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Requirements to Claim for Compensation
Person required to take reasonable action to obtain compensation
If a person:
- is receiving, or eligible for a [glossary:compensation affected pension:] [glossary:(:][glossary:CAP:][glossary:):], and
- the person or the person's partner:
- is entitled to claim compensation for economic loss, and
- has not taken reasonable action to claim or obtain the compensation,
then the Commission may require the person or the person's partner to take action to claim the compensation. If the Commission does require the person or the person's partner to take reasonable action to claim or obtain the compensation then the pension is not payable to the person until they meet these requirements.
The person is considered to have taken reasonable action if they:
- lodge a claim with the employer or insurer,
- engage a solicitor to commence legal proceedings, or
- seek legal advice as to whether a claim for compensation can be successfully pursued.
Acceptable reasons for not claiming compensation
Even if a person may, in the Commission's opinion, be entitled to compensation, the Commission may not require a person to claim or receive compensation. Depending on the full circumstances of each case, acceptable reasons for a person not claiming compensation are:
- there is no enforceable claim for compensation,
- the veteran uses their statutory right contained in subsection 43(1) of the Safety, Rehabilitation and Compensation Act 1988 (SRCA) to apply to Comcare to request that a future amount of Military Compensation & Rehabilitation Scheme (MCRS) payment be forgone in favour of a payment under Part II VEA or Part IV VEA,
- the accident occurred many years ago and is now statute barred,
- legal proceedings are required but the veteran or partner cannot afford to engage a solicitor and is not qualified for legal aid,
- the injuries sustained will not result in the person or partner suffering a loss of wages, salary or loss of earning capacity, or
- there is a question of significant contributory negligence. This may occur where the person or partner caused their own injury, for example the person was intoxicated whilst on duty.
In any of these situations, the pensioner's claims must be verified before the Commission's discretion to require the person to pursue compensation is not applied.