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26.7.2 Investigating and determining claims
In those cases where smoking is identified as a causal factor by the claimant when submitting their claim, or if medical evidence suggests that a history of smoking contributed to the development of the claimed condition, Delegates should request that claimants complete the “Cigarette Smoking Questionnaire” found at CLIK 26.7.5 which has been approved for use specifically in the assessment of DRCA claims. The questionnaire is used to assist in determining the circumstances during which the claimant commenced smoking and whether the habitual nature of the smoking occurred during a period of ADF employment. It will also indicate whether the claimant ceased smoking upon completion of their service.
The questionnaire is slightly different to the one currently used to determine claims under the VEA, insofar as we are not seeking to obtain information about the number of cigarettes or quantity of other tobacco products regularly or previously smoked by the claimant.
Generally, the date of injury for disease claims is as per the provisions of subsection 7(4) of the DRCA. In the case of smoking related claims this will generally be the date when the disease manifested itself.
In addition, the DRCA requires military employment to have contributed in a material degree (where the date of injury is prior to 13 April 2007) or to a significant degree (where the date of injury is on or after 13 April 2007) to the disease.
Considerations where a smoking-related condition manifests during previous Acts
The superseded Acts are:
The Compensation (Commonwealth Government Employees) Act 1971 (i.e. the '1971 Act') which operated from 1 September 1971 to the commencement of the SRCA on 1 December 1988.
The Commonwealth Employees Compensation Act 1930 (i.e. the '1930 Act') which only applied to ADF employees after an amendment commencing 3 January 1949 and it ceased 1 September 1971.
Commonwealth Employees Compensation Act 1930 (the '1930 Act')
In cases where a disease manifested itself during the currency of the 1930 Act (that is prior to 1 September 1971) Section 10 of the 1930 Act required that a disease be “due to the nature of the employee’s employment” before there could be liability to pay compensation for that disease (see CLIK Ch 21.3.4). In effect, this meant that the disease had to be an occupational hazard of service in the ADF. Diseases due to the effects of smoking would not necessarily qualify as an “occupational disease” for ADF members.
Compensation (Commonwealth Government Employees) Act 1971 (the '1971 Act')
The 1971 Act requires military employment to have contributed to the disease (see CLIK Ch 21.3.3)