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5.12 Additional Payment for Severe Impairment
Section 80 makes provision for severely impaired people to be considered for additional amounts of compensation, if maximum compensation is paid. Additional amount/s of compensation can be considered where all of the following criteria is met in relation to s80(1);
- The impaired person has been paid, or is entitled to be paid MRCA PI (for transitional clients, they must meet the 5IP threshold requirement at step 2(a) of Chapter 25 of GARP M), and
- The degree of impairment suffered constitutes 80 or more impairment points (for transitional clients this can be from a combination of MRCA, VEA and/or SRCA total impairment points as assessed at Step 1 of Chapter 25 of GARP M), and
- Maximum compensation is paid i.e. the impaired person must be in receipt of the maximum weekly rate (this may be, or have been converted to a lump sum amount). For transitional clients this can also be as a result of SRCA, VEA and MRCA contribution.
Once this criteria is met, section 80(2) specifies that the claimant is entitled to receive an additional lump sum payment for each wholly or partly dependent, eligible young person. The amount payable is indexed annually. The current amount can be found in the Comp and Support library under current payment rates.
This additional amount is payable for each person who was both an eligible young person and a dependant of the impaired person at the later of:
- the date determined by the delegate to be the date that the claimant's impairment constituted at least 80 IPs (i.e. the determination date); or
- the date on which the claim for liability was made; or
- where more than one injury or disease resulted in the person reaching 80 impairment points, the date on which the most recent claim for liability for one of those injuries or diseases was made.
For the purposes of s 80(2), a ‘dependant’ means any person mentioned in s 15(2) (eg, a child of the impaired person) who is wholly or partly dependent on the impaired person, or would be but for that person’s relevant incapacity (s 15(1)). ‘Eligible young person’ means a person who is under 16 or certain persons who are 16 or more but under 25 (broadly, persons receiving full-time education and not engaged in full-time employment or work) (s 5).
In summary, an impaired person is entitled to additional compensation under s 80 in respect of each child of that person, provided that the child is:
- an eligible young person at the time referred to in s 80(2) (the ‘relevant time’) – broadly, the later of the date of determination by the Commission that the impairment threshold was met or the date a relevant claim was made under s 319 of the MRC Act; or
- born alive after the ‘relevant time’ but conceived before that time (s 80(3)(a)); or
- adopted on or after the ‘relevant time’ but in respect of whom adoption proceedings were begun before that time (s 80(3)(b)).
Section 80(3) IVF consideration
The purpose of s 80 is to provide the impaired person with compensation to assist the person with the expenses associated with raising the children they have at the relevant time, as well as any child they might have (barring intervention of some kind) as a result of a pregnancy or adoption proceedings that commenced prior to the relevant time. The impaired person is not, however, entitled to assistance under s 80 in respect of any subsequent child they have where the child is conceived, or adoption proceedings commenced, after the relevant time.
Thus, there is a clear distinction between children of an impaired person who existed, or were on their way or growing into existence, at the relevant time, and children who might come later. The impaired person is entitled to compensation in respect of the former, but not in respect of the latter.
While the reason for this distinction is not made explicit in the MRC Act, it would seem to be because the impaired person should be taken to be compensated in respect of the circumstances they find themselves in at the relevant time (whether those circumstances include a child already born or a child on the way). In other words, it seems that the intention was that the impaired person not be placed in an inferior position merely because they have children or are expecting children (in the sense described above), which, at the relevant time, is a circumstance beyond their control.
It is of course a different situation where an impaired person chooses to have a child at a later date with the knowledge of their impairment (as the relevant circumstances are within the control of the impaired person). That is, the impaired person can be taken to comprehend the situation they are in at that time (including their financial situation), and the consequences of choosing to have a child (or additional children), and can make a decision accordingly.
Therefore, the Military Rehabilitation and Compensation Commission (MRCC) view of the meaning of ‘conceived’ in s 80(3)(a) of the MRC Act is the commencement of pregnancy, which, in the context of in-vitro fertilisation (IVF), broadly equates to implantation of the fertilised egg in the uterus. This interpretation is consistent with authority on the ordinary meaning of the term ‘conceived’, and is the most logical reading of the term for the purposes of s 80 of the MRCA. The MRCC made this determination based on advice from the Australian Government Solicitor (AGS).