'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.
1.2.1 DRCA - Definition of 'incapacity for work'
The word 'incapacity' is not specifically defined in the DRCA although Section 4(9) does establish an extended basis for determining whether a person has an 'incapacity for work':
4(9) a reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
an incapacity to engage in any work, or
an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
The word 'injury' used in this definition, is itself defined under Section 4. In short, it means only those injuries or diseases having a compensable nexus with employment.
1.2.2 Meaning of 'incapacity to engage in any work' - Ss4(9)(a)
This type of incapacity is for:
a period when a person is totally unable to work as a result of a compensable condition, or
a person is seeking medical treatment during work hours for a compensable condition.
During each of these periods, irrespective of the duration, the person is unable to engage in any work.
Note, that the AAT has rejected the argument that this phrase 'incapacity to engage in any work' at S4(9)(a) should be interpreted to mean that there is incapacity if there is any single form of work that the employee is unable to do. However, the proper interpretation is that there is incapacity for 'any' work if there is now no form of work that the employee is able to do.
In Re Sullivan and Comcare (1998), the Tribunal said:
67 Mr Johnson also referred to the definition of 'incapacity for work' in S4(9) of the Act. He submitted that 'incapacity for work' does not mean that an employee is incapacitated for all work: merely that the person has some incapacity which restricts the sort of work the person can undertake. The Tribunal notes there are two parts of the definition in S4(9), although in both cases the reference is to an incapacity suffered by the employee as a result of an injury. Paragraph (a) is 'an incapacity to engage in any work'. The alternative paragraph (b) is 'an incapacity to engage in work at the same level' at which the person was employed immediately before the accident happened.
68 In the Tribunal's view, the paragraph (a) reference to an incapacity to engage in any work, is a reference to being unable to undertake any form of work at all. This is the plain English meaning. By contrast, paragraph (b) is linked to the employee's work for the particular employer before the injury. The Tribunal rejected Mr Johnson's submission that paragraph (a) should be read as meaning a person is incapacitated if there is any form of work which they are unable to do.'
1.2.3 MRCA - Definition of 'incapacity for work or service'
An incapacity for service refers to a person's inability to undertake their military duties, whereas an incapacity for work refers to a person's inability to undertake civilian work.
Section 5(2) defines incapacity for service or work as:
incapacity for service, in relation to a person who has sustained an injury or contracted a disease, means an incapacity of the person to engage in the defence service that he or she was engaged in before the onset of the incapacity, at the same level at which he or she was previously engaged.
incapacity for work, in relation to a person who has sustained an injury or contracted a disease, means:
- an incapacity of the person to engage in the work that he or she was engaged in before the onset of the incapacity, at the same level at which he or she was previously engaged; or
- if the person was not previously engaged in work, an incapacity of the person to engage in any work that it is reasonably likely that he or she would otherwise be engaged in.
1.2.4 Meaning of 'incapacity to engage in work at the same level'
Incapacity to engage in work at the same level is when a person, because of their accepted condition/s is:
on a graduated return to work or unable to work pre-injury hours;
unable to undertake specific duties;
unable to work shifts or overtime; or
redeployed to a lower paying position.
For example, a person might be unable to engage in work at the same level at which he or she was engaged before the incapacity because the person is unable to perform all of his or her previous duties or is unable to work his or her normal weekly hours.