No. 12 Determination of Liability for Aggravation

Purpose

The purpose of this instruction is to clarify the circumstances in which liability for aggravation of a condition can be accepted under the Military Rehabilitation and Compensation Act 2004 (MRCA).

Background

The main aggravation head of liability for injur — y/disease under para.27(d) of the MRCA require — s that:

the injury or disease:

1. was sustained or contracted while the person was a member rendering defence service, but did not arise out of that service; or
2. was sustained or contracted before the commencement of a period of defence service rendered by the person while a member, but not while the person was rendering defence service;

and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service rendered by the person while a member after he or she sustained the injury or contracted the disease.

A — nother aggravation head of liability under s.30 is in similar terms but applies only where “a sign or symptom of the injury or disease was ... aggravated”.

Paragraph 27(d) and s.30 are mutually exclusive, and one must not be used in preference to the other, except as set out in this instruction.

What is meant by “aggravation”

“A — ggravation” means that an existing injury or disease has been made worse by d — efence service, not that it has simply become worse. In other words, i — t does not include natural deterioration, nor does it include a situation whereby a progressive condition increases in gravity by running its ordinary course.

Use of Statements of Principles in determining liability for aggravations

Statements of Principles (SoPs) are used in determining liability on the basis of para.27(d).  SoPs are not used in det — ermining liability on the basis of s.30.

It is important that the correct aggravation head of liability is used. This will depend on the medical evidence relating to the worsening of the pre-existing injury or disease.  Section 30 should never be used instead of para.27(d) simply because liability will be rejected under the relevant SoPs.

Which head of liability should be used in determining liability for aggravation – s.27(d)

Paragraph 27(d) should be used where the underlying pathology of the pre-existing condition is aggravated by d — efence service; i.e., that the aggravation involves more than just the worsening of signs or symptoms.

To ascertain whether or not the underlying condition has been aggravated, claims assessors will require advice from the member's treating doctor or specialist.

Example: A member has a pre-existing Achilles tendonitis condition.  On entry to the ADF he is required to participate in long runs and pack walks.  Within a couple of days the Achilles tendonitis condition is worse as a direct result of the extra running and walking activities. Advice is sought from the member's treating specialist, who confirms that the underlying condition has been aggravated and not just the signs and symptoms of the condition.  In this circumstance liability should be assessed on the basis of para.27(d).

Which head of liability should be used in determining liability for aggravation – s.30

Section 30 should be used where the signs or symptoms of a pre-existing condition are aggravated by defence service.  It is possible to have signs or symptoms of a condition aggravated without any effect on the underlying condition.  Each case must be assessed on its own merits.

To ascertain whether or not it is the underlying condition or the signs or symptoms that have been aggravated, the claims assessor must ask the member's treating doctor or specialist, whether it is the underlying condition that has been aggravated or whether it is the signs and symptoms that have been provoked.

Example: A member joins the ADF.  He had experienced episodes of asthma in his childhood, but this had resolved with age. On joining the ADF the member is posted to the Army recruit unit at Kapooka.  As a result of the cold evenings common to the area, the member experiences asthmatic symptoms, and is discharged from the Army as a result.  On return to his home the asthmatic symptoms resolve and he does not experience further episodes.  In this instance, the member's underlying asthmatic condition has not changed.  Rather, the symptoms of asthma were brought on by his locatio — n in an area with cold evenings, and liability should be assessed on the basis of s.30.

Is the condition temporary or permanent?

Some aggravations may be permanent, while others will have temporary effects.  This should never be taken into consideration when determining which section liability is to be assessed under.

W — hile, in general, cases involving the aggravation of signs and symptoms will result in a short term or temporary aggravation, this will not always be the situation.  Therefore each case mus — t be assessed on its own merits.

Likewise, cases involving the aggravation of the underlying condition will not always be permanent.  Even if the aggravation is of a temporary nature, liability can only be accepted on the basis of para.27(d), and SoPs used as appropriate, if the underlying condition has been aggravated.

Where para.27(d) is the appropriate head of liability, the permanency of the aggravation should only be a consideration if a SoP factor explicitly requires a permanent worsening.

The determination on liability should therefore never state whether or not an aggravated condition is of a temporary or permanent nature.  Nor should any determination st — ate in advance a period during which compensation will be available.  Once liability is accepted, it is accepted once and for all unless the decision is reviewed (see Stateline re Cease Effects Determinations and the decisions of the Federal Court in Australian Postal Corporation v Oudyn [2003] FCA 318).

Compensation and benefits

Once liability has been accepted, whether on the basis of sections 27 or 30, the member's access to other benefits under the MRCA can be assessed.  T — he client's service injury/disease must satisfy the legislative requirements for the compensation or benefit that is being claimed.

For example, incapacity payments will only be made for a period that the member is incapacitated for service or work because of the accepted aggravation.  P — ayments will cease once the member is no longer incapacitated wholly or partly by the aggravation.  On the other hand, Permanent Impairment (PI) will be payable if it is considered that any impairment resulting from the aggravation will continue indefinitely, is stable and meets the minimum threshold for payment of PI.  In both cases, the legislative requirements will apply regardless of the section under which liability has been assessed.  Liability for the aggravation will continue even if the member is not eligible or has ceased to be eligible for the compensation or benefit.

Under both sections the whole of the condition, not just the aggravated comp — onent, becomes a service injury/disease once liability is determined for the aggravation.  Therefore an aggravation renders the whole of the condition compensable until such time as the aggravation has ceased to exert a medical effect.  The only exception to this is in the determination and payment of Permanent Impairment which may only be paid for the portion of the aggravation.

Contact

Any queries concerning this instruction should be addressed to Brenda Franklin on extension 16 — 426 or Luke Brown on extension 1 — 6095.