Chapter 4 Military Compensation

Transcription

1 Chapter 4 Military Compensation

2 Pension Officer November 2009: Repatriation Handbook Part A The Rehabilitation and Compensation Group (RCG) Contents 1 Introduction 1.1 Purpose of the RCG 1.2 Legislation Chart 2 Eligibility under SRCA/VEA/Defence Acts 2.1 Who is eligible? 2.2 When is someone covered by the SRCA? 2.3 When is coverage provided under the Defence Act 1903? 2.4 Dual Eligibility 2.5 When is a person not covered? 3 Accepting Liability for Service Injuries, Diseases and Deaths 3.1 Initial Liability 3.2 Injury Claims What is an injury? Exclusionary provisions for injuries 3.3 Disease Claims Employment Contribution Under Different Acts Date of injury for diseases 3.4 Travel / Journey Claims Journey Place of residence Place of work 3.5 Unintended Consequence of Commonwealth Medical Treatment 3.6 Aggravation, Acceleration and Recurrence 3.7 Sporting and Training Activities 3.8 Claims for Loss or Damage to Property 3.9 Death Claims 4 Completing and Substantiating Claims 4.1 The Legislation 4.2 How Does Someone Make a Claim 4.3 Obligations 4.4 Can a Decision be Reviewed? 4-2

3 November 2009: Repatriation Handbook Pension Officer 5 Incapacity Payments 5.1 What are Incapacity Payments? 5.2 Eligibility Incapacity for Work 5.3 Calculating Payments Normal Weekly Earning (NWE) for former full time ADF members Normal Weekly Earning (NWE) for part time reservists Ability to Earn (AE) 5.4 Superannuation and Calculating Payments 5.5 Step Up Formula 5.6 Redemption 5.7 Medical Discharge 5.8 Medical Discharge Interim Payments 5.9 When are Incapacity Payments NOT Payable? 5.10 Changes to Pay After Injury 5.11 Allowances Allowances that are NOT Compensable 5.12 Lodging a Claim for Incapacity Payments 5.13 Supporting Evidence 6 Military Rehabilitation 6.1 Target Groups 6.2 Order of Preferred Vocational Rehabilitation Outcomes 6.3 Vocational Programs 6.4 Transition Management 6.5 Other Services Attendant Care Benefit Household Services 7 Permanent Impairment 7.1 What is Permanent Impairment 7.2 How are Lump Sum Payments Calculated? Whole Person Impairment Non-economic Loss 7.3 The Amount Payable 7.4 Compensation Claim for Permanent Impairment Determining Permanent Impairment Further Investigation Accepting Permanent Impairments 7.5 When is a Permanent Impairment Claim Disallowed? 7.6 Interim Payment 7.7 Additional Entitlements Severe Injury Adjustment Benefits 7.8 Further Lump Sum Payments 7.9 Multiple Impairments Arising from One Incident 7.10 Date of Permanency 7.11 Old Acts 1930 and 1971 and Permanent Impairment 7.12 Permanent Impairment Claims when a Client is Deceased 4-3

4 Pension Officer November 2009: Repatriation Handbook 8 Injuries Resulting in Death 8.1 Death Benefits 8.2 Who is Eligible to Claim 8.3 Lodging the Claim 8.4 Lump Sum Payments 8.5 Weekly Payments for Each Dependent Child 8.6 What if there are no Dependants? 8.7 Funeral Expenses 9 Compensation and Disability Pension Offsetting 9.1 The Effects of Receiving a Lump Sum Payment 9.2 Disability Pension Offsetting 10 Reconsiderations and Appeals 10.1 Reconsiderations 10.2 Appeals 10.3 Federal Court 11 Medical Expenses and Other Benefits 11.1 What is Medical Treatment 11.2 Therapeutic Treatment 11.3 Prosthetics 11.4 Nursing Care 11.5 Pharmaceutical 11.6 Diagnostic Testing 11.7 How to Request Treatment 11.8 Payment of Medical Accounts 11.9 Travel Expenses 4-4

5 November 2009: Repatriation Handbook Pension Officer 1 Introduction 1.1 Purpose of the Rehabilitation and Compensation Group The Rehabilitation and Compensation Group (RCG) provides workers compensation and rehabilitation services for serving and ex-serving members of the Australian Defence Forces (ADF). If a person is injured, develops an illness or dies as a consequence of their ADF service, the RCG provides cover under the Safety, Rehabilitation and Compensation Act 1988 (SRCA) Additional compensation also may be paid under the Defence Act 1903 to those who are severely injured and to the families of those who die in compensable circumstances. The SRCA only applies to conditions arising out of full time or part time ADF service rendered from 1 December 1988 until 30 June Practitioners should note that: Operational service was not covered by SRCA until the enactment of the Military Compensation Act on 7 April 1994; and SRCA has been amended since the introduction of MRCA on 1 July 2004 and some of the current provisions in the Act do not apply to ADF claims. For more information on claiming for benefits under the SRCA, please see the following Fact Sheet: Overview of the Safety, Rehabilitation and Compensation Act 1988 (SRCA)... MCS 01 This Factsheet outlines the Safety, Rehabilitation and Compensation Act 1988 (SRCA) which covers compensation for Australian Defence Force (ADF) permanent and reserve members and ex-serving members who were injured or became ill as a result of their service between 3 December 1949 and 30 June

6 Pension Officer November 2009: Repatriation Handbook 1.2 Legislation Chart HISTORY OF LEGISLATION THAT COVERS MILITARY SERVICE 1/9/71 7/12/72 22/5/86 1/12/88 7/4/94 1/7/04 History of legislation that covers Peacetime Veterans Entitlements military service service from Act /12/72 Repatriation Act 1920 Military Compensation Act 1994 Compensation (Commonwealth Government Employees) Act 1971 Safety, Rehabilitation and Compensation Act MILITARY REHABILITATION AND COMPENSATION ACT

7 November 2009: Repatriation Handbook Pension Officer 2 Eligibility under SRCA 2.1 Who is eligible? The RCG will provide compensation and rehabilitation cover for the following members of the ADF: all members of the permanent Defence Force; all members of the Reserve force; cadets, officers and instructors of cadets; and other people declared in writing by the Minister, who: hold an honorary rank in the Defence Force; are members of philanthropic organisations that provide services to the Defence Force; and are undertaking resettlement training under an arrangement made by the Defence Force. 2.2 When is someone covered by the Safety Rehabilitation and Compensation Act (SRCA)? The SRCA provides coverage while on war-like (operational), non war-like (peacekeeping, hazardous) and peacetime (full-time and part-time) service when injury or death occurs, including: at work or during an ordinary break (eg lunch); during a journey between home and work; during authorised and published activities outside of normal working hours (eg approved participation in sport); or while undergoing approved resettlement training after discharge under an arrangement made by the Defence Force. Although members of the ADF are available for duty 24-hours a day, members are covered under the SRCA only when on duty. The benefits to which someone may be entitled when claiming compensation will depend on the date on which your injury or illness occurred. 2.3 When is coverage provided under the Defence Act 1903? In addition to compensation under the SRCA, the Commonwealth pays compensation under a Defence Act determination to those serving members who are severely 4-7

8 Pension Officer November 2009: Repatriation Handbook injured (that is, paraplegia, quadriplegia, total blindness or any other injury having a similar effect), and to the families of those who are killed in compensable circumstances. 2.4 Dual eligibility under SRCA and the VEA In some situations, members may be entitled to coverage under both the VEA and the SRCA. They may access benefits under both legislations, and the benefits are different under each act. Dual eligibility however does not mean dual payment and if benefits are payable under both acts, some degree of off-setting may apply. 2.5 When is a person not covered? There are various exclusionary circumstances in which injuries arising out of ADF service are generally not covered for compensation purposes. These are covered in later sections of this chapter. Workers compensation coverage for current and former members of the ADF for injuries prior to 1 July MCS03 The fact sheet is a guide to the circumstances in which ADF members and former members may be covered for workers compensation. 3 Initial Liability for Service Injuries, Diseases and Deaths 3.1 Initial liability The RCG Military Rehabilitation and Compensation Commission (MRCC) delegate needs to establish a link between the injury or disease and conditions of service before liability can be accepted. One of the questions asked to help determine this is: Did the conditions of service cause or contribute to the injury or disease? 3.2 Injury claims The test for liability for injuries, and aggravation of injuries, under the SRCA is whether the injury arises out of, or in the course of, the employee s employment with the Commonwealth. Arising our of employment means the injury was directly caused by the work that the person had to do; or which was the result of an event that occurred in the workplace. In the course of employment means that the injury was caused by something less direct but nevertheless incidental to that work. Either test is applied to help establish liability. To determine whether a person is injured in the course of employment the question is: Was the person doing something which he/she was reasonably required, expected or authorised to do in order to carry out his/her duties? What is an injury? Section 4 of the SRCA contains the definitions for various words contained in the legislation. 4-8

9 November 2009: Repatriation Handbook Pension Officer The definition of Injury is; a disease suffered by the employee; or an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee s employment; or An aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee s employment), being an aggravation that arose out of, or in the course of, that employment. Leaving aside disease for the moment, when we talk about an injury we are referring to a condition that resulted from one particular incident or accident, usually with some demonstrable evidence (e.g. bruising, swelling, blood etc.) Exclusionary provisions for injuries The MRCC is generally liable to pay compensation in respect of a service related injury if the injury results in death, incapacity or impairment. However the Act contains various exclusionary provisions which may prevent the acceptance of liability even if the injury arose out of service: An injury arising as a result of reasonable disciplinary action taken against an employee would generally not be accepted. For example, if a person submits a claim for a stress condition that arose as a result of undergoing disciplinary action, their claim could fail. When an injury arises out of the failure of an employee to obtain promotion, transfer or benefit in connection with his employment, it would generally not be accepted. For example, if a person submits a claim for an anxiety disorder arising as a result of not being promoted, their claim could fail. Compensation is generally not payable in respect of an injury that is intentionally self-inflicted. Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally selfinflicted, unless the injury results in death or serious and permanent impairment. These exclusionary provisions have been well tested in the Courts. A summary of relevant case law can be found in the SRCA annotated act. 3.3 Disease Claims By definition from the SRCA a disease is: Any ailment suffered by an employee or the aggravation of any such ailment, being an ailment or an aggravation that was contributed to in a material degree by the employee s employment. Likewise, ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development). 4-9

10 Pension Officer November 2009: Repatriation Handbook For practical purposes, disease generally means a medical condition of mainly gradual development and usually without a single identifiable traumatic cause. As opposed to a simple injury, it does not necessarily involve an act or a specific event. For instance, infectious conditions, most mental ailments and gradual attrition or degeneration (e.g. of the joints), are all diseases. An exception to this general rule is post traumatic stress disorder, which has been deemed by case law and by MRCC policy to be a disease even though it is caused by a traumatic event Employment contribution under different Acts Nature of employment The disease must be totally due to the nature of the employment. A mere contribution is not sufficient Any contribution by employment Employment contributed to the condition in any degree generally accepted that at least 1% contributing factor Material Contribution by employment Employment must have contributed by at least 10% Date of injury for diseases Establishing a date of onset of a disease is critical to the determination of liability as the criteria for acceptance varies according to the Act in force as per the previous section. It is often not possible to establish a precise date of injury for the onset or aggravation of a disease. Often the date of diagnosis will be considerably later than the date of the first manifestation of symptoms or the date of the first medical examination for the condition. Accordingly, the legislation specifies that for a disease, the date of injury shall be taken to be the earlier of the following: The date on which the employee first sought medical treatment for the disease (or aggravation of the disease); or The date on which the disease (or aggravation) resulted in the death of the employee or first resulted in incapacity for work or impairment. 3.4 Travel and Journey Claims Compensation may be payable if a member is injured during specified travel, the SRCA extends liability for compensation where the member was travelling between certain specified places Journey Journey encompasses: 4-10

11 November 2009: Repatriation Handbook Pension Officer Temporary absence during ordinary recess, Travel from a place of residence to a place of work, Travel between normal residence and temporary residence for the purposes of employment, Travel between places of work, Travel between work and a place of education, Attendance at a place of education, Travel between residence and other places for the purposes of the SCRA, Attendance at other places for the purposes of the SRCA Place of residence Place of Residence encompasses: The place where the employee normally resides; The place where the employee temporarily, as a matter of necessity of convenience for the purpose of his/her employment; Any other place the employee stays, or intends to stay overnight, a journey which from the employee s place of work does not substantially increase the risk of sustaining an injury when compared with the journey from his/her place of work, to the place where the employee normally resides Place of work Place of Work encompasses: Any place at which the employee is required to attend for the purposes of carrying out the duties of his/her employment. Note that when we look at journeys from home to work and vice versa, the journey starts and ends at the boundary to the property, that is the fence line. For example, if a member injures his back whilst getting in his car which is parked in the carport his claim would be denied, where if the car was parked in the street the claim may be accepted. Disentitlement of journey claims could occur when: There is an increase in risk. Examples may include speeding, not wearing seatbelts, driving in a vehicle that is not roadworthy etc. There is an interruption. Stopping to do shopping may increase risk if, for example, the claimant was then caught in peak hour traffic. Calling into the local hotel may increase risk if, for example, the claimant s driving ability was impaired by alcohol. There is a change in the normal or most expedient route taken which has led to an increase in risk. 3.5 Unintended Consequences of Commonwealth Medical Treatment There are two distinct elements to this requirement: The injury must be a consequence of Commonwealth medical treatment; and 4-11

12 Pension Officer November 2009: Repatriation Handbook The consequential injury must be an unintended outcome of treatment. If the subsequent injury is a significant known risk of undergoing certain medical treatment, then liability will not be accepted. It is important to note that in applying this provision, the courts have determined that the meaning of injury has its normal plain english meaning and does not encompass diseases. 3.6 Aggravation, Acceleration and Recurrence Compensation is also payable for the aggravation, acceleration and/or the recurrence of diseases. Evidence of initial diagnosis of the disease must be provided, as aggravation cannot be established unless the disease first existed. For example: if the member had a pre-existing condition and the military service aggravated the condition, then liability may be accepted. Acceleration refers to the speeding up of symptoms of an existing condition. 3.7 Sporting and Training Activities Compulsory physical training and compulsory participation in some ADForganised sporting events are conditions of service which apply to most members. These are of course, on duty activities and the nexus with employment is clear. Where an injury arises during ADF physical training or at an ADF sporting fixture, there is liability to pay compensation for that injury. Note: Approval to participate in a civilian sporting activity does not give automatic liability to pay compensation. 3.8 Claims for Loss of, or Damage to, Property Compensation claims for loss/damage to property are rare for the RCG. However, claims are occasionally received for damage to prescription spectacles. Definition: an artificial limb or other artificial substitute, or a medical, surgical or other similar aid or appliance used by the employee. This provision only applies in cases where the claimant has not suffered a bodily injury. Where the claimant has incurred physical injury in addition to the loss or damage of property, any claim for loss or damage to property will be included in the claim for injury. 4-12

13 November 2009: Repatriation Handbook Pension Officer 3.9 Death Claims Compensation cases potentially involving payment of a death benefit represent the highest priority claim within MRCA processes. It is to be given attention in preference to all other types of claim or requests for benefit. The reason for this status lies in the need to provide financial support to persons who have had income (and perhaps access to an ADF residence etc.) suddenly removed by the death. Deaths for which compensation is only claimed years after that death are of course not in the same urgent category, unless the dependant can demonstrate that he/she is currently in dire need. Nevertheless, all such claims should be investigated as quickly as possible. 4 Completing and Substantiating Claims 4.1 The Legislation Section 53 refers to Notice of Injury. It states that the notice be in writing and be as soon as practicable after the injury. The longer the period of time between the injury and the lodgement the more difficult it may become to have the claim accepted. For example access to the relevant supporting documentation may become more difficult, as would the locating of witnesses. Section 54 refers to Claims for Compensation. It states that the members must submit a written claim and include relevant medical evidence. If a member cannot supply medical evidence (particularly service medical evidence) then the RCG will usually attempt to obtain them. For example the RCG will request medical documents from ADF Health Services. Note: The onus remains on the claimant to substantiate the claim with medical and factual evidence. 4.2 How does someone make a claim? Members should formally report injuries or illnesses through their unit or ship s office. Then, to claim under the SRCA, obtain Claim for Compensation and Rehabilitation D2020 forms from the unit orderly room or ship s office or by telephoning the nearest DVA office. Claim forms can also be found on the DVA web-site. Claim forms and assistance in completing them is also provided by many ex-service organisations. Complete the form and provide all information requested on it. In particular, copies of the following should be provided: any relevant Service medical records, including Entry Medical Board documents; any report of injury and witness reports completed at the time the injury occurred (these will normally be held with Service medical records); 4-13

14 Pension Officer November 2009: Repatriation Handbook Final Medical Board documents if the person have been discharged; a statement describing attribution of the claimed condition to ADF employment; and any other medical reports (including reports from civilian doctors) or information which may help to establish entitlement to compensation. If a person is claiming for more than one condition, a separate claim form for each condition should be submitted unless the conditions arose from the one incident. Once completed the claim form and all associated documentation should be sent to the DVA office in the state where the claimant lives. A copy of the claim should be kept as a personal record. Ensure the following points are correct and complete before submitting a Claim Form: Ensure the Claim form is signed and dated where required. Record date of enlistment and discharge, if appropriate. Record how the condition arose what occurred, how, where and when. Accident or Incident Report must be fully completed, and/or evidence that the injury was duty related (other than medical documents). Copies of all medical documentation regarding the injury from the date of the injury to the present time. This information is for the ongoing management of the condition should initial liability be accepted. A correct diagnosis of the condition. For the purpose of accepting liability it is essential that the correct diagnosis be provided. For example back pain is not a diagnosis, but lumbar spondylosis is. Has the correct Proof of Identity been provided? 4.3 Obligations Generally the onus of proof of making and establishing any claims rests with the claimant. It is in their interest to provide as much information and evidence as possible in support of the claim. Whilst it is the claimant s responsibility to provide all relevant documentation and information requested on the claim form, the RCG can help obtain relevant information fro m the ADF. 4-14

15 November 2009: Repatriation Handbook Pension Officer 4.4 Can a decision be reviewed? When someone makes a claim for compensation for an injury or illness that they believe is work-related, the Commonwealth will decide whether to accept the claim or to reject it in part or in full. If any part of the claim is rejected you will receive a letter advising of the reasons. If a claimant disagrees with the decision they may seek a review if: they are not satisfied with the reasons given to reject the claim; or the claimant has more evidence to support the claim. Clients may ask for a reconsideration of any decision that relates to their claim. This includes, but is not limited to, the initial decision regarding liability of the Commonwealth, entitlement to weekly or permanent impairment compensation, the payment of medical expenses, modification to home or workplace, payment for household services and the provision of rehabilitation services. The dependants of a deceased member may also ask for decisions relating to their claims be reconsidered. For a more detail on the Review process, see part 10 of this chapter. 5 Incapacity Payments 5.1 What are incapacity payments? Incapacity payments are compensation for loss of income due to an accepted condition. Fortnightly payments are paid into the client s nominated account. Incapacity payments are generally taxable. Exemptions to this are compensation for the loss of reserve force earnings and compensation for the loss of tax free allowances. Medical Evidence Medical Discharge Where a member of the ADF is discharged medically unfit as a result of a compensable condition liability exists to pay incapacity payments. During the first four weeks following discharge there is no requirement to provide medical evidence of incapacity for work. After four weeks a medical certificate is required to support incapacity for work. Medical Evidence Non-Medical Discharge Where a member leaves the ADF for reasons other than the compensable condition (e.g. resigns or retires) there is no automatic liability to pay incapacity payments even though they may have an accepted claim. 4-15

16 Pension Officer November 2009: Repatriation Handbook The claimant must provide medical evidence supporting their contention that it is their compensable condition that prevents them from working. Workcover or Comcare certificates are preferred and must support the link between the accepted condition and the incapacity. 5.2 Eligibility Incapacity for Work Section 4 (9) of the SRCA provides a definition of incapacity: (a) (b) an incapacity to engage in any work an incapacity to engage in work at the same level which he/she was engaged by the Commonwealth before an injury happened. There are three key tests for eligibility for entitlements: Liability must be accepted for the condition that is rendering the person incapacitated for work. The claimant must be incapacitated as a result of the accepted condition, either totally or partially. The claimant must have sustained a loss of income due to being incapacitated for work. Any clients in an approved rehabilitation program will receive incapacity payments as if they were totally incapacitated. 5.3 Calculating Payments Incapacity payments are calculated as follows; Normal Weekly Earnings (NWE) minus Ability to Earn (AE) Incapacity payments compensate for the loss of wages or salary that the client could have expected to earn (normal weekly earning), but for the accepted condition. The client must be in receipt of wages or salary and lose it due to the accepted condition, in order to receive incapacity payments. It does not apply to income that may have been earned through prospective promotion. For example Someone may think that but for the accepted condition they would have been a Sergeant by now (but they were a private at the date of discharge) would not be compensated for the possibility of future wages. The MRCC does not compensate for What if or maybe scenarios Normal weekly earnings (NWE) for former full time ADF members NWE is taken to be salary for Rank and Pay Group plus Service Allowance, and including any certain other allowances payable at the time. 4-16

17 November 2009: Repatriation Handbook Pension Officer The rank and pay group used to calculate the incapacity rate is that current at the date of discharge. An example is a client who discharged ten years ago at the rank of Sergeant. Since discharge they have been working in a high paid management position. They are now incapacitated for work as a result of their accepted condition. Their payment will be calculated at the current rate of a Sergeant s pay (as indexed) and not at their current civilian salary Normal weekly earnings for part-time reservists Reservists are compensated for both the loss of civilian earnings and the loss of Reserve Income. Incapacity payments for civilian earnings are assessed as taxable income, while incapacity payments for Reserve earnings are assessed as non-taxable. This is because Reserve Force earning is exempt from income tax. Basis of calculation for Reserves normal weekly earning If the client is eligible for weekly compensation payments, the normal weekly earnings figure used to calculate the entitlement will depend upon the type of Reserve service they were on at the time of the injury or illness. Reserve Force continuous full time service: If at the time of a compensable injury or illness they were on continuous full time service, the salary for compensation purposes would be the military salary plus any taxable allowances they were paid prior to the injury or illness. Reserve Force part time service: If at the time of a compensable injury or illness the client was on part time service, the salary for compensation purposes would be the military salary and the normal weekly civilian salary (if applicable) prior to the injury or illness. Reserve Force ready reserve: the amount payable to a Ready Reservist is calculated on the same manner as for other Reservist, as shown above. That is, the salary for compensation purposes would depend upon whether they were on part time or continuous full time service at the time of the injury or illness. Compensation for reserve members... MCS04 This fact sheet explains when members of the Australian Defence Force Reserves are covered for compensation purposes and also explains the types of compensation benefits that are available in the event of injury, disease or illness that occurred before 1 July 2004 and was due to Reserve service. 4-17

18 Pension Officer November 2009: Repatriation Handbook Ability to earn (AE) Ability to Earn is the amount a client is able to earn in suitable employment, or the amount they have actually earned from any employment, whichever is the greater. Suitable employment is employment which is suitable for the client in regards to their age, experience, training, language and other skills, suitability for retraining or rehabilitation, and that is reasonably accessible. Ability to earn can be based on deemed earnings. Clients may be actually working or may be assessed as having the ability to earn in an occupation suitable to their accepted condition. Actual earnings or the ability to earn in an occupation are taken into consideration when entitlements to incapacity payments are assessed. Being deemed able to earn can affect the client s incapacity payments whether they are working or not. For example a client has been assessed as having skills and qualifications and experience to gain suitable employment but for reasons not related to the accepted condition, he is not employed. His Incapacity payments would be calculated using the amount he would be deemed to have earned had he been in employment. 5.4 Superannuation and Calculating payments There are two ways to calculate Incapacity Payments depending on whether the client receives Superannuation pension or not. Without superannuation For the first 45 weeks of incapacity, the formula for calculating payments is based on 100% of normal weekly earnings LESS any ability to earn component. If the client is unable to work at all as a result of the accepted condition there will be no ability to earn component to deduct from the NWE. Note that this 45 week period includes any time off for the accepted condition whilst serving. After the completion of the 45 week period, incapacity payments are based on 75% of NWE if the client is still totally incapacitated for work. After the 45 week period, there is a provision to increase the percentage of NEW on which incapacity payments are based for clients who return to work for even a small number of hours (see 5.6). With superannuation The impact of any Commonwealth funded superannuation payments received is that they reduce the amount of compensation payable. 4-18

19 November 2009: Repatriation Handbook Pension Officer Superannuation lump sums will also affect incapacity payments. The employer s portion of the weekly equivalent of the lump sum is deducted when calculating the incapacity payment. Note: The RCG must be informed if the client receives any form of superannuation payment. 5.5 Step Up formula After the completion of the 45 week maximum rate period, the percentage of NWE used to calculate incapacity payments increases depending on the number of hours the client is able to work. This may have the effect of increasing the client s compensation. Factors which affect the application of the step up formula include: The number of hours worked The number of hours the client is cleared for The weekly income earned. The step up formula is very complex so please contact the RCG for advice on entitlements of individual clients. 5.6 Redemption The conditions for eligibility for Redemption of incapacity payments are that the degree of incapacity must be unlikely to change, and the client must be receiving less than the statutory amount. Generally, the RCG delegate will determine eligibility for redemption entitlement. However, clients who were in receipt of incapacity payment prior to 1 st of December 1988 (the date when SRCA commenced) are required to apply in writing. The RCG will require medical evidence, usually from the client s treating specialist, that the degree of incapacity will not change in the future 5.7 Medical Discharge Where an ADF member is discharged medically unfit as a result of an accepted condition and is not employed after discharge, they are entitled to incapacity payments for four weeks from the date of discharge. There is no medical certificate required for the first four weeks. At the end of the four weeks if the client wishes to continue to receive on-going incapacity payments, a Comcare or Workcover Certificate must be submitted. 4-19

20 Pension Officer November 2009: Repatriation Handbook This certificate must state whether the client is totally unfit, or fit for suitable duties and preferably state any restrictions the client has. If the client s medical certificate states that they are fit for suitable duties they are referred to the RCG Rehabilitation section for assessment for vocational rehabilitation which is training for suitable employment. While the client is participating in an RCG vocational rehabilitation program they are entitled to receive incapacity payments for the duration of the program. No medical certificate is necessary whilst on the program. 5.8 Medical Discharge Interim Payments Eligible clients can elect to receive interim incapacity payments while the RCG is waiting for required documentation to full entitlements. When the client applies for incapacity payments, contact will be made by the RCG either by telephone or in writing, to advise clients of the process and the required documentation. Clients are advised that incapacity payments cannot be fully calculated until all required documentation is received. This can be subject to lengthy delays due to the ComSuper process. In this circumstance the client may elect to receive interim incapacity payments at a statutory rate. Clients who are facing financial hardship should be advised to apply for interim payments. An application for interim payments is sent to the client along with a tax file number declaration form and a request to supply banking details. When all the required information is received to correctly calculate the incapacity entitlement, the payment will be updated and any arrears due to the client will be paid. Should any overpayment to the client be indicated, they must also be repaid. The payment of the interim Incapacity Benefit at the statutory level is to avoid such overpayments. Note that under an amendment to section 5 of SRCA dated 9 December 2008, the definition of spouse now includes a de facto relationship with a person of the same sex. This means that if a client in a same sex relationship is receiving or entitled to interim payments, from December these payments may need to be increased to include the statutory amount for a dependent partner. Medical Discharge... MCS05 This fact sheet explains that you may be entitled to benefits under the Safety, Rehabilitation and Compensation Act 1988 (SRCA) if you are discharged medically unfit and the injury or medical condition for which you are being discharged is due to your service in the Australian Defence Force (ADF). 4-20

21 November 2009: Repatriation Handbook Pension Officer 5.9 When are incapacity payments NOT payable? Payments are stopped at the age of 65, as this is the age most people retire, so as a result the client would be seen as no longer incurring any loss of income. There are exceptions to the age rule for some clients who were in receipt of payments on the 1st of December 1988 from entitlements prior to the current SRCA, and for clients who were injured after their 63rd birthday. Clients who are affected by this will be contacted by the RCG 12 months prior to the 65th birthday to advise them if they will continue to be entitled to incapacity payments. Payments also stop if the client has been convicted of an offence and is imprisoned. The payments will cease for the time the client is in goal Changes to Pay after Injury Clients will still receive military pay rises if still serving. This generally includes serving in the part time reserves. Where an employee is no longer employed by the Commonwealth, the Normal Weekly Earnings are indexed on the 1st of July each year by the Wage Price Index. This is developed by the Australian Bureau of Statistics and is a measure of movements in hourly wage and salary rates. If the client is injured in recruit or initial employment training, incapacity payments are paid to reflect progression through the training periods. This provision is known as career progression. However, prospective promotions are not compensated for Allowances If a client loses an allowance due to their accepted condition, then entitlement may exist for compensation to be paid for the lost allowance. The client must have been in receipt of the allowance, and had that allowance reduced or ceased as a result of their accepted condition. One example is a client who was receiving Sea-Going Allowance and had their sea posting terminated due to their accepted condition. As they were due to receive the allowance for the length of their posting, liability may exist to pay the allowance to the client till their posting was due to cease. 4-21

22 Pension Officer November 2009: Repatriation Handbook There are two types of allowances for which compensation may be paid: Skills and Qualifications Allowances Skills and Qualification allowances are those paid to the client for attaining a skill through completion of training. Examples of skills and qualification allowances are; First Aid Allowance Special Air Service Allowance Compensation for Skills and Qualification Allowances is generally payable for the period that the client has a loss of income. Disability Allowances Disability allowances are paid for experiencing uncomfortable working conditions and are paid for the period of deployment. Compensation paid in respect of these allowances is paid for the period for which the client would have been in receipt of them. Examples of disability allowances are: Seagoing allowance Clearance diver allowance International campaign allowance (generally not taxable) Allowances that are NOT compensable Examples of allowances which, if lost, would not be compensated for include: maintenance allowance Annual leave bonus Travel allowance Meal allowance Uniform Attendance allowance Tropical clothing allowance As payments in respect of allowances can be a complex issue, it is advisable to contact the RCG to clarify an individual s entitlement Lodging a Claim for Incapacity Payments In the new D2020 forms, there is a section where the types of benefits the client wishes to apply for can be indicated. The RCG will proceed with the administration of the appropriate paperwork if the original claim for compensation is successful. Where claims have been lodged on older D2020 forms, the RCG will send a Benefit Election Form to the client with the letter advising them liability has been accepted for their condition. If the Incapacity Payment is requested much later than the date of liability, the application can be made in writing by either the client or their representative. 4-22

23 November 2009: Repatriation Handbook Pension Officer 5.13 Supporting Evidence Supporting evidence required will vary depending on the circumstances of each claim. This may include, but is not limited to, the following: 1. Medical Discharge Medical discharge evidence may include the following documents: Discharge signal this will state that the client is a medical discharge applicant Final Medical Board Examination results Minute from the Medical Employment classification Review Board (MECRB) Discharge certificate These are documents that are generally issued directly to discharging ADF personnel. 2. ComSuper letter detailing personal classification ComSuper issues a letter to clients who are applying for a superannuation pension. If the client is receiving a superannuation pension, this may affect the amount of weekly incapacity payments. 3. Employment history (eg Pay slips) These are generally required for clients who have been discharged for several years. These can include payslips, ATO assessments, written confirmation from Centrelink of payments received and employment separation certificate. 4. Medical certificates A Comcare or Workcover medical certificate is needed outlining the medical reasons for incapacity and the period of incapacity. The certificate should be current and not retrospective. It should state employment restrictions. If the client wishes to claim retrospective incapacity payments, he or she will need to supply a report from their treating doctor. The report should state how long the client has been treated and indicate when the client has been unfit to work for a period in the past. 5. Evidence of incapacity Details of the medical condition that is causing the incapacity. Comcare or Workcover certificates are preferred. 4-23

24 Pension Officer November 2009: Repatriation Handbook 6 Military Rehabilitation Military rehabilitation is a claims management strategy that seeks to reduce the person s reliance on compensation payments and/or/ to minimise the physical and social impacts of service related disabilities. There are two types of rehabilitation: Vocational rehabilitation where the aim is to return to work Non-vocational rehabilitation where the aim is to improve the quality of life and independence. 6.1 Target Groups Where medical discharge is imminent or recent Where the medical diagnosis/prognosis is uncertain Where there have been long periods of incapacity or restriction of duties Where there are permanently disabling or traumatic injuries. The MRCC has the power to suspend the right to compensation for failure to undertake a rehabilitation program. 6.2 Order of Preferred Vocational Rehabilitation Outcomes In approving vocational rehabilitation programs, the MRCC is aiming to achieve one of the following outcomes (listed in order of preference): Same job/same workplace Modified job/same workplace Different job/same workplace Same or modified job/different workplace Different job/different workplace While Defence has a legislative obligation to carry out rehabilitation, once a person has discharged from the ADF, the fourth and fifth dot points are the most likely outcomes. 6.3 Vocational Programs Vocational programs approved by the MRCC include: Work trials and short term skills upgrade Recognition of prior skills and employability. 4-24

25 November 2009: Repatriation Handbook Pension Officer Vocational Rehabilitation... MCS12 This factsheet provides an outline of the process and services available for members of the ADF to return to, or remain in, suitable work. 6.4 Transition Management When members are being medically discharged from the ADF, they will normally pass through the Transition Management Service (TMS) process and the TMS coordinator may refer the member for rehabilitation assistance. This will be in addition to the member s normal ADF medical discharge entitlements. The transitional management process occurs over four phases: 6.5 Other Services 1. Pre-case management Prior to discharge, TMS will initiate contact with the member to discuss and complete an initial needs assessment. 2. Transition needs management For members who elect to use the TMS, a case manager is assigned to assist the member in developing and planning their transitional needs and goals. From this conference, a Transition Action Plan and Checklist is created and implemented. Progress is monitored with assistance provided for any delivery or referral of services. 3. Closure A final interview is conducted for the evaluation and communication outcomes and a Final Case Report is sent to Defence. 4. Post-discharge follow up Member is contacted for a final evaluation of the Transition Action plan and associated outcomes. Status is recorded with a Final Case Report being sent to Defence Attendant care benefit Attendant care benefits are payable to carers or other persons who are experienced in providing attendant or personal care services to disabled people. The benefit provides for assistance with activities of daily living such as standing, moving, feeding and self care. 4-25

26 Pension Officer November 2009: Repatriation Handbook Attendant Care... MRC41 This Factsheet explains attendant care services that may be available to members and former members of the Australian Defence Force (ADF) whose claims for compensation have been accepted under the Safety, Rehabilitation and Compensation Act 1988 (SRCA) OR under the Military Rehabilitation and Compensation Act 2004 (MRCA) Household services Household services are those services which are required for the proper running and maintenance of a household and may include cooking, cleaning, laundry, ironing, lawn-mowing and gardening. Requests for any other similar services can also be considered. Home maintenance services such as painting, decorating, repairs, plumbing and electrical work are not covered. Household Services... MRC42 This Factsheet explains household services that may be available to you if you have an accepted claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (SRCA) OR the Military, Rehabilitation and Compensation Act 2004 (MRCA). 7 Permanent Impairment Lump sum compensation is payable if a current or former member suffers a permanent impairment as a result of a service related condition. A number of criteria must be established before payment can be made: The condition must be permanent meaning the condition is likely to continue indefinitely. The condition must have resulted in impairment meaning the person has suffered a loss, the loss of use of, or the damage or malfunction of any part of the body or of any bodily system or function or part of that system or function. The degree of impairment must be at least 10% whole person impairment as assessed on the relevant table of the Guide to Assessment of the Degree of Permanent Impairment. Exceptions are fingers, toes, taste, smell and hearing loss. In the case of fingers, toes, taste and smell, impairments incurred post 1 st December 1988 that result in less than 10% whole person impairment attract lump sum payments. In the case of hearing loss, impairments incurred post 1 st October 2001 that result in a minimum of 5% hearing loss which equals 2.5% whole person impairment attract lump sum payments. 4-26

27 November 2009: Repatriation Handbook Pension Officer 7.1 What is Permanent Impairment? Impairment The loss, the loss of use, the damage or malfunction of any part of the body or body system. Permanent An impairment that is unlikely to improve following medical treatment or through the passage of time. The impairment is stabilised and is not likely to change. An impairment that is likely to change in not considered permanent. For example, where a client is required to undergo medical treatment such as surgery and post-operative treatment and that treatment may improve their accepted condition, they are not considered to be suffering a permanent impairment. 7.2 How are Lump Sum Payments Calculated? Lump sum payments are calculated in accordance with the degree of whole person impairment. Reference is made to the Guide to the Assessment of the Degree of Permanent Impairment. The Permanent Impairment guide defines the concept of permanent impairment. Impairment relates to the health and well being of a client and includes anatomical loss or abnormality, physiological and psychological abnormalities. Lump Sum payments comprise two amounts, the first being a payment in respect of the whole person impairment (a medical assessment) and the second amount being in respect of the non-economic loss. The Guide comprises two parts: Part A is used to assess the degree of whole person impairment. Part B is used to assess the degree of non-economic loss Whole Person Impairment The evaluation of the whole person impairment is a medical appraisal of the nature and extent of the effect of an injury or disease on a person s functional capacity and on the activities of daily living. The Guide includes detailed descriptions of impairments categorised by body system and expresses the extent of each impairment as a percentage value of the functional capacity of a normal healthy person. Thus a percentage value can be assigned to a person s impairment by reference to the relevant description in the Guide. For any payment to be made in respect of permanent impairment, the degree of whole person impairment must be at least 10%. Some impairments are excepted from this rule. Specifically, those relating to loss or injury to a finger, toe, or the loss of the sense of smell, taste or hearing. In these cases a payment can be made for whole person impairment of a degree less than 10%. 4-27