certain employees who were incapacitated before the commencement of the SRCA on 1 December 1988. These special provisions apply only to 'former employees', as defined in S123:
Injuries prior to the commencement of the DRCA may result in periods of incapacity for work, both prior to and following, the advent of that Act (i.e. on 1 December 1988).
In practice, delegates will only rarely be required to calculate compensation for pre-1988 periods of incapacity. Nevertheless, it is still open for a person to claim compensation for such a period and from time to time a person may demonstrate a retrospective entitlement under an old Act.
Throughout the life of an incapacity claim the rate of payment will be subject to change and will cease when certain conditions are met. Cessation of payment may be as a result of the person no longer having an entitlement or remaining entitled to payment but with no compensation payable.
Incapacity payments are made as economic loss compensation by way of income replacement, as distinct from non-economic loss compensation such as for permanent impairment. Incapacity payments are generally linked to a person's pre-injury earnings and are taxable at the appropriate marginal tax rate prior to payment to the person. Instructions as noted on a person's Tax Declaration form must be followed.
