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

28 Pension Officer November 2009: Repatriation Handbook Non-economic Loss Lump sum payments are also payable in respect of Non-economic Loss. NEL is loss or damage of a non-economic kind suffered by the person such as, pain and suffering, a loss of expectation of life, or a loss of the amenities or enjoyment of life. If a lump sum is awarded for whole person impairment then the client is also entitled to a non-economic loss component. This amount cannot be paid separately as it forms a component part of the total lump sum payment. It is not possible, therefore, to compensate for the effects of pain and suffering alone. Non-economic loss can only be assessed in conjunction with the permanent impairment lump sum for whole person impairment. If there is no lump sum payable for whole person impairment, then there is no entitlement to a lump sum in respect for the non-economic loss. The degree of non-economic loss is assessed in accordance with several components; Pain When we assess the degree of pain suffered we are looking at permanent physical pain only, meaning that we do not consider temporary pain. Suffering Suffering is the mental distress caused by the condition. It includes emotional symptoms such as grief, anguish, fear, frustration, humiliation, embarrassment, anxiety, depression, etc. Loss of Mobility Loss of mobility concerns the person s ability to move around in his or her environment. Social Relationships Social relationships concern the person s capacity to engage in the usual social and personal relationships. Recreation and Leisure Activities This concerns the person s ability to maintain customary recreational and leisure pursuits. Other Losses Other losses concern losses of a non-economic nature that are not adequately covered by the previous components. Factors that may be considered here are dependence on life supporting machinery, specialised diets or climatic features that may affect the client. For 4-28

29 November 2009: Repatriation Handbook Pension Officer example, in the case of quadriplegics who are unable to self-regulate their own body temperature. Loss of Expectation of Life This is used where the client may experience reduced life expectancy as a result of their accepted condition. Loss can be assessed from 1 to 20 years. 7.3 The Amount Payable The amount payable is calculated as a percentage of a statutory maximum amount for both injury and non-economic loss. These amounts are adjusted in line with the Consumer Price Index on the 1 st of July annually. For current maximum amounts contact the RCG. The percentage used is taken from the tables in the Permanent Impairment Guide. For example, if a client were assessed as 20% whole person impairment, they would be entitled to 20% of the statutory maximum amount. The client would also receive an additional amount for the non-economic loss based on the scores attributed under each component from the Non-Economic Loss Questionnaire. The way in which non-economic loss is calculated is very complex, so if you have any queries about this when dealing with a client, contact the RCG and discuss it with the claims assessor. Permanent Impairment... MCS07 This fact sheet explains the circumstances under which it is possible for the Department of Veterans Affairs (DVA) to award lump sum compensation under the Safety, Rehabilitation and Compensation Act 1988 (SRCA) for permanent whole person impairment suffered by members and former members of the Australian Defence Force (ADF) who sustained injury or disease as a result of their service on or before 30 June It also indicates the maximum amounts of compensation which are payable under the SRCA. 7.4 Compensation Claim for Permanent Impairment Clients may request payment of compensation for permanent impairment at any time. Usually this is done through completion of the appropriate sections of the benefit election form sent out with the acceptance of liability letter. Claims can also be made by written request or by ticking the relevant box in part 8 of the Claim for Compensation and rehabilitation D Determining permanent impairment Upon receipt of the claim for Permanent Impairment, the RCG Claims Assessor will make one of three decisions: 4-29

30 Pension Officer November 2009: Repatriation Handbook 1. Defer Claim If from the information obtained on the Claim Form it is clear that the client s condition is not stable, and/or further medical treatment is required, and/or active treatment is not resolved, the RCG Claims Assessor will defer the claim. 2. Disallow Claim Where sufficient medical evidence is held on file or submitted with the claim which indicates the client clearly has no entitlement to permanent impairment, the claim will be disallowed. 3. Investigate Further Where it is clear that the person may indeed suffer a permanent impairment, the claim is investigated further Further Investigation Where it is determined that a permanent impairment may exist, the Claims Assessor will make arrangements to obtain further medical evidence. This will often involve the client having to see an independent medical specialist or their own treating specialist. You and your client should be notified of the details of these appointments. If the client is unable to attend the scheduled appointment, you or they must notify the Department immediately, as there are cancellation fees should the appointment be cancelled within 3 days of the original date scheduled. These fees will often be passed onto the client should the Department not be notified in time, except where special or unforeseen circumstances arise. At the appointment the specialist will usually be required to physically examine the client in order to assess the degree of whole person impairment. The specialist will be provided with the relevant assessment criteria for the client s accepted condition and all the relevant medical information relating to the accepted condition held on the RCG file Accepting permanent impairments Where the available evidence confirms that the client is suffering a permanent impairment and the degree of whole person impairment is such that a payment can be made, the process for acceptance is as follows; 1. Letter of Offer If the client s accepted condition has resulted in a compensable level of permanent impairment, a letter of offer will be sent to the client. This letter will specify: The decision How much the client will receive How this amount was determined, including details of the medical evidence 4-30

31 November 2009: Repatriation Handbook Pension Officer The effect of the payment on any disability pension the client may be in receipt of under the VEA. 2. Section 45 Election Form The letter will also include the S45 Election Form. This form represents the client s formal acceptance of the offer. The client has one of two alternatives at this stage, they can accept the offer by completing the S45 Election Form, or they can refuse the offer and sue the Commonwealth. The letter also advises the client that if they decide to sue the Commonwealth, compensation will not be paid to them under the SRCA and that the maximum amount that may be awarded to them if they are successful is limited by legislation ($110, non indexed). The Department cannot advise the client what to do, and similarly the Pension Officer should also refrain from offering advice on this matter. It has to be the client s choice of either to accept the offer, or to commence legal proceedings and sue the Commonwealth. 3. Bank Account Details Forms If the client elects to accept the offer, the client must also complete they Bank Detail Form, included as part of the letter. This information is required to enable the Department to deposit the lump sum in the correct bank account. 4. Disability Pension Clearance Once the S45 Election Form is returned, the final calculation of any reductions to any disability pension is made. Overpayments may arise because of the offsetting affect of the lump sum on disability pensions. Furthermore, if the client has an overpayment of Incapacity payments, any outstanding amounts may be recovered from the Permanent Impairment lump sum. 5. Formal Determination When the RCG has the completed S45 Election Form, the Bank Account Details Form and the DP Clearance, and the final amount has been calculated, a formal letter of Determination is sent to the client. This letter will contain advice about any overpayments, and the client s right or appeal. 6. Permanent Impairment Lump Sum The actual payment of the Permanent Impairment Lump Sum is required by the Act to be paid within 30 days of the date of the letter. In reality, it is generally paid sooner than this but should the payment be longer than the 30 days the client will receive interest on the amount. 4-31

32 Pension Officer November 2009: Repatriation Handbook 7.5 When is a Permanent Impairment Claim Disallowed? A claim will be disallowed when medical evidence confirms that the condition is not of permanent nature. That is, the medical opinion is that the condition will get better, or cease in time. Similarly, if the degree of whole person impairment is not at a level which compensation is paid (10%), the claim will be disallowed. 7.6 Interim Payment In some cases the client will have to undergo further treatment. At the time of assessment it may be unclear what the degree of whole person impairment will be once the treatment is complete. In those cases where it is clear that even with further treatment the degree of whole person impairment will be at least 10% following the treatment, an interim payment can be made. The client will be offered the equivalent amount for the degree of whole person impairment that the claims assessor is reasonably satisfied they will retain following the treatment. The assessment of non-economic loss will not be included in any interim payment. A final assessment including the non-economic loss will be made when the treatment is complete and the client will then be paid any difference. 7.7 Additional Entitlements Severe Injury Adjustment Benefits Following the Black Hawk accident in 1996, the Government introduced further compensation for those clients who have suffered severe injuries. Severe injury adjustment benefits may be payable when the client is medically assessed as having an 80% or more whole person impairment. Types of injuries that will attract this level of whole person impairment can include quadriplegia, paraplegia or total blindness. The client does not have to apply for these benefits. When a client is assessed as having 80% whole person impairment, the claim assessor will automatically assess their entitlement to these additional benefits. The Permanent Impairment lump sum may be topped up and an additional amount is paid for each child. 7.8 Further Lump Sum Payments Where a client has received a previous determination of a Permanent Impairment claim and their degree of whole person impairment subsequently increases by 10%, they may request a reassessment of their accepted condition to see if an additional lump sum is payable. 4-32

33 November 2009: Repatriation Handbook Pension Officer This is in spite of the fact they may have already received a lump sum payout in respect of their accepted condition. For example:- A client received 10% under the relevant table 2 years ago and today their degree of whole person impairment is assessed at 20%. The client can apply for a further lump sum compensation and will in all likelihood receive an additional sum the their impairment. The amount previously paid will be deducted from the calculated amount payable today. Similarly, if the claim was disallowed in the past because the degree of impairments was not 10%, if the condition has deteriorated to the point where it would now meet the required threshold they, or their representative, can ask for the case to be reassessed under the new conditions. 7.9 Multiple Impairments Arising from One Incident A recent High Court decision (Canute) has clarified that where a service related incident results in a number of injuries, each injury is assessed as a separate injury, each of which must satisfy the required threshold of 10% degree of impairment (excluding those conditions outlined in sub sections 24(7A) and 24(8) of the SRCA: hearing, fingers, toes, taste and smell). Note that separate non-economic loss calculations must also be made for each condition. For example, in a motor vehicle accident where injuries are sustained to the left ankle, right wrist and back, each injury must now be assessed as a separate injury Date of Permanency The date of permanency is important in establishing which Act the impairment is to be assessed under and determines what legislation the client s case is determined in accordance with. The date of permanency is the date the client suffered the permanent damage as a result of the accepted condition. The date can be the date of injury or when the client first presented for treatment for the accepted condition. It can also be the date of surgical intervention (for example, the date on which a client underwent a total knee replacement). Impairments that are permanent on or after the 1 st of December 1988 are assessed in accordance with the provisions of the SRCA Old Acts 1930 and 1971 and Permanent Impairment If a condition is assessed as permanent prior to 1 st December 1988, depending on the date, the condition will be assessed under either the 1930 Act or the 1971 Act. 4-33

34 Pension Officer November 2009: Repatriation Handbook If the impairment became permanent after 1 st September 1971 and before the 1 st December 1988, the provisions of the 1971 Act apply. If the impairment became permanent on or after 3 rd January 1949 and before 1 st September 1971, the provisions of the 1930 Act apply. If the client s condition is assessed under either of these Acts, payment can only be made for those conditions which are listed under the Table of Maims. While the Table of Maims in an assessment tool similar to the Permanent Impairment Guide, the assessment under the table is made in terms of loss of efficient use. There are two conditions for which no lump sum payments are allowed, back conditions and psychiatric conditions. Payments under the earlier acts are calculated as a percentage of loss of efficient use against the rates of compensation applicable to the Table of Maims. Loss of efficient use relates to the loss of functional use of the injured body part for both employment and general purposes. A major difference between these previous acts and the current act is that there is no minimum impairment percentage required. Also, there is no provision for the payment of a non-economic loss component Permanent Impairment Claims when a Client is Deceased If a client has made a claim for a permanent impairment lump sum prior to their death, but dies prior to the claim being resolved, the claim will continue and will be determined. Once the claim is lodged the client s death does not prevent the claim being determined. However, if the client dies prior to determination, the lump sum is paid in respect of the permanent impairment injury only, the act does not provide for a noneconomic loss payment to be made in these circumstances. If the client has not applied for a lump sum payment in respect of his condition prior to his death, there can be no claim retrospectively. 8 Injuries Resulting in Death Where a serving or former ADF member dies as a result of a work related injury or disease, compensation may be payable to the member s dependants. 8.1 Death Benefits Death benefits are payable to those dependants who are wholly or partly dependent. 4-34

35 November 2009: Repatriation Handbook Pension Officer Dependent means dependent for economic support. The spouse and prescribed child of the deceased are considered wholly dependent. Even if the spouse is working, he/she is considered wholly dependent and eligible for death benefits if the claim is accepted. 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 amendment applies to claims arising from deaths which occurred on or after 10 December 2008 where there is a surviving partner of the same sex. If a person dies without leaving dependants, compensation is not payable in respect of the injury or disease. As a direct result of the Black Hawk accident, a Defence Determination under the Defence Act of 1903 was handed down, which provides additional death benefits such as lump sums for each child. 8.2 Who is Eligible to Claim The spouse, child, parent, step-parent, parent-in-law, grandparent, stepchildren, grandchildren, half-brother or half-sister. These must be dependants of the member, that is wholly, or partially economically dependent on the member at the time of his death. 8.3 Lodging the Claim The information given in the claim should be as complete as possible so that the claim is not delayed. The information should contain particulars about the deceased, cause of death and details of dependants. The dependant making the claim must sign the declaration at the bottom of the claim. If you need a Claim for Compensation in Respect of the Death of an Employee, (AB168A) contact the RCG, or download the form from the Internet at: and click on ADF issues. Documentation required Standard requirements include the death certificate, marriage certificate, birth certificate/s and any supporting medical documentation. Supporting medical documentation should be obtained from the treating specialist and should indicate the cause of death and provide a link with the deceased member s condition and his service. In some instances, such as suicide and road accidents, police reports and coroners reports may also be required. 4-35

36 Pension Officer November 2009: Repatriation Handbook 8.4 Lump Sum Payment/s The lump sum is an indexed amount payable to the dependent/s. It should be remembered that the lump sum payable is the one that would have been payable at the time of the member s death. Payment of a lump sum in respect of a death of a member may affect any war widow or orphan s pension paid or payable under the VEA. If there is only a surviving spouse, he or she receives 100% of the benefit. If there is a spouse and one dependent child, 90% goes to the spouse, and 10% to the child. If there are two to five children, they each get 5% and the remainder goes to the spouse. If there are more than five dependent children, the spouse gets 75% and the remaining 25% of the benefit is divided equally among the children. There is an additional death benefit under the Defence Act 1903 for compensable deaths after 7 th April 1994 that tops up the SRCA amount and each dependent child receives an additional lump sum. These amounts are indexed from time to time. Additional death benefits do not affect any pension paid under the VEA. The client will need to return the proforma advising whether they wish to receive the payment. 8.5 Weekly Payments for Each Dependent Child An indexed amount is payable for each dependent child until the age of 16, or are full time students under the age of 25. Details of the exact amount are available from the RCG. 8.6 What if there are no Dependants? Compensation is not payable if the member dies without leaving dependants. Parents, unless they are economically dependent on the member, are not automatically deemed dependants of single members. 8.7 Funeral Expenses Once the claim for compensation in respect of the death of a member is accepted, payment is made towards the cost of the funeral, up to a legislated amount. Funeral expenses may be payable even if there are no dependents. 4-36

37 November 2009: Repatriation Handbook Pension Officer Documentation required to claim Funeral Expenses A written claim and original receipts or invoices of the funeral costs are required along with the following relevant supporting documents; marriage certificate, death certificate, birth certificate/s and any autopsy and police reports if relevant. Benefits under the Safety, Rehabilitation and Compensation Act 1988 and the Defence Act MCS06 This fact sheet explains the entitlements available under the Safety, Rehabilitation and Compensation Act 1988 (SRCA) and the Defence Act 1903 for injuries at any time up to and including 30 June Compensation and Disability Pension Offsetting The principle behind compensation offsetting is that a person should not be compensated twice for the same condition. 9.1 The Effects of Receiving a Lump Sum Payment The permanent impairment lump sum has no effect on any other SRCA benefits. Permanent impairment lump sums are not taxable. 9.2 Disability Pension Offsetting Offsetting only affects that part of a Disability Pension paid for the same incapacity for which the other compensation is paid. Compensation offsetting is an extremely complicated topic and at all times Pension Officers are requested to contact the Department for further information on how the offsetting will affect individual clients. If a client is receiving a Disability Pension for the same incapacity for which the lump sum payment is made, the DP area will convert the lump sum to a fortnightly figure which will be payable for life. Under section 25A of the VEA, Special Rate Pension, Temporary Incapacity Allowance and Loss of Earning Allowance will be offset against any permanent impairment payments paid under SRCA. Reference is made to Life Expectancy Tables in order to calculate this amount. The fortnightly calculated amount is deemed to have started on the same day as the granting of the Disability Pension. This means that if a Lump Sum Payment is made after the granting of a Disability Pension, all or some of the DP already paid will become an 4-37

38 Pension Officer November 2009: Repatriation Handbook overpayment that will be deducted from the lump sum prior to payment to the client. If the DP is granted after the receipt of a lump sum payment, the amount of DP will be calculated as previously with the offsetting commencing on the date of the DP, therefore overpayments are unlikely. Compensation offsetting does not affect entitlement to VEA treatment cards. White or Gold Repatriation Health cards are retained. 10 Reconsiderations and Appeals 10.1 Reconsiderations 10.2 Appeals If a client disagrees with a decision they may seek a reconsideration if; They are not satisfied with the reasons given for rejecting the claim, Or, they have more evidence to support their claim. The client may ask for a reconsideration of any decision that relates to their claim including, initial liability, permanent impairment, incapacity payments, medical expenses, household and rehabilitation services. An RCG officer who was not involved in the original decision must undertake reconsideration of the decision. This ensures that the client receives an impartial assessment of their claim. The request must be in writing, must set out the reasons for the request and must be received in writing 30 days after receipt of the original determination, and the reasons for seeking the reconsideration must be stated. When the reconsideration is complete, the client will receive the determination in writing which will set out the reasons for the decision. If the client is not satisfied with the reconsidered decision, they can then appeal to the Administrative Appeals Tribunal. An application for review by the AAT must be lodged within 60 days of receiving written advice from the RCG of the determination. Information about the Administrative Appeals Tribunal is included with the reconsideration decision, and further advise on steps to take if you wish to lodge an appeal can be obtained from the Registrar of the AAT. 4-38

39 November 2009: Repatriation Handbook Pension Officer 10.3 Federal Court Finally they can appeal to the Federal Court, however cases can only be taken to the Federal Court on a point of law, not because the client is dissatisfied with the outcome. Your right to have a decision reviewed... MCS14 This fact sheet is a guide for members and former members of the Australian Defence Force (ADF) who wish to request reconsideration of decisions made under the Safety, Rehabilitation and Compensation Act 1988 (SRCA). 11 Medical Expenses and Other Benefits When a client has a medical condition that has been accepted as being service related, the MRCC will pay the costs of reasonable medical treatment for this condition. REASONABLE: Payment will be made for medical expenses which are seen to be reasonable. The assessment of what is reasonable treatment may vary in each case depending on a number of factors, such as the nature of the injury, and the recommendations of treatment providers What is Medical Treatment? Medical treatment includes : Medical or surgical treatment that has been approved by or under the supervision of a legally qualified medical practitioner. Therapeutic treatment obtained at the direction of a legally qualified medical practitioner. Dental treatment by, or under the supervision of, a legally qualified dentist. Dentists are given the same status as a medical practitioner. An examination, test or analysis carried out at the request or direction of a medical practitioner or dentist and the provision of a report from that examination (for example, X-ray, MRI s, blood test, etc.). The supply, replacement or repair of an artificial limb or other artificial substitute or of a medical, surgical or other similar aid or appliance. Treatment and maintenance as a patient at a hospital. Costs covered include payment for a shared ward and theatre costs but not for phone and newspapers. Hospitalisation must be for the accepted condition and requires pre-approval by the MRCC. 4-39

40 Pension Officer November 2009: Repatriation Handbook Nursing care and the provision of medicines, medical and surgical supplies and curative apparatus. Curative apparatus includes orthotics, hearing aids etc. According to the SRCA all medical treatment must be provided by practitioners legally qualified and registered under the law of the relevant State or Territory. In some instances prior approval from the MRCC may be required for some treatments Therapeutic Treatment Therapeutic treatment includes treatments such as: Chiropractic Massage therapy Physiotherapy Osteopathy For all therapeutic treatments a valid referral is required from the treating doctor. The treatment must be for the management of the condition. Treatments other than those listed above may be requested by the treating doctor and will be considered and, if deemed reasonable and necessary the treatment expenses may be covered by the MRCC Prosthetics The Act provides for the supply and replacement of artificial limbs or other surgical aids and appliances such as a glass eye Nursing Care Nursing care can be provided in the client s residence upon request of the treating doctor for the medical management of the accepted condition, (eg. Administration of medication) Pharmaceutical Pharmaceuticals for management of the accepted condition must be prescribed by the treating doctor. This also covers other items such as medical and surgical supplies Diagnostic Testing Diagnostic testing and reporting is carried out at the request or direction of a medical practitioner or dentist. 4-40

41 November 2009: Repatriation Handbook Pension Officer 11.7 How to Request Treatment To request prior approval for medical treatment, the client should contact their treating doctor for a referral. The referral should be sent to the RCG The RCG will then contact the practitioner. When the treatment is approved, the RCG will then advise the practitioner. The treatment will be regularly reviewed. Referrals are generally valid for six months. At the end of the six month period, if the client still requires the medical treatment, they will need to obtain a new referral from their doctor Payment of Medical Accounts Accounts can be submitted for payment by: Medical Practitioners and Providers At the first attendance, the following information must be provided to the treating Doctor or Provider: the RCG File Reference Number for each accepted condition, and nature of the condition. RCG contact details and postal address Details that must be included on the account include: Valid tax invoice including Providers ABN Provider/Practitioner contact details Date of treatment Condition treated File Reference Number Pharmaceutical accounts must also contain details of the date and name of the medication dispensed. The RCG standard for the payment of accounts is within 30 days of receipt of the account. Client Reimbursement Where the client has paid for the service, the receipt/s should be submitted directly for reimbursement. Accounts and receipts must contain the same information as previously noted for medical practitioners and providers, and must be originals Travel Expenses The RCG can reimburse clients the reasonable costs for travel and accommodation required in order to obtain medical treatment. 4-41

42 Pension Officer November 2009: Repatriation Handbook The RCG will reimburse clients the reasonable costs for travel and accommodation if it sends a client for a medical examination. Travel expenses are not usually paid if, by personal choice, a client travels beyond an area where suitable medical treatment is available. (For instance, if there is suitable medical treatment available in the client s home location, but they choose to attend treatment in another location). If the client elects to travel to a provider of their own choice rather than the closest suitable provider, treatment costs will be met, but the travel costs may not be reimbursed. If the client has any concerns or queries, they should be advised to contact the RCG prior to any travel. Travel costs can only be reimbursed for medical treatment of the approved condition and that travel must exceed 50km round trip as specified in the SRCA If one doctor meets the 50km criteria but the client chooses to go to another doctor, the RCG will only pay to the nearest place of suitable treatment. Public transport costs may be reimbursed if the costs were incurred for travel to obtain reasonable medical treatment. The 50km round trip rule does not apply to public transport costs. Accommodation and associated meals costs may be paid if it is a requirement to stay overnight to obtain the medical treatment. The RCG can also pay the travel expenses if the client needs an attendant to travel with them to the medical appointment. Payment for an attendance is made if there is medical advice that the client needs someone to travel with them. Original receipts must be submitted for reimbursement of public transport, accommodation and meals. Medical Treatment... MCS09 This fact sheet explains when and how medical treatment costs can be paid under the Safety, Rehabilitation and Compensation Act 1988 (SRCA). It also explains what types of medical treatment can be paid for under the SRCA. 4-42

43 November 2009: Repatriation Handbook Pension Officer Part B Guide to the Military Rehabilitation and Compensation Act 2004 Disclaimer: This document is an unofficial explanation of the Military Rehabilitation and Compensation Act 2004 (MRCA) and is current as at November The MRCA, the case law and any instructions made by the Military Rehabilitation and Compensation Commission can overtake any comment made in this document. Users of this handbook are advised to check for updated information by referring to the MRCA Policy Manual on CLIK: Military Comp/MRCA Info/Policy Manual A set of 12 online MRCA elearning Modules is available to ESO Representatives as a learning tool. To arrange access to these modules, please contact the TIP Chair in your state. Contents 1 Introduction 1.1 Purpose of the MRCA 1.2 Commencement 1.3 Definitions Who is covered by the MRCA? Kinds of service covered by the MRCA Definitions relevant to determination of the liability issue Definitions relevant to the heads of compensation 2 Accepting liability for service injuries, diseases and deaths 2.1 Introduction 2.2 When the MRCC must accept liability for service injuries, diseases and deaths 2.3 Definitions of service injury, service disease and service death Resulted from an occurrence Arose out of, or was attributable to But for the circumstances of service 2.4 Aggravation 2.5 Journey provisions 2.6 Death from service injury or disease 2.7 Service injury, disease or death arising from medical treatment paid for by the Commonwealth 2.8 When the MRCC is prevented from accepting liability for service injuries, diseases and deaths 4-43

44 Pension Officer November 2009: Repatriation Handbook 2.9 Serious defaults or wilful acts, serious breaches of discipline and intentionally self inflicted injuries or diseases 2.10 Reasonable counselling about performance 2.11 False representations 2.12 Travel 2.13 Tobacco 3 Rehabilitation 3.1 Overview 3.2 Persons to whom the rehabilitation provisions apply 3.3 Rehabilitation authority 3.4 Rehabilitation assessment 3.5 Rehabilitation program 3.6 Power to suspend compensation payments 3.7 Payment for modification, aids and appliances related to rehabilitation 3.8 Transition management 3.9 Reconsideration and review of decisions about rehabilitation 4 Compensation for members and former members 4.1 Permanent Impairment Overview Guide for assessment of level of impairment Assessment of amount of permanent impairment compensation payable Warlike and non-warlike service v peacetime service Compensation for more than one condition Compensation where two conditions arise from different service What constitutes permanent impairment? Minimum level of impairment for which compensation is payable 4.2 Additional compensation Additional injuries or diseases Worsening of an already accepted condition Interim compensation Maximum amount of compensation payable 4.3 Date from which periodic compensation is payable Permanent impairment periodic compensation Additional periodic compensation Interim periodic compensation Permanent impairment payment choice Additional amounts for children Financial advice 4.4 Incapacity payments 4-44

45 November 2009: Repatriation Handbook Pension Officer Overview Entitlement to incapacity payments Calculation of incapacity payments Remuneration loading Incapacity payments for Reserve service Superannuation offsets Minimum earnings provision Lump sum redemption Date of effect for incapacity compensation 4.5 Special Rate Disability Pension Nature of benefit Eligibility criteria for SRDP Administrative procedures and one-time choice Financial advice Rate of SRDP Offsetting arrangements Effect of permanent impairment payments Effect of Commonwealth-funded component of superannuation Effect of VEA Disability Pension and SRCA permanent impairment payments Other matters 4.6 Other types of compensation Motor Vehicle Compensation Scheme Overview Establishment of the Motor Vehicle Compensation Scheme Eligibility criteria Type of assistance Conditions Household and Attendant Care Overview Household services Attendant care services MRCA Supplement Compensation for loss or damage to medical aids 5 Compensation for dependants 5.1 Overview 5.2 Compensation for wholly dependent partners Definition of wholly dependent partner Death benefit Making the choice Financial advice Additional death benefit Other benefits 4-45

46 Pension Officer November 2009: Repatriation Handbook Continuation of deceased member s payments 5.3 Compensation for dependants who are eligible young persons Definition of a dependant who is an eligible young person Lump sum death benefit payment Periodic payment Who receives the payment? Education assistance Other benefits Continuation of a deceased member s payments 5.4 Compensation for other dependants Eligibility criteria Compensation for funeral expenses 6 Treatment for injuries and diseases 6.1 Overview 6.2 Entitlement to treatment former members 6.3 Entitlement to health treatment eligible dependants 6.4 Entitlement to treatment overseas 6.5 Serving members 6.6 Journey and accommodation costs 6.7 Pharmaceutical allowance 6.8 Administration 6.9 Review 6.10 VEA cards for MRCA members 7 Claims 7.1 Overview 7.2 Making a claim 7.3 No time limits for claims 7.4 Who can make a claim? 7.5 Claims made by serving members 7.6 Claims after death of claimant 7.7 Investigation of a claim Collection of information Medical examinations Needs assessments 7.8 Determination of claims MRCC not bound by technicalities Standards of proof Application of the Statements of Principles Determination of MRCC overriding SoPs 8 Reconsideration and review of determinations 8.1 Overview 8.2 Notifying original determinations 8.3 Determinations that can be reconsidered or reviewed 8.4 Determinations that cannot be reconsidered or reviewed 4-46

47 November 2009: Repatriation Handbook Pension Officer 8.5 The VRB pathway 8.6 The MRCC reconsideration pathway 8.7 Legal aid for AAT applications and payment of costs 9 The Military Rehabilitation and Compensation Commission (MRCC) 9.1 Establishment 9.2 Composition 9.3 Staff 9.4 Delegations 10 Liabilities arising apart from this Act 10.1 Overview 10.2 Common law action by members and former members 10.3 Common law action by a dependant of a deceased member 10.4 Common law action against a third party 11 Miscellaneous 11.1 Overview 11.2 Indexation 11.3 Obtaining and giving information 11.4 Recovery of overpayments 11.5 Recovery of overpayment to retired persons 11.6 Special assistance 11.7 Assignment, set-off or attachment of compensations 11.8 Extraterritorial offences 11.9 Write-off or waiver of debts Payment of benefits into bank account Trustees Regulations 12. Glossary Of Terms 4-47

48 Pension Officer November 2009: Repatriation Handbook 1 Introduction 1.1 Purpose of the MRCA The Military Rehabilitation and Compensation Act 2004 (MRCA) provides treatment, rehabilitation and compensation for current and former members of the Australian Defence Force (ADF) and their dependants in respect of service rendered on or after 1 July The MRCA also sets governance, administration and reporting requirements. 1.2 Commencement The operative provisions of the MRCA commenced on 1 July 2004, a day fixed by Proclamation. The MRCA is prospective in operation and only applies to service rendered on or after the commencement day of 1 July In some cases, transitional provisions under the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004 also allow for service before the commencement day to be taken into account providing there is also service on or after commencement day. The Veterans Entitlements Act 1986 (VEA) was not repealed as a consequence of the passage of the MRCA. This means that people with compensation coverage under the MRCA remain eligible for certain other benefits that continue under the VEA, such as the service pension. It also means that people with compensation coverage under the VEA continue to be covered under the VEA for eligible service before 1 July Persons with compensation coverage under the Safety, Rehabilitation and Compensation Act 1988 (SRCA) continue to be covered by that Act for service before 1 July Definitions Who is covered by the MRCA? Current and former members of the ADF, including members of the Permanent Forces and the Reserves All current and former members of the permanent Navy, Regular Army and the permanent Air Force are covered for service rendered on or after the commencement day of 1 July Reservists on continuous full-time service and part-time service are also covered. Members of the ADF cadets Cadet instructors and cadets are covered for periods of instruction, training, performing duty and travel to and from the place of an eligible activity. Persons covered by a Ministerial determination The MRCA gives the Minister for Defence a discretion to extend coverage to a person or a class of persons who engage or have engaged in activities or who perform or have performed acts: 4-48

49 November 2009: Repatriation Handbook Pension Officer at the request or direction of the ADF; for the benefit of the ADF; or in relation to the ADF under a requirement made by or under a Commonwealth law. This provision offers the flexibility to extend coverage to philanthropic representatives and holders of honorary rank. Relevant Ministerial determinations under MRCA can be found on CLIK: Legislation/Military Rehabilitation and Compensation/MRC Determinations Kinds of service covered by the MRCA The MRCA applies to the following categories of defence service: warlike service; non-warlike service; and peacetime service. The Minister for Defence determines what service constitutes warlike or non-warlike service. Service that is not the subject of such a determination is peacetime service. Relevant Ministerial determinations under MRCA can be found on CLIK: Legislation/Military Rehabilitation and Compensation/MRC Determinations Definitions relevant to determination of the liability issue The definitions of injury and disease in the MRCA are based on the definitions found in the VEA. The definitions of service injury, service disease and service death (found in MRCA ss27 and 28) are also based on the VEA liability provisions. These definitions outline the main heads of liability which are used in deciding whether a person s injury, disease or death has the necessary relationship with service for liability to be accepted. The Repatriation Medical Authority (RMA) is defined to be the same authority as established under the VEA. The RMA s Statements of Principles (SoPs) are applied to claims for liability to determine the medical issue as to whether there is the requisite causal connection between the person s injury, disease or death and relevant service. The further operation of these definitions and the determination of liability are detailed in Section 2 of this Guide. 4-49

50 Pension Officer November 2009: Repatriation Handbook Definitions relevant to the heads of compensation Incapacity (for service and/or work) An integral concept to the assessment of incapacity payments is the person s incapacity for service or incapacity for work. These refer to an incapacity of the person to engage in ADF service or civilian work that he or she was engaged in before the incapacity. If a person was not previously engaged in work, the incapacity of the person may be assessed having regard to any work to which the person would be suited. Permanent Impairment The definition of impairment is critical to the issue of whether a person qualifies for permanent impairment compensation. It is defined by reference to the loss, the loss of the use, or the damage or malfunction, of any part of the person s body, of any bodily system or function, or of any part of such system or function. The concept of permanent impairment in the MRCA is based on the concept of permanent impairment in the SRCA. Overview... MRC 01 The fact sheet outlines the Military Rehabilitation and Compensation Scheme (MRCS) and the basic rights and entitlements to compensation and rehabilitation of permanent and reserve members and former members of the Australian Defence Force (ADF),cadets and cadet officers and instructors who are injured in the course of their duties on or after 1 July Types of MRCA Service... MRC 03 The fact sheet provides a brief description of the types of military service that are covered under the Military Rehabilitation and Compensation Act 2004 (MRCA). 2 Accepting liability for Service Injuries, Diseases and Deaths 2.1 Introduction The liability provisions in the MRCA are primarily modelled on those contained in the VEA with some additions derived from the SRCA. By using provisions modelled on or adapted from the VEA and SRCA, any relevant case law applicable to the interpretation of those provisions is intended to apply as far as possible within the context of the MRCA. The basic liability provisions are to be found in the definitions of service injury, service disease and service death found in ss27 and 28 of MRCA (Part 3 of Chapter 2). These definitions are adapted from the liability provisions contained in the VEA and describe the various connections with service that are required in order to establish the necessary relationship between a person s injury, disease or death and service. 4-50

51 November 2009: Repatriation Handbook Pension Officer Section 29 of MRCA deals with service diseases, injuries and deaths arising from Commonwealth treatment and is adapted from similar SRCA provisions. Section 30 outlines the provisions for liability arising from aggravations of signs and symptoms only of pre-existing conditions. There is no equivalent provision in either the VEA or SRCA. Note that provisions that exclude liability (for example certain claims based upon tobacco use) have been separated out from the liability provisions and placed in Part 4 of Chapter 2 of MRCA. 2.2 When the MRCC must accept liability for service injuries, diseases and deaths Part 2 of Chapter 2 of MRCA describes the interrelationship between the liability provisions set out in Part 3 and the provisions that operate to prevent the acceptance of liability (the exclusions) in Part 4. The Military Rehabilitation and Compensation Commission (MRCC) is required to accept liability only if a claim for acceptance of liability has been made and the person s injury, disease or death, is a service injury, service disease or service death, unless liability is otherwise excluded by any other effect of the MRCA. There are separate grounds of liability in respect of a service injury, disease or death arising from the consequences of medical treatment paid for by the Commonwealth. The acceptance of liability only has effect for the purposes of compensation provided in the MRCA and does not imply or mean acceptance for any purpose under any other legislation such as the VEA or the SRCA. 2.3 Definitions of service injury, service disease and service death Part 3 of Chapter 2 of MRCA contains the definitions of service injury, service disease and service death which set out the basic connections with service that are required in order to establish the necessary relationship between the person s injury, disease or death and service. Liability cannot be accepted if one of the exclusions in Part 4 of Chapter 2 applies Resulted from an occurrence An injury, disease or death is regarded as a service injury, service disease or service death if it resulted from an occurrence that happened while the person was a member rendering defence service. The relationship that is required under this provision to establish liability between the occurrence and defence service is a temporal one, that is, the occurrence must have occurred at some point of time during the rendering of defence service. 4-51

52 Pension Officer November 2009: Repatriation Handbook Arose out of, or was attributable to An injury, disease or death is regarded as a service injury, service disease or service death if it arose out of, or was attributable to any defence service rendered by the person while a member. This paragraph requires a causal relationship to be found between the defence service and the relevant condition. This means that service must be a cause of the injury or disease But for the circumstances of service An injury or disease is regarded as a service injury or service disease if, in the opinion of the MRCC: the injury was sustained due to an accident that would not have occurred; or the disease would not have been contracted; but for: the person having rendered defence service while a member; or changes in the person s environment consequent upon his or her having rendered defence service while a member. Similarly, a death is a service death if, in the opinion of the MRCC, the death was due to: an accident that would not have occurred; or a disease that would not have been contracted; but for: the person having rendered defence service while a member; or changes in the person s environment consequent upon his or her having rendered defence service while a member. The but for test requires a direct causal connection between the defence service or changes to the environment and the event (the sustaining of the injury etc). 2.4 Aggravation An injury, disease or death is a service injury, service disease or service death if it was contributed to in a material degree by, or was aggravated by, any defence service rendered by the person while a member after he or she sustained the injury or contracted the disease. 4-52

53 November 2009: Repatriation Handbook Pension Officer In situations where an aggravation is claimed, it must be established either that: the injury or disease existed while the person was rendering defence service but did not arise out of that service; or the disease or injury was in existence before the commencement of a period of defence service. Aggravation relates to a pre-existing injury or disease (that is not related to MRCA defence service) in circumstances where something occurred during MRCA defence service to make that pre-existing injury or disease worse. Most of the RMA s SoPs contain specific factors relevant to the assessment of an aggravation claim. The application of the SoPs to determine liability in relation to a claim involving an aggravation of a pre-existing disease or injury is similar to that under the VEA. However, it must be ascertained whether any claimed aggravation is: worsening due to the natural progression of the condition in these cases, there is no aggravation; or worsening due to the worsening of the underlying pathology of the condition (in these cases, the aggravation must be determined using the SoPs (if there is a SoP for the condition); or worsening only of the signs and symptoms of the underlying condition, with no worsening of the underlying pathology (in these cases, determinations are made under s30 of the MRCA and SoPs do not apply). Under MRCA, aggravation provisions only apply where the injury or disease which is aggravated by MRCA service does not itself arise from MRCA service. Therefore in aggravation cases it must be established that the onset of the (aggravated) condition was not itself caused by service. Under MRCA, an aggravation of an injury or disease is not a separate injury or disease in its own right. The entire injury or disease (or death) becomes a service injury, disease or death. However MRCA restricts some forms of compensation for aggravated injuries and diseases to the impairment resulting from the aggravation rather than impairment from the entire injury or disease: permanent impairment payments are made for the impairment resulting only from the aggravation; and incapacity payments and treatment are only provided while the effects of the aggravation persist. 4-53

54 Pension Officer November 2009: Repatriation Handbook Whereas: rehabilitation is provided for aggravated injuries and diseases, not simply for the effects of the aggravation. 2.5 Journey provisions The MRCA covers members 24 hours a day while they are serving in warlike or nonwarlike service providing the exclusionary provisions do not apply. Members rendering peacetime service are generally covered only whilst they are on duty. However, the MRCA will cover a case where the injury, disease or death resulted from an accident that occurred while the person was travelling while rendering peacetime service which was not in the course of duty: to a place for the purpose of performing duty; or away from a place of duty upon having ceased to perform duty. The focus in this provision is on the purposes of the journey. If for example, the person has an accident while travelling to a place for the purpose of performing duty, the question is whether the person was going there to perform duty or merely going there for some other reason. 2.6 Death from service injury or disease The death of a person is a service death if the injury or disease from which the person died is an injury or disease that has been determined to be a service injury or disease. The words from which require a causal connection, the issue being whether the cause was due to the service injury or disease. This issue is determined on the balance of probabilities irrespective of whether the claim involves warlike, non-warlike or peacetime service. 2.7 Service injury, disease or death arising from medical treatment paid for by the Commonwealth This is an additional head of liability adapted from the SRCA. Therefore determinations under this head of liability are not determined using the SoPs and they are made on the basis of the balance of probabilities standard of proof, regardless of the type of service involved. An injury sustained, a disease contracted is a service injury or disease if: the person receives medical treatment paid for by the Commonwealth under the MRCA in respect of an earlier service related injury or disease; and as a consequence of that treatment, the person sustains the later injury or contracts the later disease; OR 4-54

55 November 2009: Repatriation Handbook Pension Officer the person receives any treatment under the Defence Force Act 1903 regulations for an earlier disease which is not a service injury or service disease and as an unintended consequence of that treatment, the person sustains the later injury or disease. These provisions also apply to aggravations. The provisions would apply, for example, where Defence Health has paid for a serving member to have wisdom teeth removed under a general anaesthetic and, as an unintended consequence of the surgery, a nerve is damaged and the member losses their sense of taste and smell. The loss of taste or smell is compensable. The provision also applies where, as a consequence of treatment paid for by the Commonwealth under the MRCA, or under the Defence Regulations on or after 1 July 2004, the person dies. 2.8 When the MRCC is prevented from accepting liability for service injuries, diseases and deaths Part 4 of Chapter 2 sets out the circumstances where the MRCC cannot accept liability for an injury, disease or death. The exclusions apply even if the case otherwise satisfies one of the heads of liability set out in Part 3 and the relevant SoPs. The standard of proof applicable to the application of these provisions is the balance of probabilities, also known as the reasonable satisfaction standard of proof. 2.9 Serious defaults or wilful acts, serious breaches of discipline and intentionally self inflicted injuries or diseases The MRCC must not accept liability for an injury sustained, or a disease contracted, by a person if: the injury or disease resulted from the person s serious default or wilful act while a member; or the injury or disease arose from: a serious breach of discipline committed by the person while a member; or an occurrence that happened while the person was committing a serious breach of discipline while a member; or the injury or disease was intentionally self-inflicted while the person was a member. This exclusion does not apply if the injury or disease results in serious and permanent impairment. 4-55

56 Pension Officer November 2009: Repatriation Handbook An injury or disease is deemed to have resulted from a person s serious default or wilful act, if: the person consumed alcohol or took a drug other than one administered by or taken in accordance with the directions of a person authorised to administer the drug; and the injury or disease resulted from being under the influence of the alcohol or the drug. It also applies to the exclusion of aggravations etc resulting from a serious default or wilful act, except if the injury or disease results in serious and permanent impairment Reasonable counselling about performance The MRCC must not accept liability if the injury or disease resulted from: reasonable and appropriate counselling in relation to the person s performance while a member; or a failure to obtain a promotion, transfer or benefit in connection with the person s service as a member. This also applies to material contributions and aggravations False representations Liability must not be accepted if a person has made a wilful and false representation, in connection with his or her defence service or proposed defence service, that he or she did not suffer, or had not previously suffered, from that disease or injury. The exclusion also applies to claims involving aggravations and death Travel This exclusion only applies to peacetime service. Liability must not be accepted for an injury or disease resulting from an accident that occurred while the person was a member travelling on a journey that had been delayed. Compensation is possible only if the person had delayed commencing the journey for a substantial time after he or she had ceased to perform duty at that place because: the delay was for a reason connected with the performance of the person s duties; or in the circumstances of a particular case the nature of the risk of sustaining an injury, or contracting a disease, or the nature of the risk of death was not substantially changed; and the extent of that risk was not substantially increased by that delay or by anything that happened during that delay. 4-56

57 November 2009: Repatriation Handbook Pension Officer The exclusion also applies to claims involving routes that are not reasonably direct and to substantial interruptions to journeys unrelated to the travel Tobacco The MRCA provides that the MRCC must not accept liability if the injury, disease or death resulted only from the person s use of tobacco products. There is no allowance for serious impairment or death as a result of such tobacco use. The factors in the SoPs relevant to tobacco use are redundant in the MRCA. Similar exclusions were inserted into the VEA and have applied since 31 December Passive smoking is not the use of tobacco. 3 Rehabilitation 3.1 Overview The rehabilitation provisions in the MRCA reflect to a large extent those contained in the SRCA and encompass medical, vocational and psycho-social rehabilitation. The aim of rehabilitation is to maximise the potential to restore a person who has suffered impairment from a service injury or disease to their pre-injury or disease physical, psychological, vocational, educational and social capabilities. The MRCA requires that people assessed as capable of benefiting from rehabilitation participate in a rehabilitation program formulated for them. If a person refuses or fails to undergo an examination in connection with rehabilitation or to undertake a rehabilitation program without reasonable excuse, payment of compensation (but not treatment) under the MRCA may be suspended until they undergo the examination or undertake the program. People who have been assessed as unable to benefit from a vocational rehabilitation program may undertake a rehabilitation program on a voluntary basis. 3.2 Persons to whom the rehabilitation provisions apply The rehabilitation provisions in the MRCA apply to any serving member of the Permanent Forces and members of the Reserves on continuous full-time service if they are incapacitated for service or have an impairment that results from an injury or disease for which the MRCC has accepted liability. The provisions also apply to former members of the ADF, part-time reservists, cadets, cadet instructors and declared members if they are incapacitated for service or work or have an impairment because of an injury or disease for which the MRCC has accepted liability. 3.3 Rehabilitation authority The MRCA provides for two rehabilitation authorities: 4-57

58 Pension Officer November 2009: Repatriation Handbook the Service Chief of each arm of the ADF, for serving members who have not been identified for medical discharge; and the MRCC for everyone else. The functions of the rehabilitation authority are to: arrange an assessment of a person s capacity for rehabilitation; determine whether a person is to undertake rehabilitation; and arrange for a rehabilitation program to be devised for a person. The MRCA also requires the rehabilitation authority to take all reasonable steps to assist a person to find suitable work. For serving members of the Permanent Forces or full-time Reservists, the Service Chief, as the rehabilitation authority, must take all reasonable steps to assist the member to find suitable work within the Permanent Forces or Reserves as appropriate. Where a member is identified for medical discharge, the MRCC may become the rehabilitation authority. It is the responsibility of the MRCC to take all reasonable steps to assist that person in finding suitable civilian work. In all other cases, such as former members of the Permanent Forces, former full-time Reservists, former parttime Reservists, cadets or declared members, the MRCC, as the rehabilitation authority, must take all reasonable steps to assist the person to find suitable civilian work. 3.4 Rehabilitation assessment Both members and former members of the ADF can have a rehabilitation assessment arranged by a rehabilitation authority to determine their suitability for rehabilitation. The rehabilitation authority may undertake an initial assessment and further assessments of a person s capacity to undertake rehabilitation of its own initiative. The rehabilitation authority must carry out an initial assessment if the member or former member requests one. The rehabilitation authority may seek the assistance of a suitably qualified person to carry out the assessment. The rehabilitation authority may require a person to undertake an examination to enable a rehabilitation assessment to be made. The rehabilitation authority will pay for the costs of examinations it has asked the person to attend and will also pay the cost of reasonable travel and accommodation expenses associated with attending these examinations. If a person refuses or fails to undergo or obstructs an examination without a reasonable excuse, they cannot receive compensation payments under the MRCA (but will still receive treatment) until the examination takes place. Once the assessment is completed, the rehabilitation authority will make a determination as to whether the person is capable of undertaking rehabilitation and, if so, specifying the type of rehabilitation the person must undertake. The rehabilitation authority s decision must take into account such things as: 4-58

59 November 2009: Repatriation Handbook Pension Officer the report of any examination conducted to assess capacity for rehabilitation and the kinds of rehabilitation that would benefit the person; any reduction in the Commonwealth s liability to pay compensation in the future if the program is undertaken; the cost of the program; the improvement in the person s employability if the program is completed; the person s attitude to the program; and the merits of any alternative programs. Discharged members who are incapacitated for work by a service related condition may be entitled to receive incapacity payments whilst they are participating in a rehabilitation program. Reviews and rehabilitation assessments must be sensitive to the circumstances of the individual. Rehabilitation is the norm in the initial response to injury or disease but for longer term conditions, review and the frequency of review will need to have regard to the nature of the incapacity as well as the age and circumstances of the person. Protocols are available for this process. 3.5 Rehabilitation program If the rehabilitation authority decides that a member or former member is capable of undergoing rehabilitation, a rehabilitation program is formulated in consultation with the person by an approved program provider having regard to the person s particular needs and circumstances. The MRCA allows for the use of program providers approved by Comcare under the SRCA. It also allows the rehabilitation authority to appoint other approved program providers where it is satisfied that they possess the skills and expertise required to design and provide rehabilitation programs. The rehabilitation authority will pay for the cost of the design and provision of the rehabilitation program which can cover a number of aspects of rehabilitation including medical, dental, psychiatric, hospital in-patient and out-patient services, physical training and exercise, physiotherapy, occupational therapy, vocational rehabilitation, training, psycho-social training and counselling. If a person refuses or fails to participate in a rehabilitation program without reasonable excuse, payment of compensation under the MRCA (but not treatment) may be suspended until they undertake the program. The rehabilitation authority is able to cease or vary a rehabilitation program after arranging for another assessment of a member s capacity for rehabilitation either on its own initiative or at the written request of the member. 3.6 Power to suspend compensation payments The power to make decisions to suspend compensation payments where a person refuses or fails to undergo an examination or undertake a rehabilitation program 4-59

60 Pension Officer November 2009: Repatriation Handbook without reasonable excuse is vested in the rehabilitation authority and is delegated only at a high level. Suspension may only take place where all reasonable steps have been taken to resolve the issue. Access to treatment is not suspended in these cases. 3.7 Payment for modification, aids and appliances related to rehabilitation The MRCA makes provision for payment of the cost of alterations to a person s place of work, education or residence, and aids and appliances and their repair and replacement if these are reasonably required having regard to: the nature of the person s impairment; and the requirements of the approved rehabilitation program if the person is undertaking one. These provisions are designed to assist those who are undertaking or have completed an approved rehabilitation program, as well as those who have been assessed as being incapable of undertaking a rehabilitation program. To be eligible the person must be undertaking or have completed a rehabilitation program or have been assessed as not having the capacity for rehabilitation. The provisions for vehicle modifications, repair and replacement are contained in Chapter 4, which enables the MRCC to establish a Motor Vehicle Compensation Scheme to provide vehicle assistance. 3.8 Transition management The relevant Service Chief must appoint a case manager for members of the Permanent Forces, or the Reserves on continuous full-time service, who have been identified as likely to be discharged on medical grounds. The case manager is required to assist the member in the transition to civilian life by ensuring that they have information about, and access to, entitlements and services available. 3.9 Reconsideration and review of decisions about rehabilitation Decisions about rehabilitation matters that are made by the MRCC or a Service Chief are reviewable in most cases see Chapter 8 of this Guide. Rehabilitation... MRC 05 The fact sheet provides information about rehabilitation available to Australian Defence Force members and former members under the Military Rehabilitation and Compensation Act 2004 (MRCA) 4-60

61 November 2009: Repatriation Handbook Pension Officer 4 Compensation for Members and Former Members 4.1 Permanent impairment Overview As a result of sustaining an injury or disease, a member or former member of the ADF may suffer permanent impairment. Impairment is defined in the MRCA as the loss, loss of the use, or the damage or malfunction, of any part of the person s body, of any bodily system or function, or of any part of such a system or function. Where liability for an injury or disease has been accepted and the member or former member suffers a permanent impairment from that condition, the MRCA enables compensation to be paid either by way of periodic payments or a lump sum payment or a combination of the two. Permanent impairment compensation payments are non-economic loss payments for pain, suffering, functional loss or dysfunction and the effects of the injury or disease on lifestyle. Lump sum payments are age-based, that is, for a given level of permanent impairment they are constant up to age 30 for males and age 35 for females and will reduce after those ages according to a formula provided by the Australian Government Actuary. The age used for making the adjustment is the age at next birthday of the person at the date at which the MRCC advises the person that permanent impairment compensation is payable. All permanent impairment payments are tax-free. Permanent impairment payments for severe impairment from accepted injury or disease are increased under a sliding scale from 50 to 80 impairment points. The Severe Injury Adjustment lump sum available under SRCA has been gradually incorporated into the MRCA periodic permanent impairment payments from 50 impairment points, reaching the maximum amount when the degree of whole person impairment arising from accepted conditions is 80 points. This means that severely impaired persons receive higher compensation for their accepted conditions earlier than is the case under SRCA Guide for assessment of level of impairment In assessing claims for permanent impairment, the MRCC must decide if the injury or disease is likely to continue indefinitely and if so, it must determine the level of impairment that the injury or disease causes. In order to assess the level of compensation payable, the MRCA contains a provision that enables the MRCC to prepare and use an assessment guide. The MRCA also contains provision for the MRCC to repeal or amend the assessment guide and that the guide is a disallowable instrument. The MRCC has issued a guide called the Guide to Determining Impairment and Compensation, also referred to as GARP (Military) or GARP M. The guide is essentially the same as the GARP that is used in the VEA (GARP V), with the following changes: 4-61

62 Pension Officer November 2009: Repatriation Handbook Chapter 23 Calculating permanent impairment compensation, which changes the way impairment and lifestyle ratings are combined to determine compensation payable; Chapter 24 Converting weekly payments into lump sums; and Chapter 25 Method of working out the amount of compensation payable under the MRCA for a person with a VEA or SRCA injury or disease Impairment is expressed as a rating on a scale of 0 to 100. The impairment rating is combined with a lifestyle rating (0 to 7) to give a compensation factor on a scale from 0 to 1. This is then multiplied by the maximum amount of weekly financial compensation for permanent impairment to determine how much a person is entitled to as a pension. This amount may be paid as a periodic payment, as an age based lump sum or as a combination of both, with the available choices depending on the degree of impairment. From 80 impairment points the compensation factor will be one, irrespective of lifestyle, resulting in payment of the maximum possible amount. Tables are published in GARP M which enable the amount of compensation to be readily calculated for various combinations of impairment and lifestyle. Unlike in GARP V, impairment ratings in GARP M are not to be rounded up or down. GARP M can be found in CLIK: Legislation/Military Rehabilitation and Compensation/MRC Instruments/GARP M Assessment of amount of permanent impairment compensation payable Warlike and non-warlike service v peacetime service The MRCA stipulates that the assessment guide must specify different methods for combining the impairment points and lifestyle rating for conditions related to warlike and non-warlike service as opposed to conditions related to peacetime service. Compensation for more than one condition If the two conditions lead to impairment ratings, then a combined impairment rating must be calculated. If the two conditions are claimed at the same time, providing that they are both stable, they are determined at the same time and the level of compensation is calculated using the combined impairment. If the conditions are claimed at different times, a combined impairment rating is calculated for all previously accepted conditions plus the newly claimed condition to work out the level of compensation payable. This generally means that the previously accepted conditions will need to be re-assessed. Compensation where two conditions arise from different service If the two conditions lead to impairment ratings of A and B and are caused by warlike/non-warlike service and peacetime service respectively, then the compensation payable is a weighted average of the compensation that would be payable if both conditions were caused by warlike/non-warlike service and peacetime 4-62

63 November 2009: Repatriation Handbook Pension Officer service. A and B are the weights used. The actual formula is found at the end of Chapter 23 of GARP M. What constitutes permanent impairment? The MRCA provides for permanent impairment compensation to be paid to a member or former member who suffers an impairment from a service injury or service disease for which liability has been accepted, where the impairment has stabilised and is likely to continue indefinitely. This is assessed having regard to factors such as the duration of the impairment, the likelihood of improvement and, whether the person has undertaken all reasonable rehabilitative treatment. Minimum level of impairment for which compensation is payable The MRCA stipulates that permanent impairment compensation is not payable where: the level of impairment for all compensable injuries and diseases where none involve hearing loss, is assessed at less than 10 points under GARP M; and the level of impairment for all compensable conditions where hearing loss is involved, is assessed at less than five points under GARP M. The MRCA provides that loss or loss of use of a finger or toe or the loss of sense of taste or smell will attract a permanent impairment compensation payment even if they are assessed below 10 points, provided that the assessment is not less than five points. 4.2 Additional compensation Additional injuries or diseases The MRCA enables the payment of additional compensation for additional injuries or diseases to people who have been paid, or are entitled to be paid, permanent impairment compensation or an interim payment if: a person makes a claim for additional compensation; the MRCC accepts liability for one or more additional service injuries or diseases; the additional injury or disease results in the person suffering an additional impairment; the impairment is likely to continue indefinitely; the condition has stabilised; and the increase in the person s overall impairment rating is at least five points (unlike the SRCA which treats injuries separately with the impairment rating for each having to reach a 10 per cent threshold) Worsening of an already accepted condition Additional compensation can also be paid if: a person makes a claim for additional compensation; 4-63

64 Pension Officer November 2009: Repatriation Handbook the person suffers additional impairment directly related to the deterioration of an injury or disease for which permanent impairment compensation or an interim payment has already been paid; the impairment is likely to continue indefinitely; the condition has stabilised; and the increase in the person s overall impairment rating is at least five points (rather than 10 per cent increase as applies under the SRCA) Interim compensation The MRCA enables interim impairment payments to be made where the MRCC is satisfied that the person is entitled to a permanent impairment payment but it is not able to decide the degree of impairment because the condition has not yet stabilised. The amount of an interim impairment payment is determined by the MRCC on its best estimate of the final degree of impairment but excludes assessment of lifestyle effects. When the condition has stabilised and the MRCC is able to make a decision on the final degree of impairment, the permanent impairment compensation payable is the difference between: the amount of compensation paid in respect of the level of impairment arrived at for the interim assessment (and any additions made to that payment for worsening or the acceptance of additional conditions); and the amount of compensation payable in respect of the final degree of impairment and the effect of that impairment on the person s lifestyle Maximum amount of compensation payable The maximum amount of permanent impairment compensation payable is a weekly amount specified in the legislation, indexed to the Consumer Price Index (CPI) annually on 1 July. The maximum amounts are payable once a person s impairment rating reaches 80 points and do not depend on the type of service giving rise to the condition/s. Amounts for lesser degrees of impairment are calculated as the applicable percentage of the maximum amount. These payments will vary according to the type of service rendered during which the injury was sustained or the disease was contracted. Periodic payments are also indexed annually on 1 July. An additional amount (in the form of a lump sum only) may be paid in respect of a child in certain circumstances (see Additional Amounts for Children below). The maximum lump sum is payable up to age 30 for a male and 35 for a female. It will reduce after those ages according to a formula provided by the Australian Government Actuary. The maximum amount is indexed to the CPI on 1 July. 4-64

65 November 2009: Repatriation Handbook Pension Officer 4.3 Date from which periodic compensation is payable Permanent impairment periodic compensation Permanent impairment periodic compensation is payable from the later of: the date on which the person made the claim for acceptance of liability for the injury or disease; or the date from which the MRCC considers that the person is entitled to permanent impairment payments (ie, s68(1) is satisfied) Additional periodic compensation Additional periodic permanent impairment compensation for additional injuries or diseases is payable from the later of: the date on which the person made the claim for acceptance of liability for the additional injury or disease; or the date on which the MRCC considers that the increase in impairment occurred and that the additional condition stabilised. Additional periodic permanent impairment compensation for deterioration in an injury or disease is payable from the later of: the date on which the person made the claim for acceptance of liability for the additional compensation; or the date on which the MRCC considers that the increase in impairment occurred and that person is entitled to receive additional compensation as outlined in s71(1) Interim periodic compensation For condition/s which have not yet stabilised, interim periodic compensation may be payable from the later of: the date on which the person made the claim for acceptance of liability for the injury or disease; or the date on which the MRCC considers that impairment suffered by the person reached at least 10 impairment points and is not likely to reduce once the condit ion/s have stabilised. Interim payments are made on the whole person impairment only and do not take into account effects of the claimed condition/s on lifestyle, as these may change after the condition stabilises. 4-65

66 Pension Officer November 2009: Repatriation Handbook Permanent impairment payment choice The VEA only provides fortnightly periodic payments of compensation and the SRCA only enables permanent impairment compensation to be paid in a lump sum. Permanent impairment compensation under the MRCA can be paid as: a weekly periodic payment paid on a fortnightly basis; or a lump sum which is the age-based, actuarial equivalent of the weekly amount; or a combination of a lump sum and periodic payments with the options available depending on the level of permanent impairment. A person s payment options are as follows: Percentage of Maximum Weekly Compensation to which the Claimant is Entitled Under 10% of maximum weekly compensation 10% to 20% of maximum weekly compensation Payment Options Either 100% lump sum or periodic payments. 50% lump sum, 50% periodic payments or either 100% lump sum or periodic payments. Above 20% of maximum weekly compensation 25% lump sum, 75% periodic payments or 50% lump sum, 50% periodic payments, or 75% lump sum, 25% periodic payments, or either 100% lump sum or periodic payments Once permanent impairment compensation or interim compensation has been determined by the MRCC, the MRCA requires the MRCC to notify the person of the amounts of the various payment choices. A person who wishes to receive a lump sum or lump sum/periodic payment combination instead of periodic payments must make that choice within six months after receiving advice of the periodic payment amount. The MRCA enables the MRCC to extend this period in special circumstances. During the period between the date of effect and the date at which the client notifies the MRCC of the choice, the weekly periodic payments are made fortnightly. If the client subsequently chooses the lump sum, any periodic payments which have already been made are deducted from the lump sum. If no choice is made, the client will continue to receive the fortnightly periodic payments. A lump sum is payable within 30 days after the MRCC becomes aware of the person s decision to choose a payment option involving a lump sum. Interest is payable to the person, at a rate specified by the Minister, for any period over 30 days 4-66

67 November 2009: Repatriation Handbook Pension Officer that compensation remains unpaid. These provisions do not apply where either the person or the MRCC lodges an application for reconsideration of the amount of compensation payable. Once a person chooses the lump sum, they cannot revert to periodic payments. They may later become entitled to additional compensation for additional injury or disease or deterioration in an injury or disease for which permanent impairment compensation has already paid. In that case they may choose periodic payments, a lump sum or a combination for payment of that additional compensation irrespective of the choice made for earlier compensation Additional amounts for children The MRCA provides that a member or former member who is entitled to the maximum amount of permanent impairment compensation is entitled to a specified, indexed lump sum for each dependant who is an eligible young person see Chapter 5. This requires that the child must have been wholly or partly dependent on the member or former member at the date the claim for acceptance of liability for the condition was made or, the date the MRCC determined that the degree of impairment was 80 points or more. The compensation is paid to the person who has primary responsibility for the care of the child if the child is under 18 or to the child if aged 18 or over Financial advice Where a member or former member is entitled to permanent impairment compensation and the level of impairment is assessed at 50 points or more, reimbursement up to a specified amount (indexed) can be made for the reasonable costs of financial advice obtained from a suitably qualified person. This is intended to enable the member or former member to obtain advice on which payment option best suits his or her individual circumstances. A person whose impairment is assessed at or above 50 impairment points may also be entitled to assistance with the cost of financial advice obtained in regard to a choice between incapacity payments and a Special Rate Disability Pension safety net payment (SRDP). If the person was advised of the impairment assessment and their eligibility for SRDP at the same time, they cannot receive two payments for financial advice. If a person has received a payment for financial advice and later becomes eligible for SRDP, a further payment for financial advice can be made under the SRDP provisions. Compensation Payment Rates... MRC 04 Permanent Impairment Compensation Payments... MRC 07 Permanent Impairment Payment Choices... MRC 20 These fact sheets provide information about permanent impairment payments available to Australian Defence Force members and former members under the Military Rehabilitation and Compensation Act 2004 (MRCA) 4-67

68 Pension Officer November 2009: Repatriation Handbook 4.4 Incapacity payments Overview The MRCA provides financial compensation for loss of earnings (termed economic loss) in the form of incapacity payments. Incapacity payments may be made to members of the ADF who are still serving and are incapacitated for service and to former members of the ADF who are incapacitated for work. Incapacity... MRC 08 The fact sheet provides information about incapacity payments payable under the Military Rehabilitation and Compensation Act 2004 (MRCA) Entitlement to incapacity payments Incapacity payments may be made to members and former members of the ADF, including reservists, cadets and declared members, who are incapacitated for service or work as a result of an injury or disease for which liability is accepted. Incapacity payments are payable from the date of onset of the incapacity and will continue to be paid until such time as: the person is no longer suffering loss of income as a result of their injury or illness (i.e. their actual earnings are the equivalent of their assessed normal earnings); the person is considered by the MRCC as being able to earn income from suitable employment, but does not do so for reasons other than the accepted illness or injury; or the person reaches age 65. The MRCA stipulates that incapacity payments cease at age 65. The exception to this is where the person is over 63 at the time of the injury or contraction of the disease for which liability is accepted. In these cases, incapacity payments may be paid in respect of a cumulative period not exceeding 104 weeks from the time of incapacity for service or work even if that covers a period past attaining age 65. Incapacity payments are generally taxed Calculation of incapacity payments Incapacity payments are calculated by looking at what a member would normally earn and any amount that is actually earned. If the amount actually earned is less than the amount that is normally earned, incapacity payments may cover that difference. Under the MRCA, normal earnings are calculated in a number of ways. In the case of a Permanent Force member, normal earnings are calculated against the member s service earnings. In the case of Reserve members, normal earnings are calculated against either civilian or reserve earnings or a combination of both. In all cases, the normal earnings are calculated by looking at what the member was earning at the time of the incapacity, for serving members, or what was earned at the date of discharge for former members. 4-68

69 November 2009: Repatriation Handbook Pension Officer Incapacity payments for serving members are paid at 100 per cent of the member s normal earnings at the time of incapacity, less any income the member is actually earning. Once the member is discharged, incapacity payments are paid at 100 per cent of normal earnings at time of discharge, less any actual earnings, for a period equal to 45 full weeks after the date of discharge. The 45-week period need not be continuous and represents a total of 45 weeks worth of incapacity payments. After 45 weeks, incapacity payments are reduced to a maximum of 75 per cent of normal earnings if the person is unable to return to work. Where the former member undertakes a return to work program, incapacity payments are calculated as a higher percentage of normal earnings depending on the number of hours worked per week. The following table shows how a graduated return to work process will impact on the calculation of incapacity payments using the formula percentage of normal earnings minus actual earnings. Hours of employment Rate of incapacity payments Nil 75% of normal earnings minus actual earnings 25% or less of normal weekly hours 80% of normal earnings minus actual earnings More than 25% but less than 50% 85% of normal earnings minus actual earnings More than 50% but less than 75% 90% of normal earnings minus actual earnings More than 75% but less than 100% 95% of normal earnings minus actual earnings 100% of normal weekly hours 100% of normal earnings minus actual earnings Remuneration loading Where incapacity payments are calculated against full-time ADF wages, the MRCA provides a loading of a specified amount per week to be added to the normal weekly earnings calculation of former members. The loading is designed to recognise the loss of non-salary related benefits such as Defence housing that were provided while in service. It is indexed in accordance with section 183 by regulation Incapacity payments for Reserve service The MRCA contains provisions that recognise the income support needs of members of the Reserves who become incapacitated as a result of their service. Particular regard has been given to the range of circumstances faced by members of the Reserves who are injured during periods of service with the ADF and are subsequently unable to engage in their usual civilian occupation. Reserve members injured on continuous full-time service (CFTS) and incapacitated for work will be able to choose to receive incapacity payments based either on their military earnings plus the remuneration loading or on their normal pre-cfts civilian earnings. The latter may also include earnings from part-time Reserve service if that was regularly rendered prior to full-time service. This will ensure that high earning Reservists, such as medical specialists, are not financially disadvantaged if injured during service. Reserve members injured on part-time service and incapacitated for work will receive incapacity payments based on a combination of their part-time military earnings and 4-69

70 Pension Officer November 2009: Repatriation Handbook their normal civilian earnings. For part-time reservists, the portion of their incapacity payment which replace lost reserve earnings is not taxed Superannuation offsets Incapacity payments are offset dollar for dollar by any Commonwealth-funded component of superannuation a person receives, which accrued during their ADF service. The benefits derived from the members own contributions to the affected superannuation funds (the employee components) are not offset against incapacity payments under the MRCA. Incapacity payments in the MRCA are not reduced by the notional member superannuation contributions that would have been paid had the person still been in the scheme (unlike under the SRCA) Minimum earnings provision The MRCA provides minimum normal weekly earnings for incapacity payments, equivalent to the federal minimum wage. Where a person s normal earnings are less than this amount, such as some part-time Reservists and philanthropic representatives, the federal minimum wage is taken to be the person s normal earnings for the purpose of incapacity payments Lump sum redemption The MRCA provides an option for certain people to take incapacity payments in a lump sum, where the weekly payment is less than a specified amount. This option is available where the person is engaged in work or is receiving Commonwealth superannuation and the MRCC is satisfied that their incapacity for work is unlikely to change Date of effect for incapacity compensation The earliest date from which any incapacity payments can be made is the first date on which the inability to undertake normal work occurred. Payments can be made from this date for loss of income and for any rehabilitation or treatment provided after that date in connection with the incapacity for work. The maximum level of incapacity payments is not capped in the MRCA, as is the case with the SRCA and the prescribed maximum levels of pension in the VEA. This provision is particularly relevant for high income earning Permanent Force members and Reservists. Incapacity payments that take account of service earnings are adjusted in line with movements in the relevant ADF pay and allowance rates. Incapacity payments that take account of civilian earnings are adjusted in accordance with the SRCA method of indexation, that is a wage price index. 4-70

71 November 2009: Repatriation Handbook Pension Officer 4.5 Special Rate Disability Pension Nature of benefit Where a member or former member is incapacitated for work by an accepted injury or disease, they may be eligible to receive incapacity payments. Post-discharge incapacity payments generally are based on the person s final military salary and are payable to age 65. The MRCA provides a choice of receiving tax-free Special Rate Disability Pension safety net payment (SRDP) or taxable incapacity payments to certain members. The SRDP provides an alternative form of compensation for people whose capacity for work has been severely curtailed because of injury or disease accepted under the MRCA. The SRDP is payable for life Eligibility criteria for SRDP A former ADF member must meet the following criteria to be eligible for a SRDP: have an injury or disease assessed at 50 or more impairment points; be in receipt of incapacity payments under the MRCA; and be assessed as: unable to undertake remunerative work for more than 10 hours a week; and unlikely to be assisted by rehabilitation to have a capacity to undertake remunerative work for more than 10 hours a week Administrative procedures and one-time choice Provision of the SRDP is dependent on acceptance of an offer that the MRCC is required to make as soon as possible after determining that the person meets the eligibility requirements. A maximum of 12 months from the date of the offer is allowed for the response. If no choice is made, the default benefit is continuation of incapacity payments until age 65. The person must satisfy the eligibility criteria at the time of acceptance Financial advice The person offered the choice of taking the SRDP or incapacity payments must seek financial advice about the choice. Reimbursement of up to a specified amount (indexed) can be made for the reasonable costs of financial advice obtained from a suitably qualified person. This is intended to enable the person to obtain advice on which payment option best suits their individual circumstances Rate of SRDP The SRDP rate is based on the Special Rate disability pension provided under the VEA, and is offset by the member s MRCA permanent impairment payments, the weekly equivalent of any PI lump sums paid under the SRCA, the amount of any 4-71

72 Pension Officer November 2009: Repatriation Handbook disability pension paid under the VEA and the Commonwealth-funded component of any superannuation the member receives Offsetting arrangements Effect of permanent impairment payments The MRCA provides for the SRDP to be offset by MRCA payments for permanent impairment. Periodic payments are offset dollar for dollar while lump sum payments are offset in accordance with the values of the periodic payment that was converted to the lump sum. Effect of Commonwealth-funded component of superannuation SRDP is offset at the rate of 60 cents for each $1 of any Commonwealth-funded component of superannuation a person receives, which accrued during their ADF service. The benefits derived from the members own contributions to the affected superannuation funds (the employee components) are not offset against SRDP payments under the MRCA. Effect of VEA disability pension and SRCA permanent impairment payments Section 14 of the MRC(Consequential and Transitional Provisions) Act 2004 provides for the SRDP to be offset dollar for dollar by half the fortnightly amount of any DP paid under the VEA and by the weekly equivalent of the sum of any SRCA PI lump sums paid to the person Other matters SRDP payments are tax-free. Incapacity payments are subject to taxation where they replace taxable salary or allowances. There are varying welfare and taxation rebate benefits arising from the alternative payments. The SRDP is paid for life while incapacity payments cease at age 65. Any member or former member who is eligible for the SRDP will be given a gold card entitling them to treatment for all conditions, regardless of whether they choose to receive incapacity payments or the SRDP. On the death of those eligible for the SRDP, their dependants may become eligible for benefits under Chapter 5 of the MRCA, similar to the automatic eligibility which applies on the death of VEA Special Rate pensioners. Special Rate DP Safety Net Payment... MRC 09 This fact sheet explains the circumstances under which a Special Rate Disability Pension safety net payment (SDRP) may be granted under Military Rehabilitation and Compensation Act 2004 (MRCA) SRDP Payment Choices... MRC 21 The fact sheet outlines the compensation payment choices that available to those eligible for the Special Rate Disability Pension safety net payment (SRDP) under the Military Rehabilitation and Compensation Act 2004 (MRCA)and provided information to assist in making a payment choice. It is not about investment choices. 4-72

73 November 2009: Repatriation Handbook Pension Officer 4.6 Other Types Of Compensation Motor Vehicle Compensation Scheme Overview The MRCA enables eligible people to receive motor vehicle modifications and, in certain circumstances, assistance with the provision of a motor vehicle under a scheme established by the MRCC. These provisions are intended for members and former members who need modifications to a motor vehicle because of impairment arising from an injury or disease for which liability has been accepted. Establishment of the Motor Vehicle Compensation Scheme The MRCA empowers the MRCC to establish the Motor Vehicle Compensation Scheme (MVCS). The MVCS is a disallowable instrument which means it has been subject to parliamentary scrutiny. Eligibility criteria The MRCA specifies that assistance under the scheme may be provided where there is a need for motor vehicle modification because of impairment arising from an injury or disease for which liability has been accepted. Type of assistance The MRCA enables modifications to a person s vehicle and the maintenance or repair of modifications. The details are included in the MVCS. It is recognised that in some cases, the necessary modifications to the person s vehicle may not be possible. For this reason, the MRCA enables the MRCC to subsidise the purchase of a suitably modified vehicle. In some cases it may be necessary to supply an eligible person with a suitably modified vehicle where they do not already own one. The circumstances under which this assistance may be provided are detailed in the MVCS. This may include, for instance, a person who never previously owned a car and cannot use public transport because of severe impairment as a result of an accepted condition. Conditions The MVCS sets out the conditions under which a vehicle or modifications to a vehicle are supplied. The person accepting compensation under the MVCS is responsible for the registration, running and proper maintenance of the motor vehicle. Insurance for the vehicle is also the responsibility of the person although the MRCC will pay for additional insurance costs that relate to any modifications provided. Motor Vehicle Compensation Scheme (MVCS)... MRC 10 The fact sheet provides information about the motor vehicle compensation scheme (MVCS) established under the Military Rehabilitation and Compensation Act 2004 (MRCA) 4-73

74 Pension Officer November 2009: Repatriation Handbook Household and Attendant Care Overview The provisions of the MRCA relating to household and attendant care are modelled on those in the SRCA. They apply to members and former members who need household and/or attendant care because of an injury or disease for which liability is accepted. Many of these people will also be eligible for a White Card or Gold Card and have access to treatment provided through the MRCA Treatment Principles, which include assistance with household and attendant care under the Veterans Home Care program. People who have entitlement to assistance with household and attendant care under the MRCA provisions do not have entitlement for the same services under the MRCA Treatment Principles. Household services Compensation can be paid for household services reasonably required by a person because of an injury or disease for which liability is accepted. Household services mean services of a domestic nature that are required for the proper running and maintenance of the person s household such as cooking, house cleaning and gardening services. The MRCA sets out a number of factors that the MRCC must have regard to in determining what household services are reasonably required. The amount of compensation for reasonable household services is up to a specified amount per week. The amount is indexed annually in July. Household Care Services... MRC 42 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). Attendant care services Compensation can be paid for attendant care services reasonably required because of an injury or disease for which liability is accepted. Attendant care services means services (other than household services, medical or surgical services or nursing care) that are required for the essential and regular personal care of the person such as eating, bathing, dressing and toileting. The MRCA sets out a number of factors that the MRCC must have regard to in determining what attendant care services are reasonably required. The amount of compensation for reasonable attendant care services is up to a specified amount per week. The amount is indexed annually in July. Attendant Care... MRC 41 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). 4-74

75 November 2009: Repatriation Handbook Pension Officer MRCA Supplement The MRCA Supplement is a fortnightly payment that replaced Telephone (and Internet) Allowance and Pharmaceutical Allowance to eligible MRCA claimants with effect from 20 September It is payable to persons who: are eligible for a Repatriation Health Card (white or gold) under the MRCA; or meet the criteria for a SRDP; or are assessed as having a permanent impairment from accepted injury or disease assessed at or above 80 points; or are wholly dependent partners of deceased members who are eligible for a death benefit under the MRCA see Chapter 5. The MRCA supplement is payable at either the low rate per fortnight or the high rate per fortnight, depending on eligibility. MRCA clients (who are not WDPs) with a Repatriation Health Card are eligible for the MRCA Supplement at the low rate. MRCA clients (who are not WDPs) are eligible for the MRCA Supplement at the high rate if they have a gold Repatriation Health Card and are either: eligible for the Special Rate Disability Pension (SRDP) safety net payment; or assessed as having a permanent impairment at or above 80 points. Wholly dependent partners are eligible to receive the supplement at the high rate. However one or both components (ie PA and/or TA) may be rolled into existing DVA payments which they receive. Where this is not the case, WDPs will receive the supplement as a separate payment. MRCA Supplement (replacing Pharmaceutical and/or Telephone Allowance)... MRC 40 The fact sheet explains when the MRCA Supplement may be payable under the Military Rehabilitation and Compensation Act 2004 (MRCA) Compensation for loss or damage to medical aids These provisions reflect section 15 of the SRCA. They enable serving members of the ADF to receive compensation for the reasonable costs of replacing or repairing medical aids which have been lost or damaged due to an accident that happened whilst rendering service in the ADF. This compensation is not payable where the accident has resulted in an injury or disease. Damage that occurred whilst travelling from a place of duty may also be compensated. However, there are some circumstances where compensation is not payable for damage due to travel from a place of duty. For instance, compensation is not paid if there was a substantial delay in commencing the journey, or an interruption to the journey, that increased the risk or extent of the accident. Similarly, travelling on 4-75

76 Pension Officer November 2009: Repatriation Handbook a route which was not reasonably direct and increased the risk or extent of the accident is not covered. Compensation will not be provided for loss or damage to medical aids resulting from being under the influence of alcohol or drugs or other serious default or wilful act, whilst the member was committing a serious breach of discipline or where the loss or damage was intentional. Serving members can often have damaged medical aids replaced by the ADF and if so, they will not be entitled to compensation for the damaged medical aids under the MRCA provisions. Additionally, this compensation is not intended for loss or damage to a medical aid provided for an accepted condition. In these circumstances, compensation is available under the treatment provisions in Chapter 6 of the MRCA. 5 Compensation for Dependants 5.1 Overview This Chapter sets out the types of compensation payable to dependants of deceased members and former members, the education assistance available to certain dependent children and funeral benefits. 5.2 Compensation for wholly dependent partners Definition of wholly dependent partner A wholly dependent partner is a person who: was married to, or living with the member in a marriage-like relationship with the member immediately before the member s death; and was wholly dependent on the member for economic support. Note that from 1 July 2009, the definition of partner in MRCA was expanded to include a de-facto relationship with a person of the same sex under the Same-Sex Relationships (Equal Treatment in Commonwealth Laws - General Law Reform) Act (Same-Sex Act). This brought MRCA into line with SRCA, where the change came into effect from 10 December 2008 see Chapter 4, Part A, 8.1 Subsequently, regulations made under the MRCA extended a number of benefits to partners and children of deceased current and former members of the ADF where: death occurred prior to 1 July 2009; and if the death had occurred on or after 1 July 2009, the person seeking benefits would have been recognised as the partner or child of the deceased under the Same-Sex Act. 4-76

77 November 2009: Repatriation Handbook Pension Officer A partner living with the member immediately before the member s death is regarded as being wholly dependent on the member for economic support without having to establish the dependency for economic support. A partner is also regarded as being wholly dependent where the couple were temporarily living apart or were living apart due to illness of either or both of them immediately before the member s death Death benefit Wholly dependent partners can receive either tax-free periodic payments equivalent to the war widow/er s pension under the VEA or its lump sum equivalent where: liability for the member s death has been accepted; or the deceased member satisfied the criteria for receiving a SRDP during some period of his or her life; or the member s permanent impairment is assessed at 80 or more points immediately before his or her death. The periodic payment is payable from the date of the member s death. The lump sum option is calculated using the partner s age at the date of the member s death and the rate payable at that time. For deaths prior to 1 July 2009, this benefit is also available to partners to whom the Same-Sex Act applies Making the choice A wholly dependent partner who wishes to receive a lump sum death benefit instead of periodic payments must make that choice within six months after receiving advice of the payment options and the amounts involved. The MRCC can extend this period in special circumstances. If the partner does not make the choice within the time period, the periodic payment is paid. Once a choice is made, it cannot be changed Financial advice A wholly dependent partner offered the choice between taking the death benefit as a lump sum or as a periodic payment is entitled to reimbursement of up to a specified amount (indexed) for the reasonable costs of obtaining financial advice from a suitably qualified person. This is intended to enable the partner to obtain advice on which payment option best suits their individual circumstances. For deaths prior to 1 July 2009, this benefit is also available to partners to whom the Same-Sex Act applies, but only for advice received on or after 1 July Additional death benefit The MRCA also provides an additional tax-free death benefit in a lump sum to widowed wholly dependent partners where liability for the death has been accepted. Where the widowed wholly dependent partner was aged 40 or less at the time of the 4-77

78 Pension Officer November 2009: Repatriation Handbook member s death, they receive the maximum specified amount. The payment reduces for those aged over 40 at the time of the member s death. For deaths prior to 1 July 2009, this benefit is also available to partners to whom the Same-Sex Act applies Other benefits Other benefits available under the MRCA for wholly dependent partners eligible for the death benefit include: a Gold Card providing treatment benefits, which are the same as those provided to war widow/ers under the VEA see Chapter 6; a MRCA Supplement at the high rate. However one or both components (ie the previous PA and/or TA) may be rolled into existing DVA payments which they receive. Where this is not the case, WDPs will receive the supplement as a separate payment. Additionally, these partners may be entitled to the VEA income support supplement (ISS) and associated allowances, subject to the same rules as apply to VEA war widow/ers. Under the VEA there is no concessional treatment of the war widow/er s pension in the assessment of the amount of ISS payable and this applies equally to the MRCA death benefit payments. For deaths prior to 1 July 2009, this benefit is also available to partners to whom the Same-Sex Act applies Continuation of deceased member s payments Under the MRCA, wholly dependent partners of deceased members are entitled to a bereavement payment equal to 12 weekly instalments of the deceased member s permanent impairment periodic payments, incapacity payments or SRDP. For deaths prior to 1 July 2009, this benefit is not available to partners to whom the Same-Sex Act applies. 5.3 Compensation for dependants who are eligible young persons Definition of a dependant who is an eligible young person Essentially, a dependant of a member who is an eligible young person is someone who: is under 16; or between 16 and 25, undertaking full-time education and not ordinarily engaged in full-time work on his or her own account; and is a dependant of the member that is, is one of the people listed in the definition of dependant (except a partner) eg a son, daughter, step-son, step-daughter, grandson, grand-daughter, brother, sister, half-brother or half-sister); and 4-78

79 November 2009: Repatriation Handbook Pension Officer was wholly or partly dependent on the member for economic support immediately before the member s death or would have been but for the incapacity of the member from an injury or disease. Eligible young persons who are dependants of a member are taken to be wholly dependent on the member if they normally lived with the member at the time of the member s death. An allowance is made for temporary absences or where the member and the eligible young person are living apart due to illness. A temporary absence may include one for educational purposes. A son or daughter of the member who was born after the member s death may be regarded as an eligible young person who was wholly dependent on the member Lump sum death benefit payment A dependant of a deceased member or former member who is an eligible young person is entitled to a tax-free lump sum compensation payment where: liability for the member s death has been accepted; or the deceased member satisfied the criteria for receiving a SRDP during some period of their life; or the member s permanent impairment is assessed at 80 or more points immediately before their death. For deaths prior to 1 July 2009, this benefit is not available to children to whom the Same-Sex Act applies Periodic payment A weekly payment is also available provided that the eligible young person was wholly or mainly dependent on the member or former member immediately before the death. For deaths prior to 1 July 2009, this benefit is available to children to whom the Same-Sex Act applies, but only on and from 1 July Who receives the payment? The compensation is paid to the person who has primary responsibility for the care of the child if the child is under 18 or to the child if aged 18 or over Education assistance The MRCA empowers the MRCC to establish, vary or revoke its own education scheme or to adopt the provisions of another education scheme in order to provide education and training assistance to certain children of members and former members. The MRCC has established the Military Rehabilitation and Compensation Act Education and Training Scheme (MRCAETS) that is largely based on the Veterans Children Education Scheme (VCES) established under the VEA. 4-79

80 Pension Officer November 2009: Repatriation Handbook An eligible child for the purpose of gaining education assistance is an eligible young person (not being a wholly dependent partner) who: is a dependant of a member or former member entitled to permanent impairment compensation assessed at or above 80 points; or is a dependant of a member or former member eligible SRDP; or was a dependant of a deceased member immediately before that member s death where: liability for the member s death has been accepted; or the deceased member satisfied the criteria for receiving a SRDP during some period of their life; or the member s permanent impairment is assessed at 80 or more points immediately before their death. Note: To be a dependant, the person must be wholly or partly dependent on the member for economic support or would have been but for the incapacity of the member from an injury or disease. For deaths prior to 1 July 2009, this benefit is available to children to whom the Same-Sex Act applies, but only from the first payday after 1 July Other benefits Other benefits available under the MRCA for dependants who are eligible young persons entitled to a death benefit include: a Gold Card providing treatment benefits, which are the same as those provided to war widow/ers under the VEA if wholly or mainly dependent see Chapter 6; and the MRCA Supplement at the low rate if wholly or mainly dependent see Chapter 6. For deaths prior to 1 July 2009, this benefit is available to children to whom the Same-Sex Act applies, but only from the first payday after 1 July Continuation of a deceased member s payments Dependants who are eligible young persons and were wholly or mainly dependent on a member or former member immediately before the death may be entitled to a bereavement payment. This is equal to 12 weekly instalments of the deceased member s permanent impairment periodic payments, incapacity payments or SRDP divided amongst the eligible persons. A bereavement payment is available only where there is no wholly dependent partner entitled to this payment. For deaths prior to 1 July 2009, this benefit is not available to children to whom the Same-Sex Act applies. 4-80

81 November 2009: Repatriation Handbook Pension Officer 5.4 Compensation for other dependants Eligibility criteria The MRCA also provides compensation for other family members who were wholly, mainly or partly dependent on the deceased member for economic support. These can be persons such as a dependent mother, father, sister or brother or a partly dependent partner. A partly dependent partner can be a separated spouse, wife or husband, whether they were married or in a marriage-like relationship. The degree of dependency merely requires that there have been some financial dependence on the deceased member. The dependency can be through things like spousal maintenance or other regular payments made by the deceased member to the partner. As with wholly dependent partners and eligible young person dependants, compensation is provided if: liability for the member s death has been accepted; or the deceased member satisfied the criteria for receiving a SRDP during some period of their life; or the member s permanent impairment is assessed at 80 or more points immediately before their death. For deaths prior to 1 July 2009, benefits for other dependants are not available in cases where the Same-Sex Act applies. Eligible young persons and wholly dependent partners are not included in these provisions. They have separate and distinct entitlements (see above) Compensation for funeral expenses Compensation for the cost of a funeral may be paid where: liability for the member s death has been accepted; or the deceased member satisfied the criteria for receiving a SRDP during some period of their life; or the member s permanent impairment is assessed at 80 or more points immediately before their death. A dependant of the deceased member or the member s legal personal representative can make a claim for funeral expenses. The maximum amount of compensation payable is increased in line with the CPI annually in July. The compensation is in the form of reimbursement and, consequently, it is tax-free. In determining the amount payable, the MRCC must have regard to: charges ordinarily made for funerals; and any amount paid or payable in respect of the funeral under another Commonwealth law. 4-81

82 Pension Officer November 2009: Repatriation Handbook Funeral compensation is payable to the person who made the claim or, if that person so directs, to the person carrying out the funeral or any other person who incurred the cost of the funeral. Some funeral benefit provisions in the VEA apply for certain other deaths of persons with MRCA service. Partners... MRC 14 The fact sheet explains the circumstances under which wholly dependent partners of deceased members can be granted compensation under the Military Rehabilitation and Compensation Act 2004 (MRCA) and the type of compensation provided. Choices for Partners... MRC 19 The fact sheet explains payment choices available to wholly dependent partners eligible for a death benefit under the Military Rehabilitation and Compensation Act 2004 (MRCA) and provides information to assist in making the payment choice. It is not about investment choices. Dependent Children... MRC 15 The fact sheet explains the circumstances under which compensation can be granted to dependents who are eligible young persons under the Military Rehabilitation and Compensation Act 2004 (MRCA) and the type of compensation provided. Other Dependents... MRC 16 The fact sheet explains the circumstances under which compensation can be granted to dependents of deceased members and former members (other than wholly dependent partners and eligible young persons) and the amounts payable under the Military Rehabilitation and Compensation Act 2004 (MRCA) and the type of compensation provided. MRCA Education and Training Scheme... MRC 32 The fact sheet provides information about the Military Rehabilitation and Compensation Act Education and Training Scheme (MRCAETS). Funeral Assistance... MRC 17 The fact sheet outlines the funeral assistance provided under the Military Rehabilitation and Compensation Act 2004 (MRCA). Bereavement Payments... MRC 18 The fact sheet explains the circumstances under which a bereavement payment can be made under the Military Rehabilitation and Compensation Act 2004 (MRCA). 4-82

83 November 2009: Repatriation Handbook Pension Officer 6 Treatment for Injuries and Diseases 6.1 Overview The treatment provisions in the MRCA reflect a combination of those found in the SRCA and the VEA. For short-term treatment cases the SRCA type reimbursement provisions may apply. These provisions allow for the payment/reimbursement of reasonable costs incurred in the treatment of injury or disease, for which liability is accepted, by any qualified health provider and are contained in Part 2 of this Chapter of the MRCA. For conditions requiring long term treatment and for eligible dependants, the VEA White and Gold Card treatment arrangements (the card system) generally applies and these provisions are contained in Part 3 of this Chapter. A person may initially receive treatment for their accepted injury or disease under Part 2 (the reimbursement system) and, if the condition becomes permanent and requires ongoing long-term treatment, they may be transferred to the treatment arrangements under the card system. The transfer will usually occur after a review of their health care needs. There are protocols for this process. Some clients will have automatic entitlement to a Gold Card when they reach certain threshold impairment levels. Clients do not have access to the reimbursement system once they are on a Gold Card. Under the MRCA, health treatment is provided in order to: maintain a person in, or restore a person to, physical and mental health; or alleviate a person s suffering; and ensure a person s social well-being. 6.2 Entitlement to treatment former members The entitlement to treatment is derived from the acceptance by the MRCC of a claim for liability. A person whose permanent impairment from accepted injury or disease has been assessed at 60 points or more, or who is eligible for the SRDP, is automatically provided with a Gold Card. Treatment eligibility is from: where the White Card or reimbursement system applies for accepted injury and/or disease the date of the injury or the onset of the disease; or where the Gold Card applies the date that the person becomes eligible for compensation at 60 or more impairment points or SRDP (reasonable treatment for the accepted conditions only can be covered before the date of determination of eligibility for the Gold Card). 4-83

84 Pension Officer November 2009: Repatriation Handbook 6.3 Entitlement to health treatment eligible dependants The wholly dependent partner and/or dependent children of a deceased member who is eligible for the death benefit under Chapter 5 of the MRCA is entitled to a Gold Card. These arrangements reflect similar arrangements for eligible dependants under the VEA. Eligibility is from the day after the member s death. 6.4 Entitlement to treatment overseas A person eligible for treatment under Part 2 of Chapter 6, for injury or disease for which liability is accepted, is entitled to compensation for the costs of treatment which was reasonable for the person to obtain in the circumstances. This may include reasonable treatment obtained for the accepted injury or disease whilst living or travelling overseas. The MRCA states that there is no duty imposed on the MRCC to arrange for treatment to be provided outside Australia for a person eligible for treatment under Part 3 of Chapter 6 (the card system). Nor is there a right to be provided with treatment outside Australia. Treatment overseas is limited to that provided under the MRCA Treatment Principles. For members living or travelling overseas, the reasonable costs of treatment for accepted injuries and/or diseases only may be reimbursed upon production of original receipts and is generally limited to the cost that would have been incurred if the treatment was arranged in Australia. The Department of Veterans Affairs (DVA) must be notified of the person s intention to travel or live overseas. Treatment for all conditions is still available for eligible dependants holding a Gold Card. The cost of travel and treatment overseas for the sole purpose of obtaining treatment is not reimbursed under the current MRCA Treatment Principles. 6.5 Serving members ADF members on continuous full-time service are entitled to health care under ADF Regulations and therefore will not usually be provided with treatment under the MRCA while they continue to serve in that capacity. However, the MRCA allows the MRCC to provide treatment to a serving member under the MRCA where liability for compensation has been accepted and the member s Service Chief considers that it would be more appropriate to do so. This provision will assist in the continuity of health care for serving members who are in transition to discharge. 6.6 Journey and accommodation costs Part 4 of Chapter 6 of the MRCA provides for the payment of reasonable costs incurred by persons for travel and accommodation relating to their treatment. These provisions are modelled on the SRCA provisions. The MRCC may approve a person to act as an attendant to a patient requiring treatment and reimburse reasonable travel and accommodation costs incurred by the attendant. There is no liability for costs incurred for travel and accommodation where a person travels outside of Australia for the purpose of receiving treatment. 4-84

85 November 2009: Repatriation Handbook Pension Officer 6.7 Pharmaceutical allowance since 20 September 2009, a component of the MRCA Supplement See sections and MRCA Supplement (replacing Pharmaceutical and/or TelephoneAllowance)... MRC 40 The fact sheet explains when the MRCA Supplement may be payable under the Military Rehabilitation and Compensation Act 2004 (MRCA) 6.8 Administration The MRCA empowers the MRCC to make determinations relating to the treatment of certain conditions, the kind of treatment provided and the places where treatment is provided to a person eligible for treatment under the card system. The MRCC has issued the MRCA Treatment Principles, the MRCA Private Patient Principles and the MRCA Pharmaceutical Benefits Scheme which reflect those established under the VEA for these purposes. These documents can be found on CLIK at: Legislation Library/MRC Instruments. 6.9 Review The reconsideration and review process applies to determinations made under the Part 2 provisions and to some Part 4 provisions such as journey and accommodation. The Part 3 treatment provisions are governed by the MRCA Treatment Principles, the MRCA Private Patient Principles and the MRCA Pharmaceutical Benefits Scheme and are not subject to reconsideration and review. However, the MRCC is able to review the provision of treatment to the holders of White and Gold Cards at any time. This could occur at the time the card reaches its expiry date or when another claim for compensation is made and a Needs Assessment is conducted. A determination to move a person from the reimbursement system to the card system treatment is not reviewable VEA cards for MRCA members The VEA provides Gold Cards for: members with qualifying (warlike) service at age 70; members receiving service pension who meet the treatment eligibility income and asset limits; and members receiving service pension whose permanent impairment is assessed at or above 30 points, if the member is not already entitled to a Gold Card under the MRCA. The VEA also provides White Cards for MRCA members with warlike or nonwarlike service for treatment of non-service related posttraumatic stress disorder, depression, generalised anxiety disorder, malignant neoplasms and pulmonary tuberculosis if treatment for the condition is not accepted under the MRCA. 4-85

86 Pension Officer November 2009: Repatriation Handbook 7 Claims 7.1 Overview The claims provisions in the MRCA set out the procedures for making a claim. The claims provisions empower the MRCC to request information relevant to a claim, and to require a person to undergo a medical examination, after a person has made a claim. Most benefits under the MRCA require a claim to be made. A claim can be made for: acceptance of liability for an injury, disease or death; acceptance of liability for loss of or damage to medical aids; compensation eg permanent impairment compensation, compensation for incapacity for work or service, compensation for the cost of household and attendant care, treatment and death benefits. How to lodge a claim... MRC 25 The fact sheet explains how to make a claim under the Military Rehabilitation and Compensation Act 2004 (MRCA). How claims are decided... MRC 26 The fact sheet explains what happens after you have lodged a claim under the Military Rehabilitation and Compensation Act 2004 (MRCA). 7.2 Making a claim Claims must be made in writing on a form approved by the MRCC. The claim must be lodged at a place, or with an employee of the Department of Veterans Affairs, approved by with the MRCC. DVA State Offices, National Office and Veterans Affairs Networks in Darwin and Townsville are approved offices. The MRCA also allows for the electronic lodgement of claims, when procedures for electronic lodgement are finalised. 7.3 No time limits for claims The MRCA does not place a time limit on the lodgement of a claim but it is to the claimant s advantage to claim as soon as they become aware of the injury, disease or death, and while supporting information is readily available. 7.4 Who can make a claim? A claim is usually be made by the member, former member or a dependant of the member. The MRCA also enables claims to be made by: a person approved by the member, former member or dependant; a member, former member or dependant s legal personal representative; or 4-86

87 November 2009: Repatriation Handbook Pension Officer a person approved by the MRCC if the member, former member or dependant is physically or mentally incapable of making a claim and does not have a legal personal representative or, the legal personal representative has refused to make a claim or failed to make one within a reasonable time. 7.5 Claims made by serving members Where a person is a serving member when a claim is made, or dies whilst serving and a claim is made by a dependant, the MRCA requires that the MRCC must provide a copy of the claim and the determination to the relevant Service Chief. This provision reflects the SRCA requirement that the employer be notified where a claim is submitted by an employee. 7.6 Claims after death of claimant Where a person has made a claim and dies before the claim is decided, the claim can continue with any compensation payable being made to the person s estate. Where a person entitled to make a claim dies without making a claim, the person s legal personal representative may make a claim with any compensation payable being made to the person s estate. This does not apply to compensation for permanent impairment because permanent impairment compensation is intended to compensate the member or former member for physical disability, pain, suffering and lifestyle restrictions, the effects of which cease at death. 7.7 Investigation of a claim Collection of information The MRCC has the power to require a claimant holding information relevant to the claim to furnish information requested by the MRCC. Normally this information is required within 28 days but the claimant can ask the MRCC to extend the period. If a claimant refuses or fails to provide the information without a reasonable excuse, the MRCC may refuse to proceed with determining the claim until the information is received Medical examinations Where an acceptance of liability claim or a compensation claim has been lodged, the MRCC will have the power to require a person to undergo medical examinations. If a person refuses or fails to undergo a medical examination without a reasonable excuse, or obstructs a medical examination, the MRCC has the power to suspend compensation payments (except treatment) until the examination takes place. The MRCC will pay for the costs of medical examinations it has asked the person to attend and will also pay the cost of reasonable travel and accommodation expenses associated with attendance at such a medical examination Needs Assessments The MRCA empowers the MRCC to conduct an assessment of a person s needs where they have made a claim. The purpose of the Needs Assessment is to ensure that 4-87

88 Pension Officer November 2009: Repatriation Handbook the person receives all available assistance to which they are entitled under the Act. The MRCC may conduct a Needs Assessment as soon as a claim for acceptance of liability has been made. A Needs Assessment is mandatory before the MRCC pays any form of compensation. Protocols have been developed for the conduct of Needs Assessments. 7.8 Determination of claims MRCC not bound by technicalities The MRCA contains a provision modelled on section 119 of the VEA that requires the MRCC not to be bound by technicalities in considering, hearing or determining a claim or request and in making a decision. This means it must take into account any difficulties that for any reason lie in the way of ascertaining any matter due to the effects of the passage of time or the absence of, or deficiency in, relevant official records Standards of proof The provisions that relate to the standard of proof applicable to claims are modelled on section 120 of the VEA. The more beneficial beyond reasonable doubt standard of proof applies to claims for liability arising from warlike and non-warlike service. The balance of probabilities standard of proof applies to claims for liability arising from peacetime service. The balance of probabilities standard of proof also applies to the diagnosis of all conditions, the determination of the cause of death associated with a claim for liability and to all other matters in the MRCA Application of the Statements of Principles The Statements of Principles (SoPs) are used to determine issues of medical causation that are raised in claims for liability. In order for liability to be accepted for a particular kind of injury, disease or death, the claim will have to be upheld by the SoP applicable to the condition in question. The provisions that govern the application of the (SoPs) in the MRCA are modelled on sections 120A and 120B of the VEA. The Repatriation Medical Authority (RMA) determines the SoPs in respect of a particular kind of injury, disease or death based on the VEA definitions of injury and disease (which are also to be found in the MRCA) according to sound medicalscientific evidence as defined in subsection 5AB(2) of the VEA. The beyond reasonable doubt SoPs apply to claims arising out of warlike and nonwarlike service (section 338). The balance of probabilities SoPs apply to claims for liability arising out of peacetime service (section 339). Persons eligible to make a claim under the MRCA, organisations representing members covered by the MRCA and the MRCC have the right to seek RMA investigations and reviews of the SoPs and to appeal to the Specialist Medical Review Council. The latest SoP available at the time of either the determination, or subsequent review of a determination, in respect of a claim for liability is the SoP applied. This overcomes the problems raised in the decision of the Full Federal Court in Repatriation Commission v Keeley [2000] FCA

89 November 2009: Repatriation Handbook Pension Officer Determination of MRCC overriding SoPs The MRCA contains the power equivalent to section 180A of the VEA that will allow the MRCC to issue a determination that overrides the SoPs in certain circumstances. 8 Reconsideration and Review of Determinations 8.1 Overview The MRCA provides the choice of two separate avenues of appeal following an original determination by the MRCC (or the Service Chief in the case of rehabilitation for serving members). They are: review of the determination by the Veterans Review Board (VRB) and then the Administrative Appeals Tribunal (AAT); reconsideration of the determination by a MRCC delegate not involved in the original determination and then review by the AAT. The person is advised of their options regarding the appeal pathways when the original determination is made. The person s choice of pathway is binding once a person has lodged an application to the VRB or a request for MRCC reconsideration. In addition to reviews and reconsiderations of original determinations initiated by the claimant, the MRCC can initiate a reconsideration of a MRCC original determination and the Service Chief can initiate a reconsideration of a Service Chief original determination, provided that no decision reviewing the original determination has yet been made by the VRB or the AAT. A delegate not involved in the original determination must do the reconsideration. This reconsideration power is provided under section 347 of the MRCA and is similar to the Repatriation Commission s power to initiate a review of a VEA decision under section 31 of the VEA. 8.2 Notifying original determinations An original determination by the MRCC or Service Chief must be provided to the claimant in writing, specifying the reasons on which it is based and providing information on the reconsideration and review provisions that apply. Where a member was still serving at the time the claim was made for acceptance of liability for injury, disease or for compensation for permanent impairment, the MRCC must provide a copy of the determination and reasons for it to the relevant Service Chief. The MRCC must also provide the relevant Service Chief with a copy of a determination relating to a service death and the reasons for it, if the deceased was still serving at the time of death. 8.3 Determinations that can be reconsidered or reviewed There are a number of original determinations made under the MRCA that can be reconsidered or reviewed. These include, but are not limited to determinations about: liability for an injury, disease or death; 4-89

90 Pension Officer November 2009: Repatriation Handbook permanent impairment compensation; incapacity payments; payment of household or attendant care compensation; financial advice compensation; compensation for a member s death (other than education assistance for children which have separate review mechanisms); and rehabilitation. 8.4 Determinations that cannot be reconsidered or reviewed The following decisions cannot be reviewed or reconsidered under the MRCA: a determination on a person s needs assessment specifying which treatment path is to apply to the person (i.e. reimbursement of medical expenses reasonably incurred or treatment provided via use of the Gold or White Card); an MRCC determination about the benefits to be provided under the education scheme for children; an MRCC determination to change a VRB decision (with the consent of the claimant prior to the AAT decision); and a determination about suspension of compensation payments because of: failure to undergo a medical examination; or failure to undertake a rehabilitation program. For the full list of determinations that cannot be reconsidered or reviewed, see subsection 345(2) of the MRCA. 8.5 The VRB pathway The following is a summary of the steps that apply: Where the claimant has applied for a review of the VRB s determination to the AAT, the MRCC or Service Chief can vary that decision with the consent of the claimant. This will only happen where the claimant and the MRCC (or Service Chief) agree on what should be done to resolve the case. 8.6 The MRCC reconsideration pathway The following is a summary of the steps that apply: claim lodged; original determination by MRCC delegate (or Service Chief); 4-90

91 November 2009: Repatriation Handbook Pension Officer request for reconsideration lodged no more than 30 days from that the notice of the original determination is received by the claimant; determination by MRCC delegate; appeal to the AAT from the reconsidered determination within 60 days (AAT has discretion to extend this time to no more than 12 months). There are restrictions on the admissibility of evidence being lodged within 28 days of the AAT hearing date in certain circumstances. The MRCA contains provisions about recovery of a person s costs associated with the AAT application. 8.7 Legal aid for AAT applications and payment of costs Legal aid may be available for AAT review of a VRB decision involving warlike or non-warlike service subject to the merit of the claim, that is, whether the facts and the law could support acceptance of the claim. For AAT review of a VRB decision relating to peacetime service, legal aid may be available subject to the merit test as well as a means test on all the claimant s income and other priorities determined by the State Legal Aid Commission. If a person seeks an AAT review of a MRCC or Service Chief reconsideration, legal aid may be available subject to a merit test and a means test. Where the AAT has reviewed a MRCC reconsideration, the AAT can order the Commonwealth to pay some or all of the costs incurred by the claimant in relation to the AAT matter where the AAT has varied or set aside a determination and found in the claimant s favour. The AAT cannot order costs against the Commonwealth if the AAT is satisfied that the claimant failed to comply with a request of the MRCC to provide facts or information which, if provided, would have resulted in a more favourable decision by the MRCC. There is no provision for the award of costs for AAT matters where a person appeals a decision by the VRB. How to lodge a claim... MRC 27 The fact sheet explains the reconsideration and review mechanisms for decisions made under the Military Rehabilitation and Compensation Act 2004 (MRCA). 9 The Military Rehabilitation and Compensation Commission (MRCC) 9.1 Establishment The MRCA provides for the establishment of the MRCC. This is a statutory body similar to the Repatriation Commission. It has similar powers and functions under the MRCA to the Repatriation Commission under the VEA. Apart from the core business of case management, the MRCC has broader functions such as the promotion of research into the health of members and former members, 4-91

92 Pension Officer November 2009: Repatriation Handbook the prevention of injury and disease and rehabilitation of persons from injury and/or disease. Reporting arrangements are established to ensure that lessons learned on members health and welfare matters are shared between the Departments of Defence and Veterans Affairs, the MRCC and the Repatriation Commission. The MRCC will report annually to the Parliament through the Minister for Veterans Affairs. 9.2 Composition The MRCC comprises the following persons: the chair, who is the President of the Repatriation Commission; the deputy chair, who is the Deputy President of the Repatriation Commission; a third member of the Repatriation Commission nominated by the Minister for Veterans Affairs; a person nominated by the Minister responsible for the SRCA who is either a member of the Safety, Rehabilitation and Compensation Commission or engaged under the Public Service Act 1999 and performing duties in the Department administered by that Minister; and a member nominated by the Minister for Defence (either a member of the ADF or a civilian employee of the Department of Defence engaged under the Public Service Act 1999). The Chair and Deputy Chair are ex-officio members. The other members of the MRCC are appointed by the Governor-General on the recommendation of the Minister for Veterans Affairs. Appointments are for a period not exceeding three years and members hold office on a part-time basis. 9.3 Staff The Department of Veterans Affairs provides staff to assist the MRCC in the performance of its functions. 9.4 Delegations MRCC may delegate its decision-making powers to: a member of the MRCC; a member of the staff assisting the MRCC; a consultant of an employee of consultant to the MRCC; staff of the Department that deals with the matters to which the powers in question relate; or 4-92

93 November 2009: Repatriation Handbook Pension Officer an ADF member who deals with the matters to which the powers relate. Mostly, these delegations are to staff of the Department of Veterans Affairs. Military Rehabilitation and Compensation Commission (MRCC)... MRC 25 The fact sheet gives an overview of the function, powers and structure of the Military Rehabilitation and Compensation Commission. 10 Liabilities Arising apart from this Act 10.1 Overview This Chapter sets out the circumstances under which a person entitled to compensation under the MRCA can bring a common law action against the Commonwealth for the injury, disease or death and the effect of this on MRCA compensation; and the effect of damages recovered from a third party on compensation paid under the MRCA and the circumstances under which the MRCC may make a claim or take over a claim against a third party. The MRCA creates a statutory, no fault compensation scheme which is intended to replace the common law as a means of obtaining compensation for injury, disease or death due to ADF service. Consequently, there are some limitations on the circumstances under which common law action may be sought and limitations on what compensation can be paid where common law damages are sought. Common law damages may only be awarded if the court is satisfied that someone else was at fault in causing the injury, disease or death Common law action by members and former members A member or a former member (or the legal personal representative in the case of deceased members) can choose to sue the Commonwealth or another member at common law for damages for non-economic loss in respect of an injury or disease for which compensation is payable under the MRCA. However, such common law action cannot be taken if the member or former member has already been paid permanent impairment compensation under the MRCA for the injury or disease. If a person decides to make a claim for common law damages, they must notify the MRCC of this in writing no later than seven days after the day the common law claim was lodged. No permanent impairment compensation can be paid after the date the MRCC receives notification of the choice to sue at common law. Consequently, if the common law action is not successful, or the person is dissatisfied with the outcome of that action, they cannot subsequently apply for compensation under the MRCA for any non-economic loss suffered due to the injury or disease. 4-93

94 Pension Officer November 2009: Repatriation Handbook If common law damages are awarded (either by the court or through an out of court settlement of a claim), the claimant must notify DVA of the details in writing within 28 days of the day damages are recovered. The MRCA limits the amount of any common law damages a Court can award to $110,000 and there is then no entitlement to permanent impairment compensation under the MRCA for that injury or disease Common law action by a dependant of a deceased member A dependent of a deceased member is not prevented from suing the Commonwealth or another member in respect of a service death whether or not the deceased member had chosen to sue the Commonwealth for non-economic loss. If a dependant decides to make a claim for common law damages in respect of the member s death, they must notify the MRCC of this in writing no later than seven days after the day the common law claim was lodged. If the dependant recovers damages for the death, the dependant must notify the MRCC of the details within 28 days of the day the damages are recovered. The dependant will need to repay the Commonwealth the death benefits already paid under the MRCA and will not be entitled to further compensation for the death under the MRCA Common law action against a third party If a member or former member is injured, contracts a disease or dies as a result of MRCA service and a third party (someone other than the Commonwealth) appears liable to pay damages for that injury, disease or death, common law action can be taken against that third party. The plaintiff can be the member or former member, the legal personal representative of a deceased member or a dependant. The MRCC may also make a claim against the third party in the name of the plaintiff or take over the plaintiff s claim. If the plaintiff recovers damages from a third party, the plaintiff must notify the MRCC of the details within 28 days of the day the damages are recovered. The plaintiff will need to repay the Commonwealth the compensation already paid under the MRCA for the injury, disease or death and further compensation is not payable. Where a claim against a third party is made, or taken over by the MRCC, damages awarded are paid to the Commonwealth. The MRCC must then deduct an amount equal to the compensation already paid under the MRCA for the injury, disease or death plus any amount for costs paid by the Commonwealth in connection with the claim, before paying the balance (if any) to the plaintiff. The plaintiff is not entitled to further compensation for the injury, disease or death until the amount of MRCA compensation that would have been payable exceeds the amount of damages recovered. 4-94

95 November 2009: Repatriation Handbook Pension Officer 11 Miscellaneous 11.1 Overview This Chapter addresses administrative matters not addressed in other chapters of the MRCA Indexation The MRCA contains a similar provision to section 13 of the SRCA, providing indexation in accordance with increases in the CPI for the following payments: maximum weekly amount of permanent impairment compensation; the lump sum payment for eligible dependent children; the payment of costs for financial advice; the lump sum redemption threshold for incapacity payments; the payment for household services; the payment for attendant care; the maximum additional death benefit for wholly dependent partners eligible for compensation for a member s/former member s death; the periodic payment for wholly/mainly dependent children eligible for compensation for a member s/former member s death; the maximum lump sum payable to other dependants eligible for compensation for a member s/former member s death and the maximum payable to each individual; and the payment for funeral expenses. Indexation occurs annually on 1 July where there is a positive movement in the CPI and is based on the change in the CPI index number as at 31 December for the previous year and the year before that Obtaining and giving information MRCC delegates have specific information gathering powers based on sections 127, 128, 129 and 130 of the VEA. These include: section 405, which is modelled on section 127 of the VEA in relation to the obligation of persons to advise of changes in their circumstances which affect their eligibility for benefits under the MRCA; section 406, which is modelled on section 128 of the VEA and concerns the MRCC s powers to obtain information; 4-95

96 Pension Officer November 2009: Repatriation Handbook section 407, which is modelled on section 129 of the VEA about a person s obligation to provide information requested under section 406 even if it might incriminate them; and section 409, which contains provisions relating to information that can be disclosed to the Department of Defence, the relevant Service Chief and other persons/agencies Recovery of overpayments An overpayment of compensation is recoverable under the MRCA where it is paid as a consequence of false or misleading information or where it should not have been paid. The overpayment can be deducted from any compensation owed Recovery of overpayment to retired persons If a member or former member was a member of a Commonwealth superannuation scheme immediately before retiring, that person must, within 14 days after they retire, notify the MRCC of: their retirement and the retirement date; and the Commonwealth superannuation scheme of which they were a member immediately before they retired. An overpayment of incapacity payments or SRDP which occurs because the superannuation has not been taken into account, can be recovered from any superannuation owing to the member with the agreement of the fund administrator Special assistance The MRCC has the discretionary power to provide special assistance to a member, former member or dependant that is not available to the person under the MRCA or the VEA. This provision is similar to section 106 of the VEA Assignment, set-off or attachment of compensations The compensation payments under the MRCA are protected from being alienated in favour of a third party, except in the following circumstances: where the MRCC must deduct amounts to pay to the Commissioner of Taxation; where the amount is to repay an overpayment; or where there is an obligation under the Child Support Scheme Extraterritorial offences The MRCA includes an equivalent to Part 9, section 108 of the SRCA, which relates to the jurisdiction of courts with respect to extraterritorial offences against the MRCA committed outside Australia. 4-96

97 November 2009: Repatriation Handbook Pension Officer 11.9 Write-off or waiver of debts The MRCC has discretion to write-off or waive a debt. A write-off means that the debt is regarded as irrecoverable but may be pursued later. A waiver means the debt is no longer owed Payment of benefits into bank account The MRCA provides for the payment of compensation benefits into a bank account nominated by the entitled person Trustees Section 432 of the MRCA enables the MRCC to appoint a trustee to manage a person s compensation payments where: the person has a legal disability; or the person is under 18 and there is no person who has responsibility for them Regulations Section 439 contains the power to make regulations in relation certain compensation for cadets and declared members. Section 440 has a general regulation making power. 12 Glossary of Terms Administrative Appeals Tribunal (AAT). The AAT provides independent review of a wide range of administrative decisions made by the Australian government and some non-government bodies. This includes certain determinations made under the MRCA. For further information, see Chapter 8 of this Guide and the AAT s website Consumer Price Index (CPI). The CPI measures quarterly changes in the price of a basket of goods and services that account for a high proportion of expenditure by metropolitan households. This basket covers a wide range of goods and services, arranged in the following eleven groups food, alcohol and tobacco, clothing and footwear, housing, household furnishings, supplies and services, health, transportation, communication, recreation, education and miscellaneous. GARP. GARP is a disallowable instrument made by the Repatriation Commission under section 29 of the VEA. It is used to assess the extent of war or defence-caused incapacity and convert this to the rate of disability pension payable to a veteran under the VEA. Currently the 5th edition of GARP is being used. GARP M. GARP M is a modified version of GARP V. It is a disallowable instrument made by the MRCC under section 67 of the MRCA. It is used to assess the extent of a member s permanent impairment which enables the calculation of the amount of permanent impairment compensation payable to a member. GARP M assesses permanent impairment in the same way as GARP V assesses incapacity. 4-97

98 Pension Officer November 2009: Repatriation Handbook Gold Card. The Gold Card is the common name for the Repatriation Health Card For All Conditions. This card enables the holder to obtain health care benefits for all conditions, whether they have been accepted as related to service or not. Income Support Supplement (ISS). ISS is an income and assets tested pension payable under the VEA to war widow/ers on the ground of age or incapacity for work. It is also payable under the VEA to widowed partners eligible for the MRCA death benefit. MRCA Pharmaceutical Benefits Scheme. This Scheme is a disallowable instrument made by the MRCC under section 286 of the MRCA. It is based on the Repatriation Pharmaceutical Benefits Scheme established under the VEA. The scheme provides a wide range of pharmaceuticals for the treatment of Gold and White Card holders under the MRCA. MRCA Private Patient Principles. This document is a disallowable instrument made by the MRCC under section 286 of the MRCA. The MRCA Private Patient Principles are based on the Repatriation Private Patient Principles determined under the VEA. They contain the rules for providing private patient treatment to persons eligible for a White or Gold Card under the MRCA as private patients. This includes the rules about the provision of hospital treatment and specialist treatment. MRCA Treatment Principles. This document is disallowable instrument made by the MRCC under section 286 of the MRCA. The MRCA Treatment Principles are based on the Treatment Principles made under the VEA. They set out the circumstances in which, and conditions subject to which, treatment, social and domestic assistance may be provided for persons eligible for treatment under the MRCA. Repatriation Commission. The Repatriation Commission is a statutory authority responsible under the VEA for determining claims for benefit under that Act. It also advises the Minister for Veterans Affairs on the VEA s operation and administers the VEA subject to the Minister s control. Repatriation Medical Authority. The RMA is an independent statutory authority responsible to the Minister for Veterans Affairs. The RMA consists of a panel of five practitioners eminent in fields of medical science. Their role is to determine Statements of Principles (SoPs) for any injury, disease or death that could be related to military service, based on sound medical-scientific evidence. The RMA is supported by a secretariat of clerical, medical and research staff. For further information, visit the RMA s website Safety, Rehabilitation and Compensation Act 1988 (SRCA). The SRCA is the legislation under which rehabilitation, compensation and treatment is provided to Australian Government employees who suffer injury or disease as a result of their employment. It also provides compensation for their eligible dependants for workrelated death. This includes ADF peacetime service before 1 July 2004 and warlike and non-warlike service between 7 April 1994 and 1 July The DVA administers the SRCA as it relates to ADF service. 4-98

99 November 2009: Repatriation Handbook Pension Officer Statements of Principles. The SoPs state the factors which must or must as a minimum exist to cause a particular kind of disease, injury or death. The SoPs are disallowable instruments and they are binding on the various decision-makers. The matters of fact relating to an individual s claim, including the nature of service and any connection between eligible service and the factors in the SoPs, are still determined by the various decision-makers. Veterans Entitlements Act The VEA is the legislation under which compensation, treatment, some rehabilitation and income support is provided to veterans of the ADF and their eligible dependants for injury, disease or death related to service rendered before 1 July The VEA mostly covers veterans of the ADF with service in wars, warlike and non-warlike operations (including peacekeeping operations) but peacetime service between 7 December 1972 and 8 April 1994 is also covered. The VEA is administered through the DVA. For further information, visit the DVA website at Veterans Review Board. The Veterans Review Board (VRB) is an independent tribunal that exists to review decisions made by the Repatriation Commission under the VEA and decisions under the MRCA made by the MRCC and Service Chiefs. For further information, visit the VRB s website White Card. White Card is the common name for the Repatriation Health Card For Specific Conditions. This card enables the holder to obtain health care benefits for conditions for which treatment eligibility has been accepted. 4-99

100 Pension Officer November 2009: Repatriation Handbook Part C Military Compensation Contact List If you need more information contact your nearest Military Compensation or DVA office. The following telephone numbers may be used: From anywhere in Australia: National Toll Free number (from non-metropolitan areas only) A full list of DVA contact numbers and addresses of DVA Offices and VANs can be found on the DVA website at: