Involuntary medical discharges are mediated by the ADF's medical classification system.
The ADF Medical Employment Classification (MEC) has the following levels:
MEC 1. Fully Employable and Deployable
Medically fit without restriction for deployment or seagoing service for the military occupation specified in the individual case. Personnel classified as MEC 1 are eligible for the full range of posting and service opportunities.
Note: Initial entry to the ADF is at MEC 1 only although a re-enlistment or cross-service transfer (i.e. Army to Air Force) may be at MEC 2.
MEC 2. Employable and Deployable with Restrictions
- Medically fit for deployment or seagoing service but with:
- limitations on the range of duties able to be performed;
- geographic restrictions (for instance unable to serve in tropics etc.); and/or
- a requirement for access to various levels of health support.
Personnel who are classified as MEC 2 may continue to serve. They are eligible for a range of posting and deployments applicable to their military occupation within their defined employment restrictions. Inter and intra-service transferees and personnel reallocated to another occupation or those re-enlisting in the ADF may be MEC 2.
MEC 3. Rehabilitation
All MEC 3 sub-classifications are defined as not fit for operational deployment. MEC 3 is for those medical conditions or injuries that are considered temporary and for which there is a reasonable expectation that the Defence member will return to a deployable status following a period of rehabilitation and recovery. Defence members allocated MEC 3 may be fit for specified field activities and for seagoing activities in accordance with individual rehabilitation programs as defined by the designated single-Service Medical Officer (MO), or delegate, in accordance with relevant health policy.
MEC 4. Employment Transition
MEC 4 is designated as an employment transition category that provides several options for the medium-term employment of Defence members who are no longer fully employable in their current employment group. Individual placement will be determined primarily by workforce planning and management considerations. A placement in a MEC 4 may result in:
- Transition to a deployable MEC;
- transition to an alternate employment group;
- or a period of limited employment, based on Service requirements, prior to transition from the ADF.
MEC 5. Medically Unfit for Further Service
The MEC 5 sub-classifications are:
MEC J51- Not Employable on Medical Grounds—Medically unfit and not employable other than within applicable restrictions in the period leading up to termination.
- MEC J52- Not Employable on Medical Grounds—Non-effective and unable to be employed in the period leading up to termination.
6.5.11.1 Significance of an involuntary medical (MEC 5) discharge
Medical dischargees are, virtually by definition, incapacitated for (defence) service. However, not all persons who have been medically discharged are incapacitated for (civilian) work.
The ADF requires, as a condition of continued employment, high standards of personal physical fitness and functional ability from its members. ADF members must be capable of deployment to operational service and to reliably perform physically and mentally demanding tasks under combat conditions, in locations where there may be no medical support for an ongoing condition. An injured member may therefore be medically discharged from the ADF for a failure to meet the high fitness and health standards for deployment, yet still be capable of earning an income in suitable civilian work. This is because civilian work does not require combat readiness or the ability to serve in a war zone.
Nevertheless and regardless of the residual capacity for civilian work, a medical discharge provides a medical opinion that the person is incapacitated for the full range of requirements of Defence service. Therefore, the very fact of a medical discharge provides a medically certified entitlement to incapacity payments, current at and from the date of discharge.
6.5.11.2 Entitlement immediately following medical (MEC 5) discharge
On the basis of the loss of Commonwealth employment due to the involuntary medical discharge, it is policy to accept the MECRB decision for medical discharge (that is related to an accepted service injury or disease) as medical certification of up to four weeks incapacity, from the date of discharge.
However this ‘default’ authorisation of payment does not of course, extend beyond the start-date of any civilian employment commenced during that same four week period.
Important note: Following this four week period, the person must, if payments are to continue, produce further medical certificates from their treating doctors, to demonstrate continuing incapacity for civilian work.
The Separation Health Examination, listing medical conditions, should be used as evidence, in conjunction with the actual MECRB decision, bearing in mind that a MECRB decision may be made several months prior to the actual date of discharge.
Delegates should not approach Defence to request that a MECRB decision be amended to include accepted disabilities.
6.5.11.3 Injured recruits discharged with category ‘Untrainable’
Some recruits, specifically RAAF, are sometimes discharged before completing recruit training with a classification of ‘Untrainable’, rather than medically discharged.
‘Untrainable’ covers a wide range of situations, including non-medical or non compensable factors such as lack of aptitude etc. In general, no prima facie presumption should be drawn that a member discharged as ‘Untrainable’ is entitled to incapacity payments.
However in some cases the circumstances of an ‘Untrainable’ discharge are almost indistinguishable from a medical discharge. For instance
· a recruit sustains relatively minor compensable injuries during recruit training and these are expected to eventually resolve completely; or
· although expected to make a full recovery, the enforced inactivity and/or inability to participate in the program will be protracted enough so that the recruit will be unable to complete the training course; or
· rather than disrupt the recruit training process the recruit’s medical situation is stabilised and he or she is discharged as ‘untrainable’.
A discharge classification of ‘Untrainable’ allows the recruit to rejoin once the medical rehabilitation process is complete, whereas a MEC 5 classification infers a permanent unfitness for service and may prevent re-enlistment.
In these circumstances, these persons should be afforded the same four week period of payment before further medical certification is required, as is provided to those being medically discharged.
Delegates should distinguish between the claims of those discharged as ‘Untrainable’ for compensable medical reasons and others also being discharged with the same description/category, but for other and non-compensable reasons (such as lack of aptitude, pre-existing conditions etc.). Only those discharging due to the effects of compensable injuries are eligible for the four week period of incapacity payments before further medical certification is required.
6.5.11.4 Top-up Incapacity Payments
6.5.11.4.1 Legislation
The term ‘top-up payment’ does not feature in the MRCA, instead it is an informal term used to describe incapacity payments to people who have earnings. When a person has earnings from employment (actual or deemed) and is paid incapacity payments on top of this amount so that their total earnings (their actual earnings plus incapacity payments) is equal to a percentage of their NE this is often referred to as top-up payments.
Section 5 of the MRCA defines incapacity for work. The definition references an incapacity to engage at the same level in the work they were doing prior to the onset of incapacity. An 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.
In each of the situations above a person is in employment but has suffered a financial loss and is eligible to receive incapacity payments. The payments are based on the difference between their NE and their actual earnings. The value of the incapacity payment a person receives may not directly translate to the amount the person has actually lost.
6.5.11.4.2 Establishing an inability to engage in work at the ‘same level’
6.5.11.4.2.1 Serving members
If a serving member can no longer perform the trade skills or duties they were performing prior to the onset of their incapacity and is transferred to an alternative occupation within the ADF and the redeployment results in a financial loss, such as a loss of Pay Grade or Rank, then they are not working at the same level and incapacity payments are payable. If there is no financial loss, they are not considered to be incapacitated and no payments are made.
6.5.11.4.2.2 Former members
The MRCA does not specifically reference the method of discharge in order to establish if a person is incapacitated for work i.e. medical or non-medical. There is no distinction made between a person who has been medically discharged compared to a person who has been non-medically discharged. Instead, the work the person was doing prior to the onset of incapacity is considered in order to establish eligibility for payment. A medically discharged member must demonstrate an incapacity for ADF or civilian work. For a non-medically discharged member, the work they must demonstrate an incapacity for is their civilian work (and the issue of whether they are incapacitated for service is irrelevant).
In establishing whether a person should receive incapacity payments delegates should consider the method of their discharge to determine which type of work the person needs to demonstrate an incapacity for, but this is not the only determining factor. There are a range of circumstances where a former member may be entitled to ongoing incapacity payments when they have an ability to earn.
The simplest scenario is when a person has been medically discharged, is working in civilian employment but the medical evidence indicates that they continue to suffer from the accepted condition and are unable to return to ADF employment (i.e. the work they were engaged in prior to the onset of incapacity). In most cases, a medical discharge will preclude a person returning to ADF employment but medical certification is still required.
In other cases a person may have been non-medically discharged and claiming incapacity payments because they have been unable to continue in their civilian employment due to their injury. If a person is totally incapacitated due to their injury, receives incapacity payments (with no earnings held in calculations) and subsequently commences new employment, their entitlement to continuing payment after commencing employment is based on whether their new civilian work is at the same level as their previous civilian work i.e. the same level of earnings and hours. Ultimately the person has to suffer a financial loss to receive incapacity payments.
Alternatively, a person may be continuing in the same employment but not at the same level due to their accepted condition i.e. working less hours or different duties that do not attract the same pay. As they are not working at the same level as they were engaged in prior to the onset of the incapacity they would be entitled to payments despite continuing to have earnings.
If a person has not been in employment post discharge, the delegate should consider if the person is incapacitated for the work that would be ‘reasonably likely that he or she would otherwise be engaged in’ (Section 5). The delegate must determine if the work they are now doing is ‘at the same level’ in order to determine if the person’s payments should continue. The issue here is that there is no demonstrated reference point to establish if they are working ‘at the same level’.
To establish what work the person may have been reasonably engaged in if not for their injury or disease, the delegate should consider the work the person could have been doing based on their education, skill set, job market, location etc. A rehabilitation assessment may be the most appropriate way to establish this. If the person can no longer engage in this work then incapacity payments should be made. If the person returns to employment after a rehabilitation plan, incapacity payments should continue if they are not working at the same level prior to the incapacity i.e. they have been unable to secure employment at the same level as the work they would have been reasonably likely to be working in if not for the injury. In these cases, working at the same level considers more than just working the same hours (and should consider whether they are earning the same amount).
6.5.11.4.2.2 Example 1
A person was medically discharged from the ADF. After discharge they secure employment as a full-time plumber. The person is earning less in their civilian plumbing role then they were earning in their ADF role. As the person is not working at the same level (i.e. they are earning less) as they were before the onset of incapacity they are entitled to ongoing payments.
6.5.11.4.2.2 Example 2
A person was non-medically discharged and has claimed incapacity payments as their civilian work is not suitable due to their accepted condition. They are put into payment and on a rehabilitation plan. The person was working as a plumber earning $50,000 per year. The person is rehabilitated back into full-time work as a plumbing supplies sales assistant earning $30,000 per year. As the work is not at the same level (i.e. it pays less) the person is entitled to continuing payments.
6.5.11.4.2.2 Example 3
A person was non-medically discharged and has claimed incapacity payments as they are not able to continue working full-time in their role as a plumber due to their accepted condition. They are put into payment and on a rehabilitation plan initially continuing to work 20 hours per week. Modifications are made to their duties and they eventually return to work for 30 hours per week. As the work is not at the same level (i.e. less hours) the person is entitled to continuing payments. Should the person eventually return to full-time hours and earnings i.e. work at the same level, they would no longer be entitled to top up payments as there is no financial loss.
It is important to note the person should be engaged with rehabilitation as soon as possible in order to assist them maximise their capacity and minimise their loss.
6.5.11.4.2.2 Example 4
A person has non-medically discharged and has not worked since their discharge. They have claimed incapacity payments during a period of surgery. They do not recover completely following the surgery and continue to have restrictions for employment i.e. no heavy lifting/squatting. The person is put into payment during their period of total incapacity and then during a rehabilitation plan. At the commencement of the plan, the rehabilitation service provider is able to establish the type of work the person could have been reasonably likely to have been engaged in if not for their injury or disease. It is established that the person has a range of skills, and relevant education and experience related to plumbing and could have been working full-time. They then secure employment working as a plumbing supplies sales assistant working full-time hours. As the person is working at the same level as they could have been prior to the period of the incapacity they are not continued in payment.