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14.2 Denying Benefits Where There is No Current Entitlement
The duration of liability to pay compensation is dependent upon the duration of the effects of that medical condition. Where there are permanent effects, the liability continues indefinitely. Where on the other hand, the matter appears to resolve i.e. there has been a complete cure or a wound has completely healed and produces no current symptoms, liability should be denied under each of the sections that benefits are claimed.
There is, however, a conceptual difference between acceptance of Liability at the first instance following investigation of the original claim and ongoing liability to pay compensation or provide rehabilitation during the life of the client. Once 'initial liability' is accepted it can only be reversed in the rare circumstances outlined at 2.3.8. However, in most cases liability will continue but the client may have no entitlement to, for example, medical treatment or compensation, if at that particular time they are not suffering the effects of the accepted condition.
Aside from those cases where the condition is now 'cured', a “no current entitlement” determination may occur where a further non compensable condition overtakes the compensable one. For instance, this may be the case where liability had existed for a mildly damaged finger joint and subsequently that whole hand was crushed during post-discharge (non ADF) employment so that those same joints – and in fact all fingers on that hand – became immobilised.
A “no current entitlement” determination will be made under the relevant section that the employee is claiming under, for example a determination under s19 for “no current entitlement” to incapacity payments.
A “no current entitlement” determination may also occur in particular aggravation cases, i.e. where the underlying disease was emerging for independent, non-compensable reasons but the conditions of ADF service provided an accelerating or a triggering factor. This means a case where the onset of symptoms although inevitable had been brought forward, i.e. sooner than they would normally have occurred, had it not been for the influence of that employment.
This is often a reason for accepting schizophrenia cases, which are otherwise entirely endogenous, i.e. schizophrenia is a disease of uncertain cause but of assumed developmental and genetic origin, and which is destined to onset in early adulthood regardless of environmental influences. However, environmental influences may contribute to an early triggering of the disease.
In such cases – i.e. where the aggravation merely represents an acceleration of the disease – it can be seen that the employment related influence may be of limited duration. After a period of time (perhaps years), it may logically be asserted that the client would have been suffering from the disease, and at their current level of impairment, even if they had never joined the ADF.
The High Court of Australia rejected this approach in Darling Island Stevedoring and Lighterage Co Limited v Hankinson (1967). However, notwithstanding their Honour's foray into the theory of medical judgements, medical professionals are usually prepared to express a judgement on individual, specific cases, i.e. as to whether the employment-related aggravation is still a present factor in the clients current medical presentation.
Thus, in cases of long-term liability on the basis of an aggravation or acceleration of a disease, Delegates should seek to have the client medically reviewed by an appropriate specialist every 3 years, or 5 years at a maximum. The main object of that inquiry would be whether the effects of ADF service are diminishing or do not currently exists.