C19/1997 DETERMINING COMPENSATION CLAIMS WHERE RMA HAS NOTIFIED S196G INVESTIGATION OF CONDITION | Compensation and Support Reference Library, Departmental Instructions, 1997

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C19/1997 DETERMINING COMPENSATION CLAIMS WHERE RMA HAS NOTIFIED S196G INVESTIGATION OF CONDITION

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DATE OF ISSUE:  18 MARCH 1997

DETERMINING COMPENSATION  CLAIMS WHERE RMA HAS NOTIFIED  S196G INVESTIGATION OF CONDITION

Purpose

This advice is intended to provide the latest information available to the Repatriation Commission on the status of several matters at the Repatriation Medical Authority (RMA) and the Specialist Medical Review Council (SMRC).  The progress of various appeals and applications to the different review bodies may have created some confusion for staff about the status of claims and what should be done with them.  This information is intended to bring staff up to date.

Current status of earlier advice DI B22/95

2. B22/95 (28 March 1995) advises that claims can still be rejected where the Repatriation Medical Authority (RMA) has notified of a formal s196G investigation but that a s31 should be raised after the decision is made.  The advice is still correct.  CCPS is due to have this facility available in March 1997.

3.Appendix A updates the information concerning those conditions previously advised as under s196G investigation and those that are currently under investigation.  It includes information on the status of current applications for review to the Specialist Medical Review Council (SMRC).  Matters being looked at by the SMRC do not cause a s31 to be raised.  Only SoP issued by the RMA can affect the decision to be made on any claim.  If a SMRC decision results in a change to a SoP then a new application must be made.

Prostate cancer and smoking

4.The VVFA (VVAA (NSW Branch Inc)) originally appealed to the Federal Court.  The decision of that Court was that the SMRC decision was a legislative not an administrative one and therefore application for merits review did not accrete to the Federal Court.  Following that decision the VVFA lodged an appeal to the State Supreme Court in New South Wales.  That matter is just commencing the preliminary proceedings.  In the mean time the original decision of the RMA stands as the appropriate Statement of Principles (SoP)to apply to all Prostate cases.

5.At the same time as the Federal Court matter was being dismissed the RMA concluded a formal investigation of prostate cancer and the risk from a “high fat diet”.  The result of that investigation was that an amendment was issued, SoP (Nos 191and 192 of 1996).  There was no change to the contents of the earlier Prostate Cancer SoP concerning smoking.  They are decisions of the RMA to amend the earlier SoP and therefore become the relevant SoP to be applied to all claims.  All the factors contained in the amendment can be the subject of an application for review to the SMRC.

6.The VVFA, on behalf of a veteran, lodged a further application with the SMRC for a review of the new SoP.  The application had no status until the expiry of 15 sitting days in the Parliament.  That date was 6 March 1997.   A further five applications have been lodged on behalf of other veterans.  The Repatriation Commission has been advised by the SMRC of the existence of the further applications for review.

7. This development does not affect claims processing.  Those matters in the process of being determined by the Commission, the Veterans' Review Board (VRB) or the Administrative Appeals Tribunal (AAT) can all proceed to conclusion.

·Cases that can be accepted according to the new SoP should continue to be accepted.

·Cases that are not based on a smoking claim but would otherwise be refused should be determined in accordance with the new SoP.

·Cases where the claim is advanced that smoking was the causal connection to prostate cancer can still be determined by the Repatriation Commission in accordance with the new SoP.

·Cases where a s31 action was opened can be determined in accordance with the new SoP.

8.Matters at the VRB and the AAT will be determined by those Tribunals. Advocates at VRB or AAT proceedings should not agree with applicants to delay the determination of those matters.  Should the RMA ever issue a new SoP a new claim should be lodged by the veteran or widow.

9.It is not expected that the VVFA case concerning prostate cancer will be heard for two years or more (that is the current waiting time for cases in the NSW Supreme Court).  I understand that the SMRC is currently considering whether it will proceed with a new review of prostate cancer or wait until the result of the legal action in the State Supreme Court is known.  What the Court or the SMRC does cannot affect the determination of cases.  They should proceed to be determined by the relevant decision maker.  Only the publication of a new SoP by the RMA can change the factors that can be accepted as causal for prostate cancer, or any other condition.

Hypertension and Stress

10.The Repatriation Commission has been advised that a formal review under s 196G by the RMA will be commenced.  That review will specifically consider stress as a cause of hypertension.  A conference is planned along the lines of the Symposium on Prostate cancer and therefore the result may be 12 months or more away.

11. The issue of stress and hypertension has been in front of the SMRC for some time.  The Repatriation Commission has been advised that the applicant for review has now asked that the matter not proceed until the formal investigation by the RMA into “Stress and Hypertension” is concluded.

·Cases that can be accepted according to the Hypertension SoP (Nos 83 and 84 of 1995) should continue to be accepted.

Cases that are not based on a stress claim but would otherwise be refused should be determined in accordance with the current SoP.

·Cases that advance stress as the causal connection to hypertension can still be determined by the Repatriation Commission in accordance with the current SoP and rejected and a s31 action opened.

Diabetes mellitus

12. The SMRC has advised the Repatriation Commission that this review is being readied for review.  The panel is likely to hear the matter in May or June 997.  The issues being considered by the SMRC on the basis of the applications for review are:

·smoking as an aggravation of diabetes and

·the consumption of cassava and manioc (by Commandos in Timor during WII) as a cause.

13. There is no effect on the determination of claims by the application to the SMRC for a review.

·Cases that can be accepted according to the Diabetes mellitus SoP (Nos 47 and 48 of 1996) should continue to be accepted.

·Cases that are not based on smoking as an aggravation of diabetes or consumption of manioc or cassava as a cause but would otherwise be refused should be determined in accordance with the current SoP.

·Cases that advance smoking as an aggravation or the consumption of manioc or cassava as the causal connection to diabetes mellitus can still be determined by the Repatriation Commission in accordance with the current SoP.

·Cases where a s31 action has been opened can be determined according to the current SoP.

14.That connection is not the subject of the current application for review but it may be raised during the review by SMRC.  The Council has maintained in previous declarations that any application for review opens the whole question of causation and aggravation to the Council.

Determination of claims when RMA is conducting a formal investigation.

15. The RMA can conduct investigations as a result of an application under s196E.  Formal applications are notified in the Commonwealth Gazette.  Since SoP are legislative instruments, not administrative ones, all cases can continue to be determined whatever the result.  The current SoP continues to apply until the moment a new SoP replaces it.  The courts have consistently held that to delay a matter because of the possibility of a change in the law is insufficient for a decision maker to not proceed to a determination.

16. No claim need remain undetermined because of

·an informal review by the RMA of an existing SoP; or

·a review by the SMRC of an existing SoP; or

·an appeal to a higher Court from the SMRC decision on an existing SoP.

17.When one SoP replaces another the date of effect on a claim remains unchanged.   This is not a reason for delaying the determination of a claim until the result of a review is known.  It is expected that the AAT and VRB will share that view.  Advocates and claims assessors should not agree to delay in determination on this ground.

  1.          Conditions where the RMA has gazetted a notice of an investigation under s196 G are

·hypertension and stress

·ischaemic heart disease and stress

·cardiovascular accident and stress

·psoriasis and stress

·osteoarthrosis and trauma to the relevant joint

·diverticular disease and irritable bowel syndrome.

19. These conditions should therefore be determined and either accepted or rejected.  Those claims which have been rejected, and where a specific contention relates to the causal factor to be investigated by the RMA, should have a s31 action commenced.

SMRC reviews

20.Matters that are the subject of an application for review by the SMRC do not result in a s31 being raised against claims for that same condition.  Such claims should have been rejected on the basis of an existing RMA SoP and if no RMA investigation has been notified should be complete.  Should an SMRC decision require the RMA to investigate a contention nothing affects decisions that are made by claims assessors until the RMA issues a new SoP.  An SMRC direction does not equate to a formal investigation under s196G.

More advice

21.DI B22/95 should be referred to at the same time as this DI.  The standard letters remain the same.  CCPS will allow this s31 process to proceed according to the rules laid down by these instructions.  Kevin Penna in Sydney can provide more detail on the content of the CCPS program.

22.Further advice on the standing of any of these reviews will be sent as it is known.  Contact with National Office on these matters should be directed to Neil Bayles (06 289 4713)as the Director (National Operations Policy) or John Douglas (06 289 6485) as the Director (Disability Compensation Policy).

W.R. Maxwell

Branch Head

Disability Compensation Branch

    March 1997

Attachment A

CONDITIONS NOTIFIED FOR INVESTIGATION BY RMA UNDER SECTION 196G OF VEA THAT HAVE BEEN COMPLETED.

Carcinoma of the prostate

Contention:General investigation (1994).  Smoking (1996). Trauma to the prostate(1996).

New SoP issued, Nos 191 and 192 of 1996 effective from 18 December 1996.

Gastro-oesophageal reflux disease

Contention: Effects of smoking and alcohol.

New SoP issued, Nos 121and 123 of 1995 effective from 26 April 1995.

Osteoarthrosis

Contention:Effects of microtrauma on major weight bearing joints through occupational or recreational physical activity.

New SoP issued, Nos 352 and 353 of 1995 effective from 11 October 1995.

Cervical Spondylosis

Contention: Effects of micro trauma through occupational and/or recreational physical activity.

New SoP issued, Nos 161 and 162 of 1996 effective from 18 December 1996.

Lumbar Spondylosis

Contention: Effects of micro trauma through occupational and/or recreational physical activity.

New SoP issued, Nos 165 and 166 of 1996 effective from 18 December 1996.

Thoracic Spondylosis

Contention: Effects of micro trauma through occupational and/or recreational physical activity.

New SoP issued, Nos 163 and 164 of 1996 gazetted 18 December 1996.

NOTE:  A new SoP on Spondylolisthesis and Spondylolysis (Nos 15 and 16 of 1997 has been issued. These conditions are not the same as “spondylosis”.

Carcinoma Of The Liver

Contention: Effects of use of tobacco products.

SoP “Malignant neoplasm of the liver”, Nos 171 and 172 of 1996 gazetted 18 December 1996.

Carcinoma Of Kidney Parenchyma

Contention: Effects of use of tobacco products.

Sop issued for “Adenocarcinoma of the kidney”, Nos 107 and 108 of 1996 gazetted 28 August 1996.

CONDITIONS NOTIFIED FOR INVESTIGATION BY RMA UNDER SECTION 196G OF VEA.

Osteoarthrosis

Contention: Effects of trauma to the relevant joint through occupational and/or recreational physical activity.

SMRC decision expected in March 1997.  RMA meeting scheduled for June 1997.

Diverticular disease of the colon

Contention:  Effect of irritable bowel syndrome on causation of diverticular disease.

RMA meeting scheduled for June 1997.

Ischaemic Heart Disease

Contention: Effects of psychosocial stress.

RMA meeting scheduled for June 1997.

NOTE:  The earlier RMA investigation was for “acute and chronic stress” as a result of which new SoP Nos 140 and 141 of 1996 were issued and were effective from 9 October 1996.

Hypertension

Contention: Effects of psychosocial stress.

RMA meeting scheduled for June 1997.

Cardiovascular Accident (CVA)

Contention: Effects of psychosocial stress.

RMA meeting scheduled for June 1997.

Psoriasis

Contention: Effects of psychosocial stress.

RMA meeting scheduled for June 1997.

CONDITIONS CURRENTLY SUBJECT TO REVIEW BY SMRC.

Osteoarthrosis

Contention: Microtrauma

A declaration by the SMRC is expected in late March or early April.

Prostate Cancer (Second time)

Contention:Effects of smoking.

The SMRC is not expected to meet until well into 1997.  Any declaration is not expected until 1998.  Decisions should continue to be made.

Diabetes mellitus

Contention:Effects of ceasing smoking and

consumption of cassava (manioc).

First meeting of the SMRC not expected until June/July 1997

Hypertension

Contention: Effects of psychosocial stress.

SMRC decision not expected until late 1997 or early 1998.  Applicant has asked that the SMRC wait until the RMA investigation completed.