Delegates do have the power to deem a member's ability to earn in suitable work in accordance with the guidance provided in section 181.
The Incapacity delegate should work closely with the Rehabilitation Coordinator at the close of rehabilitation program.
When a person is in suitable work the delegate must have regard to the amount the person is earning in that work.
If, however, any of the following apply:
- the person fails to accept an offer of suitable work;
- an offer of suitable work is made and accepted but the person fails to begin or continue the work; or
- an offer of suitable work is made conditional on the person completing a rehabilitation program but the person fails to do so; then
the delegate must have regard to:
- the weekly amount the person would be earning in that suitable work; and
- whether the failure was reasonable;
in determining actual earnings.
Similarly, if a person fails to seek suitable work, the delegate must have regard to the weekly amount the person could reasonably be expected to earn in suitable work, having regard to the state of the labour market at the time, and whether the failure was reasonable in all circumstances.
Additionally delegates may have regard to any other matter they think relevant in the circumstances.
The MRCA Rehabilitation Principles and Protocols, which have been approved by the MRCC, state that if the person can show genuine yet unsuccessful attempts to obtain employment they will not be “deemed” when suitable employment is not possible.
MRCA Rehabilitation Principles and Protocols
In certain circumstances it is possible that a person may be deemed AE in ADF employment. For example, where a person refuses a corps transfer and elects to be medically discharged the delegate may consider the former member has failed to accept an offer of suitable work and therefore has an ability to earn in the ADF employment to which a corps transfer was offered. Similarly a member may choose to pursue Reserve employment, post discharge from the Permanent Forces, in preference to pursuing civilian employment. In this scenario it is possible to deem the person AE in that Reserve employment. If the person had failed to seek suitable work then they may also be deemed AE in civilian work.
In addition under MRCA, a Reservist may be deemed AE in their civilian employment (work) while they have an incapacity for service (unable to undertake their military duties). The distinction between the two types of work needs to be brought to the attention of the Reservist's treating practitioner. The doctor must provide guidance in respect of each type of employment the person is unable to perform, and identify the restrictions that must be applied to the employment the person can perform.
The overriding criteria when deeming a person AE must always be whether the failure (or decision) of the person was reasonable in the circumstances. The medical evidence should be integral in determining reasonableness, but other factors should also be considered.
For example, a full time serving member is to be medically discharged because of his accepted condition however, because he is a Medical Officer he is offered a critical skills waiver. You could say that as he has failed to accept an offer of suitable work made to him and it would be appropriate to determine that he has actual earnings equal to his military salary. In this scenario the person refuses the critical skills waiver because he believes his condition would prevent him from fully completing his medical duties, his pain would be aggravated by working in the ADF environment and his condition could possibly worsen. Due consideration must be given to all reasons why the critical skills waiver was refused.