2.16 Incapacity payments when a person is not in employment

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.

2.16.1 SRCA

For SRCA claims it needs to be established that the person would be unable to engage in any work (totally incapacitated) or unable to engage in work at the same level they were undertaking prior to the injury (i.e. their defence service) in order to be considered incapacitated.

The closer the alleged incapacity is to the date of discharge, the smaller the interval over which any alleged deterioration or aggravation has been operating. If there is no/minimal deterioration in the condition since discharge this would suggest that, if not for the discharge, the person would still be able to continue in service despite the injury and would not be eligible for payment. Conversely, a medical discharge due to the accepted injury indicates that the person is unable to continue in their defence employment.   

Incapacity for work may also first occur many years after discharge. For compensation to be payable, the delegate must be satisfied that the compensable injury results in an incapacity. The person’s work history, sporting activities, accidents and illnesses since discharge should be investigated. The person should also be asked to declare all civilian compensation or common law settlements for their post-discharge injuries. Medical certification should preferably be from a medical practitioner who has visibility of the person’s history.

A person who is not in employment, but could be (i.e. there is nothing else removing capacity for employment) and submits a claim for payment for treatment (e.g. surgery, inpatient programs etc.) that completely removes capacity for employment during the period is considered incapacitated for work.  Whether a person continues in payment following recovery would depend on whether they are fit to return to the work they could otherwise be reasonably engaged in. 

2.16.2 MRCA

For MRCA claims, incapacity for work for a person who is not in work, is an incapacity to engage in any work that it is reasonably likely that he or she would be otherwise engaged in.

Factors that might be relevant in order to establish what work is reasonably likely include: the person’s knowledge and experience, qualifications/skills and abilities; travel requirements; the degree of difficulty of types of work; and the state of the relevant labour market. A rehabilitation assessment may be required to establish what work a person is reasonably likely to be otherwise engaged in.

It is possible that a person would not otherwise be engaged in any work i.e. a person who has removed themselves from the labour market in order to be a full-time carer.

When a person is unemployed and job seeking i.e. on job seeking benefits, delegates need to consider whether the person’s injury results in an incapacity for the type of employment the person could be reasonably doing and seeking employment in. For example; a person who could be doing labouring/manual work and was seeking labouring/manual work would be incapacitated for work if their condition results in an incapacity to do that work i.e. no capacity or restricted hours for that employment.

A person who is not in employment, but could be (i.e. there is nothing else removing capacity for employment) and submits a claim for payment for treatment (e.g. surgery, inpatient programs etc.) that completely removes capacity for employment during the period is considered incapacitated for work.  Whether a person continues in payment following recovery would depend on whether they are fit to return to the work they could otherwise be reasonably engaged in. 

Whether a person is incapacitated for work is a matter of fact and a common sense judgement on whether the person meets the definition of incapacitated for work having regard to medical and other evidence.