Military Compensation SRCA Manuals and Resources Library

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library

Death Handbook

Version 3.2

6 August 2014

In this handbook

The SRCA Death Handbook contains the following chapters:

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook

Overview

The SRCA and its predecessors all provide benefits in cases where the death of an employee results from Commonwealth employment. For the purposes of establishing a nexus with employment, death may be considered a special sub-set of injury, and the business rules outlined in the 'Liability' chapter of this Handbook should be applied to determine whether the death is compensable.

This Handbook provides guidance with respect to deaths occurring under the SRCA – and also to deaths under the 1971 and 1930 Acts, although claims for deaths under previous Acts are, in practice, rare.

The main SRCA provisions for compensating work-related deaths are contained in Section 17, with secondary entitlements at Sections 18 and 16.

  • Section 18 provides for reimbursement of funeral costs, up to a maximum specified sum.
  • Section 16 requires the Commonwealth to meet any medical costs for treatment that preceded the death, and also contains a provision for the Commonwealth to meet the costs of transport of the body.

Section 17 of the SRCA provides the principal death benefit. Section 17 'applies where an injury to an employee results in death' and provides for a single lump sum which is to be divided among 'dependants' of the deceased. 'Dependant' is a term defined by the Act. In brief, it means a family member who was, at the time of death, dependent for financial support on the deceased. If there is no such person reliant on the employee for economic support, no lump sum compensation is payable.

On occasion there may be several 'dependants' who were all financially 'dependent' upon the deceased to a greater or lesser degree. Where there is one or more person who was wholly dependent on the deceased, only those persons are entitled to compensation. Where there were no persons wholly dependent on the deceased, those who were partly dependent may be entitled.  The Act also provides that a spouse living with the employee immediately before the death is deemed to be 'wholly' dependent regardless of independent income. This means that in practice, most SRCA lump sums are paid to the spouse and, where relevant, divided between the spouse and any wholly dependent children.

However other cases may be less clear cut and Subsection 17(8) gives delegates the discretion to divide and disburse the lump sum as appropriate in the circumstances. Accordingly, this Handbook contains guidelines for the equitable division of lump sums between those entitled to share in them. Under those guidelines for example, where the claimants include a wholly dependent spouse and children, the spouse receives no less than 75% of the lump sum and the share of the dependent children varies between 10% and 25% according to the number of those children.  The current rates of compensation payable under the SRCA can be accessed via the following link     

Section 17 also provides for a small fortnightly payment to be paid for dependent children up to the age of 16 years (or to age 25 if a full-time tertiary student with some limitations). These amounts are indexed against inflation and advised each year via a Comcare Jurisdictional Policy Advice.

In 1997, following the 'Inquiry into Military Compensation arrangements for the Australian Defence Force', dependants of deceased ADF employees became entitled to an Additional Death Benefit (ADB) payable under the Defence Act 1903 (Defence Act). This ADB amount is a supplement to the SRCA lump sum and is only payable if the SRCA lump sum is also payable. SRCA delegates in DVA are therefore also delegates of the Defence Act for the purposes of administration of the ADB.

For deaths occurring since 10 June 1997, the Defence Act provides an additional lump sum to the compensation payable under the SRCA, giving a higher figure to the spouse. In addition, there is a lump sum component payable in respect of each financially dependent child.

Note that neither the SRCA (nor any of its predecessors) nor the Defence Act provide for a widow's pension. Only the VEA and the Military Rehabilitation and Compensation Act 2004 (MRCA) provide a widow's pension in respect to the death of an ADF member. Some individuals may be entitled to claim for the employee's death under both the SRCA and the VEA. However, the decision to accept the SRCA 'Death' lump sum has the potential to end any entitlement to the VEA widow's pension. In those dual entitlement circumstances, the claimant must be offered a clear choice of scheme and be made aware of the consequences of that choice.

A dependant of a deceased employee is permitted to institute a legal action against the Commonwealth for the death of that employee. A dependant is of course also free to conduct a 'third party' action i.e. a civil case against a person other than the Commonwealth. However, in most cases legal action and SRCA compensation are mutually exclusive options. That is, in most cases conclusion of a legal action for the death – whether against the Commonwealth or a third party – cancels all entitlements under the SRCA. There are exceptions to this rule which are set out in Chapter 9 of this handbook.

If the lump sum has already been paid, the whole amount (or the amount awarded by the Court, whichever is less) must be repaid. Section 49 of the SRCA also affects the amount of lump sum where there is more than one eligible dependant, and one or more of those dependants elect to pursue common law action – i.e. sue the Commonwealth – in lieu of claiming their lump sum portion. If the other dependants nevertheless choose to accept payment under S17, the amount payable to them is reduced by a formula. This formula takes into account the amount awarded to that dependant(s) who chose legal action. The purpose of this provision is to ensure that a group of dependants cannot collude to maximise their gains by 'case splitting' between court awards and compensation benefits.



Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/overview

Ch 1 Legislation and Definitions

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-1-legislation-and-definitions

1.1 Compensation for injuries resulting in Death - S17 of the SRCA

Section 17 commences: '17(1) This section applies where an injury to an employee results in death...', and Section 17 is in fact the main source of entitlements for a work related death.

 

Note that the Section 17 entitlement relates to 'an injury' which results in death. As defined by Section 4, 'an injury' means a compensable condition, i.e. one that arose out of or in the course of Commonwealth employment or a disease to which that employment had made a material contribution (or, for a disease with a deemed date of injury on or after 13 April 2007, to which that employment had made a significant contribution). The required nexus between employment and death, is therefore exactly the same as that which applies in all other initial liability cases.

 

The words 'injury' and 'results in' should not be taken to mean that the section relates only to physical injuries which only prove fatal at a later time. Section 17 in fact applies to all deaths, i.e. whether the death was the end-result of a long disease process, the short-term consequence of severe injuries or from an instantaneous accidental death etc.

 

Section 17 death benefits represent compensation specifically for the death and are payable only to specified 'dependant(s)' or a dependant's guardian. The purpose of these payments is to recompense specified persons formerly financially dependent upon the deceased, notionally for the loss of that economic support. Note that it is the dependant who is entitled, not the deceased employee. S17 monies do not form part of the deceased's estate.

However, for clarification, on the rare occasion when a dependant dies soon after the death of the deceased employee, should a dependant who is entitled to S17 benefits die prior to their claim being submitted it is permissible under S55 and S111 for a claim to be submitted after the dependant's death by their representative or executor on behalf of the dependant's estate. See also http://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/liability-handbook/ch-6-claims-compensation/64-claims-made-after-death-claimant

 

Section 17 provides for:

 

  • A lump sum

Subsections 17(3) and (4) prescribe the maximum $ amount which applies. However that amount is updated annually (on 1 July) in line with the Wage Price Index, pursuant to Section 13 (which provides for the update of all SRCA rates).

  • Compensation payable to a 'prescribed child' up to age 16 (or 25 if full-time student)

The quantum of this weekly payment is (as for the lump sum, above) updated annually on 1 July. The meaning of 'prescribed child' is defined by S4 and discussed at 1.18.  The review and cessation of this weekly payment is discussed at 4.11.

 

The only other SRCA benefits specific to Death are provided by S16 and S18 (reimbursement of medical expenses and compensation for funeral expenses respectively). However these represent reimbursements of costs associated with the death, rather than as compensation for loss of the deceased's financial support. Reimbursements under S16 and 18 may be paid to persons other than a dependant (i.e. it is to be paid to whoever actually bore the expense).

Rates payable under the SRCA

All current SRCA rates are in CLIK and can be accessed via the following link     

 

 


 

 

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-1-legislation-and-definitions/11-compensation-injuries-resulting-death-s17-srca

1.2 Additional Death Benefit - Defence Act 1903

The Additional Death Benefit ('ADB') was initiated by the 'Inquiry into Military Compensation arrangements for the Australian Defence Force' in 1997.  The ADB is provided through Defence Determination 2009/70 under the Defence Act 1903 and not by the SRCA. However, Military, Rehabilitation and Compensation Commission (MRCC) delegates have also been formally declared as Defence delegates for the purposes of the Determination.

The ADB applies only to those compensable deaths that occurred after 10 June 1997. It is a supplementary benefit and is only payable where money is also payable under S17 of the SRCA.

The ADB provides:

  • An additional lump sum (i.e. supplementary to that provided under the SRCA)

This supplementary lump sum has two components. The first is a lump sum which is paid to the spouse of the deceased member, while the second is a lump sum payable for each dependent child.  Both lump sums are indexed annually.

Where the dependent child is under 18, both of these Defence Act lump sum components are payable to the deceased member's 'spouse' (unless the spouse does not have primary responsibility for the care of the child). If a dependent child is 18 or over, the dependent child ADB is payable to that child.  If there are dependent children but no spouse, only the Defence Act's 'child's portion' is payable. Where in such a case a child is under 18 the 'child's portion' is paid directly to the child's guardian for the immediate use for the child's welfare or alternatively paid to the child itself (if a student over 18).

If there is neither spouse nor dependent children, the ADB is not payable This is the case even if the S17 SRCA lump sum is payable to some other category of dependant.

There is no time limit in which the Defence Act Additional Death Benefit can be claimed by an eligible person, nor is there a one-off election or choice in relation to this entitlement. 

 

  • Changes to SRCA death compensation arrangements from 13 May 2008

The Employment and Workplace Relations Act 2009, which received Royal Assent on 3 June 2009, increased the amount of SRCA dependant payments for deaths occurring on or after 13 May 2008 and changed the method for indexing these payments.

As a result, the total lump sums payable under section 17 of the SRCA were increased.

Periodic payments to the children of deceased members and former members were also increased.

 

Example calculation of Spouse benefits for death occurring prior to 13 May 2008 (no dependent children).

Spouse receives:

$219,023.62 (maximum s17 payment as at 1 July 2007)

plus

$263,184.20 (ADB as at 1 July 2007) minus $219,023.62 (maximum s17 payment as at 1 July 2007) = $44,160.58

=

$219,023.62 (s17 of SRCA) + $44,160.58 (ADB) = $263,184.20

  • Changes to the ADB payment arrangements with effect from 13 May 2008

In November 2009, a subsequent Businessline (TRIM reference 09210765E) was issued in response to Defence Determination 2009/70, which changed the amount of ADB compensation under the Defence Act.  The changes were necessary due to the fact that the increased death benefits from 13 May 2008 (as per section 17 of the SRCA) exceeded the maximum ADB amount payable under the Defence Act.

The effect of Determination 2009/70 was that ADB payments would be made as fixed lump sum amounts in addition to the SRCA payment, rather than the previous arrangement of paying the difference between the SRCA amount and the ADB amount.

Example calculation of Spouse benefits for death occurring after 1 July 2009 (no dependent children).

Spouse receives:

$429,304 (maximum s17 payment as at 1 July 2009)

plus

$47,395.78 (ADB as at 1 July 2009)

=

$476,699.78

Any dependent child would recieve a proportion of the lump sum under section 17 of the SRCA (this may be a zero share), a periodic payment and the ADB dependent child lump sum.

  • Reimbursement of costs of obtaining financial advice regarding investment of ADB

The purpose of this provision is to facilitate the spouse/guardian's access to professional financial adviser(s) regarding the investment of the lump sum.

These costs can be reimbursed up to a maximum figure, which is indexed on 1 July each year.

 

  • Access by any 'dependent children' to the Veterans' Children Education Scheme (VCES)

This is a service established under the Veterans' Entitlements Act 1986 (VEA) and administered/funded by DVA. Guidance and counselling services within the VCES are available by way of a determination made under subsection 118(2) of the VEA. However, the funding of educational services is not part of the assistance.


 

 

 

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-1-legislation-and-definitions/12-additional-death-benefit-defence-act-1903

1.3 For S17 SRCA and ADB: the date of death is significant, not date of injury

The Death benefits payable under both the SRCA and the Defence Act are indexed annually, whereas. the rates of death benefits payable in respect of deaths under former Acts are not indexed (they cannot be indexed as the Acts are now repealed.)

The date of the death of the member or former member therefore determines the maximum amount which is payable, irrespective of when the claim was determined.

The same principle applies to cases of protracted illness leading to death – that the critical date for determination of a death benefit under S17 is the date of death itself. As mentioned in subsection 1.2, the ADB is only payable in cases where the death occurred after 10 June 1997.

For example:

Suppose a client had contact with asbestos during service under the 1930 Act, was diagnosed with asbestos related lung disease in 1987 (under the 1971 Act), liability was admitted in 1989 (under the SRCA), there was eventual emergence of mesothelioma in 1996 and death from that disease in March 1998. There is then no claim by the family for the death until 2002. This client's dependant(s), at the date of death, are entitled to be paid for his death at those rates current in March 1998 under S17 of the SRCA. Neither Schedule 1 of the 1930 Act nor S43 of the 1971 Act are relevant to the death. In addition, as the death had occurred after 10 June 1997, the ADB would also be payable.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-1-legislation-and-definitions/13-s17-srca-and-adb-date-death-significant-not-date-injury

1.4 Other compensation: claimed and determined but not paid prior to the death of a member or former member - S111 of SRCA

Section 111 of the SRCA provides that where an amount of compensation for injury or disease has been assessed and determined but not paid prior to the death (for instance, a permanent impairment lump sum, a back-payment of incapacity benefits or treatment costs, etc) this entitlement is not cancelled by the death. The money must still be paid and forms part of the estate of that deceased person.

Delegates should pay any amounts of compensation still outstanding (i.e. for the injury or disease only) to the client's designated executor or legally appointed administrator of the estate and not to any other person including dependants (unless they are the executor or administrator of the estate) and those purporting to have a claim on the deceased's estate.

If there is outstanding compensation for injury or disease owing to a person who dies intestate and there is no other person entitled to claim the deceased's estate, the money would be repaid to the Commonwealth. Alternatively, a delegate may reverse the original determination that compensation was payable, by means of a 'reconsideration on own motion' under S62 of the SRCA.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-1-legislation-and-definitions/14-other-compensation-claimed-and-determined-not-paid-prior-death-member-or-former-member-s111-srca

1.5 Other compensation: not claimed or claimed but not determined prior to death

Sub-section 55(1) provides that:

“Where a person who is entitled to make a claim for compensation under this Act dies without making a claim, a claim may be made by the person's personal representative.”

In this context, the reference to a claim for compensation can be read as either a claim for a particular benefit or a claim for 'initial liability' leading to claims for various forms of compensation.  These claims may relate to the injury that caused the death or to another service-related injury.

The deceased may have been entitled to but not have claimed compensation for medical expenses, incapacity or permanent impairment payments.  For details of how to manage such claims, refer to the Medical Treatment, Incapacity and Permanent Impairment Handbooks

Sub-section 55(2) provides that:

“A claim is not affected by the death of the claimant after the claim was served.”

Thus, a claim that has been submitted before a person's death is still to be processed.  The person's death does not negate the claim.

Whether the claim is made by the person's legal representative following the death or is still to be determined after the death, to the extent possible, the claim should be handled in a similar fashion to other claims.  There may of course be complications arising because the claimant is no longer alive e.g. it is no longer possible for the claimant to attend a medical examination.  However, every effort should be made to reach a decision on the basis of the information available.

If it is not possible to do so, for example because the medical specialist does not have sufficient information about the injury to provide information necessary to make a determination, the claim will need to be rejected.

Where the claim is accepted, section 111 applies – see 1.4 for further information.



Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-1-legislation-and-definitions/15-other-compensation-not-claimed-or-claimed-not-determined-prior-death

1.6 Reimbursement of funeral expenses (to a max benefit) - S18 of the SRCA

Section 18 provides that in cases of a compensable death, the Commonwealth is liable to pay or contribute to the cost of the funeral.

The amount payable is, '..as Comcare considers reasonable..' but up to a maximum amount which is also indexed on 1 July each year.

Funeral costs are driven by the personal preferences – and the cultural or religious orientation – of the deceased employee's family. In practice, delegates should therefore avoid judging whether the costs of the funeral are 'reasonable' or not. The delegate's only action should be to pay 100% of the costs of any funeral where those costs are less than the maximum allowance, and pay only that maximum $ figure for any funeral which exceeded those limits.

The S18 reimbursement of funeral costs is paid 'to the person who paid the cost of the funeral or, if that cost has not been paid, to the person who carried out the funeral'. Thus, the S18 payment is made independently of any payment made under S17 and may be made to a different person, i.e. depending on who paid for the funeral. The S18 payment does not need to be incorporated into the same Determination as that which establishes the entitlements under S17. However, a determination that the deceased's accepted condition resulted in their death must be made before any funeral benefits can be paid.

The Claim for compensation for Funeral expenses and/or Death Benefits for Dependants of deceased members and former members of the Australian Defence Force” form (D9182 in the forms section of the intranet and DVA internet site) is to be used for claiming funeral expenses.

What constitutes a 'funeral'?

"Funeral" is not defined in the Act. Therefore, any range of genuine memorialisation acitivies are compensable, provided that the Department is not paying more than the maximum amount across the actiivities or ceremonies in totality.

Multiple Claimants

A payment will generally be payable only once for each accepted death.  However, this payment can be split between multiple claimants if more than one person incurred a cost connected with the funeral, as long as the maximum payment is not exceeded.

Eligibility under more than one Act

Where a person has dual eligibility under the VEA and SRCA, there is nothing in the SRCA that precludes payment of a funeral benefit under both Acts.  However, subsection 18(2)(b) of the SRCA requires the delegate, in determining the amount payable, to have regard to the amount paid for the cost of the funeral under any other Commonwealth legislation.  This being the case, the delegate should reduce the amount payable for the funeral by the amount of VEA compensation paid, unless the cost of the funeral exceeds the statutory limit for compensation payable under s18 of the SRCA (in which case up to the maximum amount may be paid).

Subsection 15(5) of the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004 states that if a person has dual eligibility for funeral benefit under either the VEA or SRCA, as well as the MRCA, then the benefit is to be paid under the MRCA only.

Note that funerals of persons who were full time serving members at the time of death, are conducted at the ADF's expense. This is a condition of service and delegates should not be involved in making a determination under S18 in those cases.


 

 

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-1-legislation-and-definitions/16-reimbursement-funeral-expenses-max-benefit-s18-srca

1.7 Reimbursement of costs of transport of the body - S16 of the SRCA

Subsection 16(9)(b) allows reimbursement of the costs of transport of the body of an employee who died in compensable circumstances to 'a hospital or suitable place, or a mortuary'.

Generally, this subsection should be interpreted liberally. There may be more than one journey involved prior to delivery to an undertaker for the funeral/burial. Delegates should approve payment for any reasonable sequence of moves.

Deaths overseas

Since WW2, the bodies of serving ADF members who died whilst serving overseas have been repatriated to Australia by the ADF at the ADF's expense. This is not expected to change.

However Subsection 16(9)(b) has been used at least once in the past, to assist the relatives of a client to repatriate the body of a discharged ADF member who died of a compensable disease whilst overseas on holiday. This precedent can be followed in the very rare instances in which it may recur, however it should not be applied to the cases of clients who were in fact permanent or long term residents overseas. Nor should proposals involving exhumations of existing overseas burials be contemplated.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-1-legislation-and-definitions/17-reimbursement-costs-transport-body-s16-srca

1.8 Compensation for Death - S43 of the 1971 Act

This item refers to actual DEATHS which OCCURRED DURING the currency of the 1971 Act.

On the rare occasions that a claim for a death before 1988 is received, the provisions of the 1971 Act are (except for the $ amounts payable) very similar to those of the SRCA:

  • Section 43 of the 1971 Act is the analogue of S17 of the SRCA and provides compensation for the death in similar terms;
  • lump sum compensation [S43(3)(a)] is payable only where there are 'dependants' [S43(2)] who were also 'dependent' on the deceased for economic support all of which is defined [S5(1)] in terms identical to those used in S17 of the SRCA;
  • there is a similar distinction between dependants who are wholly and those partly dependent [S43(3) and 43(4)]. Those wholly dependent are the principle beneficiaries [S43(3)(a)] but those partly dependent may, at the delegates discretion, share in the lump sum according to their losses in those cases where there are none wholly dependent [S43(4)(a)];
  • children who were wholly or partly dependent receive weekly compensation

    [S43(5) to 43(8)];
  • if the child's payments cease before the total amount paid is less than a certain specified amount, the child is paid a small lump sum to top-up the total benefit to that specified level;
  • Medical costs associated with the fatal injury are payable under S37 of the 1971 Act and may be made to the person incurring the costs or the provider;
  • Funeral costs are payable under S44 of the 1971 Act and may be paid to the person incurring the cost or the provider.

The 1971 Act has of course been repealed but S124 of the SRCA requires that the deaths that occurred during its currency continue to be governed by its provisions. While the 1971 Act was current, it updated the maximum amounts payable in respect of death etc. annually, in line with the consumer price index. However the 1971 Act benefits have not been capable of update since that Act was repealed in 1988.

Late claims for those deaths that occurred during the currency of the SRCA are of course paid the SRCA benefit which applied in the year in which the death occurred.

However for 1971 Act deaths claimed under the SRCA, the current policy is to pay all such claims at the last rate declared under the 1971 Act (i.e. the rate current on 30 November 1988), regardless of the year of death.

This means that all 'late' 1971 Act deaths are now paid at the same maximum rate i.e.

Death lump sum S43(3)(a)

$59,980

Dependent child payment

$24.00 per week

Minimum level, total child payments

$2,400.00

Maximum payment, funeral expenses

$1,550

Details of how these or some lesser amounts are to be determined and divided between those entitled, are set out at Chapter 5 of this Handbook.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-1-legislation-and-definitions/18-compensation-death-s43-1971-act

1.9 Compensation for Death - S9, 9A, 10 and 'Schedule 1' of 1930 Act

This item refers to actual DEATHS which OCCURRED DURING the currency of the 1930 Act rather than injurious events or initiation of diseases which eventually resulted in death during the currency of a later Act.

On the very rare occasions that a claim is received, the 1930 Act provided benefits in respect of accidental injuries (S9), 'travel' injuries (S9A) and diseases (S10) as set out in 'The First Schedule' to that Act.

This 'First Schedule' provided for deaths (as a special subset of 'injuries') as follows:

  • In the case where there are 'wholly dependent' dependants, a lump sum of $12,000.
  • In the case where there are no wholly dependent persons but there are partly dependent dependants, a lesser lump sum of an amount at the delegate's discretion, upon consideration of what is 'reasonable' and 'proportionate to the loss' but not to exceed $12,000.
  • A weekly payment to each dependant child, of $2.80 per week up to the age of 16.

Note that these amounts represent the final indexation of entitlement i.e. that amount which was current at the time of the repeal of the 1930 Act in September 1971. It is current policy to pay only the above amounts, i.e. most beneficial amount possible under that repealed Act, rather than the amount actually current at the time of a death i.e. if in a year prior to 1971.



Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-1-legislation-and-definitions/19-compensation-death-s9-9a-10-and-schedule-1-1930-act

1.10 Compensation under S17 of SRCA Not Payable Where No Dependants

S17(2) of the SRCA provides that:

'Subject to this section and Sections 16 and 18, if the employee dies without leaving dependants, compensation is not payable in respect of the injury'

  • 'Subject to....Sections 16 and 18..' means that these sections are exempt from S17(2)'s requirement that payment not be made other than to a 'dependant'. Reimbursement of medical expenses associated with the death (S16) and reimbursement of funeral costs (S18) are of course payable directly to the person who incurred the costs or performed the service, and does not require existence of a dependant.

The definition of 'dependant' is discussed below at 1.11

  • The scheme of the Act is to provide compensation for the notional, 'deemed' economic loss that the death represents to a defined 'dependant'. Persons who are either not defined 'dependants' and/or who wish to pursue compensation for emotional injury or for any non-economic inconveniences allegedly caused by the death, should be told to seek legal advice with respect to a legal action against the Commonwealth. (See 9.1 re: non-applicability of S44 in cases of Death.)

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-1-legislation-and-definitions/110-compensation-under-s17-srca-not-payable-where-no-dependants

1.11 What is a 'Dependant'?

Section 4(1) defines 'dependant' as follows:

'Dependant' in relation to a deceased employee, means:

a)the spouse, parent, step-parent, father-in-law, mother-in-law, grandparent, child, stepchild, grandchild, sibling or half-sibling of the employee, or

b)a person in relation to whom the employee stood in the position of a parent or who stood in the position of a parent to the employee,

being a person who was wholly or partly dependent on the employee at the date of the employee's death.

And in respect to that last clause about a dependant necessarily being wholly or partly dependent on the employee:

'Dependent' means dependent for economic support.

In short, a dependant is an individual within a defined degree of kinship with the deceased, and who was also dependent (either wholly or partly) upon the deceased for financial support at the time of death.  That is, it is not sufficient for a person to have been in one of the relationships specified in the definition of 'dependant'.  In addition to being in one of those relationships, they must also have been wholly or partly dependent on the deceased for economic support on the date of death.

There is no provision for future dependency other than in those circumstances where there is an unborn child identified and accepted as belonging to the deceased employee.

Changes made to definition of' 'dependant' by Same-Sex Relationships (Equal Treatment in Commonwealth Laws-General Law Reform) Act 2008

This amending Act, which commenced on 10 December 2008, inserted definitions of the following terms into the SRCA, thereby changing the meaning of the term 'dependant':

  • child and step-child (see 1.17);
  • de facto partner (see 1.21.3);
  • parent which is defined by reference to the definitions of 'child' as follows:

parent: without limiting who is a parent of a person for the purposes of this Act, someone is the parent of a person if the person is his or her child because of the definition of child in this section.

  • step-parent which is defined as follows:

Step-parent: without limiting who is a step-parent of a person for the purposes of this Act, someone who is a de facto partner of a parent of the person is the step-parent of the person if he or she would be the person's step‑parent except that he or she is not legally married to the person's parent.

To the extent that the meanings of these terms have changed, they only apply to payments made under the SRCA on and from 10 December 2008, irrespective of when the death occurred and in respect of lump sum benefits only apply to deaths which occurred on or after that date.  See:1.21 in relation to dependent partners and 1.17 in relation to dependent children.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-1-legislation-and-definitions/111-what-dependant

1.12 What Constitutes Partly or Wholly Dependent for Economic Support?

It will not be necessary for many of the persons listed as possible 'dependants' by Subsection 4(1) to actually demonstrate whole or partial dependency for economic support. That is because many dependants will be deemed to have been wholly dependent by virtue of their circumstances (see 1.13). However, where the person is not deemed to be wholly dependent, they need to demonstrate either whole or partial dependency on the deceased for economic support.

In its simplest or basic form, economic support and maintenance would equate to the amount of financial assistance (money) needed to provide the necessities of life to the recipient.  The relevant amount would vary on the facts of the case because people have different standards of living.  A practical approach may be to consider the financial contribution provided consistently over a period of time towards the total cost of the dependant in maintaining the necessities of life at the standard of living enjoyed.  The simplest example is where a dependant relied on the deceased person for 100% of their economic support.  Whilst not determinative, this will be a persuasive indicator that the dependant was wholly dependent.

Economic considerations are one of many indicators of dependence, and will not constitute conclusive proof.  However, they may be taken into account to assist the decision-maker in obtaining an overall view of a claimant's circumstances and for determining the likelihood and degree of a claimant's dependence.

The fact that economic support and the extent of any such dependency is not something that can readily be codified was clearly enunciated by Chief Justice Barwick in Kauri Timber Co (Tas) Pty Ltd v Reeman 128 CLR 177, a High Court case, where he said:

"Somewhere between the extremes of the provision of bare necessities and the receipt by the wife of any advantage not provided by her husband there must be a line, no doubt vaguely defined and difficult of precise or even approximate definition or description, which marks off the difference between expenditure which denotes and expenditure which denies dependency."

The case of Kauri Timber Co is the authority that the dependent person may be independently employed but still qualify as wholly dependent, depending on how that income was used.  If independent income was not used for the dependant's own maintenance or support (ie it was disposable income or used merely to improve their quality of life), they are likely to remain wholly dependent.  The relevant question is whether or not the independent source of income made the dependant less than wholly dependent.  It is not relevant that the independent income could have lessened their dependence on the deceased person.

The importance of examining the facts of each case is emphasised by the following extract from the AAT decision in Lambroglou and Australian Telecommunications Commission [1989] AATA 713:

In attempting to determine for the purposes of this application whether the Applicant was a dependant and if so, whether she was wholly or partly dependent upon the deceased, no truer words have ever been spoken than were by Mason J in Aafjes v Kearney (1976) 8 ALR 455 at 463:

"As often happens in the field of workers' compensation where the questions are primarily questions of fact, the decisions are not notorious for their uniformity. Consequently it is not an illuminating experience to explore the cases in any detail."

Barwick CJ in Aafjes deals with the issue of dependency at page 456 by stating:

"... the question of dependence or no dependence, whole or partial, is a question of fact. It has been said to be so in many authorities by distinguished members of the House of Lords. It cannot be turned into a question of law by the citation of authorities."

In my view the numerous authorities dealing with the manner in which dependency is determined clearly demonstrate that a court or a tribunal should look at actual facts...”

Note that the economic link between two individuals must be in the nature of support and must be relied upon by the recipient. It is not sufficient that the deceased employee made sporadic gifts of money (or goods of value) that the recipient did not need for 'support' or were of such an irregular nature that the recipient could not rely on those gifts for continuous sustenance.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-1-legislation-and-definitions/112-what-constitutes-partly-or-wholly-dependent-economic-support

1.13 Spouse and Prescribed Children Resident with Member are Deemed to be Wholly Dependent

Subsection 4(5) of the SRCA says:

For the purposes of this Act, a person who, immediately before the date of an employee's death lived with the employee and was:

a)              the spouse of the employee (see 1.21), or

b)              a child of the employee, being a prescribed child (see 1.18),

shall be taken to be a person who was wholly dependent on the employee at that date.

This means – notwithstanding the usual meaning of 'dependant' – spouses and 'prescribed' children of the deceased are deemed to be 'wholly dependent' on the employee provided that the spouse or child was resident with the employee at the date of death.

That is, even if, for example, the partner was in receipt of earnings or other income which they used partly or wholly to support themselves economically, and even if this independent income exceeded that of the employee, the spouse would be considered to be wholly dependent.  Similarly, even if the prescribed child of the member had an independent source of income, the fact that they had been living with the deceased at the time of death automatically entitles them to the benefits that flow from being wholly dependent.

It should be noted that a child who is not living with a separated spouse but who is maintained in a boarding school at the employee's expense, should be deemed to be living with the employee, notwithstanding that child's long periods of absence from the employee's household.

In practice, a child living separately from an employee is usually one living with a spouse or former spouse separated from (and/or divorced from), that employee. Where there is joint custody/access arrangements such that the child spends 50% or more of his/her time with the employee, delegates should accept that the child still 'lives with' the employee for the purposes of S4(5).

It is important to distinguish in the case of this deeming provision between those to whom it applies i.e. to the partner and prescribed child of the deceased and those to whom it does not apply ie. to other dependants such as the deceased's mother or father or to other children within the member's household (see 1.14).

When applying 4(5), delegates should not exclude partners and children of serving ADF members posted to ships at sea for lengthy periods, deployed overseas or 'in the field' for major exercises etc. It is also common for ADF members to accept 'unaccompanied' postings to locations within Australia, for various reasons.

In cases where this 'residency' matter is in dispute in relation to an ADF member who was serving at the time of death, the delegate should take into consideration whether the ADF had accepted that a 'spousal' relationship existed for the purposes of housing arrangements, allowances, leave arrangements etc.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-1-legislation-and-definitions/113-spouse-and-prescribed-children-resident-member-are-deemed-be-wholly-dependent

1.14 Other Persons Resident with Member before death

Whether or not dependants, other than the spouse or prescribed child of the member, were living with the deceased immediately before the death, those dependants are not deemed to have been wholly dependent on the basis that they had been living with the deceased.  They may, however, be deemed to have been so dependent under subsection 4(4) of the SRCA or may be found on the facts to be so dependent.

For example, children of the employee's household, other than children 'of the employee' (for example, where the employee stood in the position of parent to the child), are not 'deemed' by Ss4(5) and therefore, unless deemed by Ss4(4), need to establish their state of dependency separately i.e. on the facts. That is, whether they had been dependent upon the employee for economic support. The proof of such a child's dependency is related, to a large degree, to the dependency of the child's guardian adult on the employee.

  • For instance, if a male member had at the time of the death, been living with his spouse and infant daughter in the household of a divorced sister who herself had young children, his infant daughter would be a prescribed child who was also wholly dependent upon him. However, his sister's children, although meeting the bald definition of 'prescribed child' and also living with the member, would not be deemed to have been dependent for economic support upon him, and may or may not meet the definition of 'dependant' and may or may not share the lump sum benefit with other dependants.
  • On the other hand, if the divorced sister had been living in the member's household and the member had been supporting his sister (or alternatively directly contributing to the upkeep of her children), and if the member had stood in the position of parent to the children, those 'prescribed children' would be at least partly dependent upon him and may be entitled to a share of the lump sum payment, .

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-1-legislation-and-definitions/114-other-persons-resident-member-death

1.15 Certain persons Deemed to be Wholly or Partly Dependent

Subsection 4(4) of the SRCA provides that:

For the purposes of this Act, a person shall be taken to have been wholly or partly dependent on an employee at the date of the employee's death if the person would have been so dependent but for an incapacity of the employee that resulted from an injury.

The provision at 4(4) would generally apply where the employee formerly – i.e. when in good health – supported one of the family members named in the definition of 'dependant' at S4(1) but had to cease that financial support due to loss of income or additional expenses occasioned by the effects of a compensable ailment (i.e. usually, but not necessarily, the condition which eventually proved fatal).

In such a case, that family member who had formerly been supported when the client was financially able, would be deemed to have remained wholly or partly dependent at the time of death.

This deeming provision, unlike the deeming provision described in 1.13 above, applies to all dependants to whom subsection 4(4) applies, not just to partners and prescribed children of the deceased.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-1-legislation-and-definitions/115-certain-persons-deemed-be-wholly-or-partly-dependent

1.16 How to determine whether a person was wholly or partly dependent

Where the partner or prescribed child of the member was not living with the member at the time of death, it is quite likely that the partner or child was either partly dependent or not dependent at all.   However this is not necessarily the case and there may be cases where the partner or child had been relying either wholly or partly on financial support from the deceased for their living expenses.

In determining whether a partner or child who was not living with the member was wholly or partly dependent on the deceased, each case has to be considered in light of the individual circumstances that applied at the date of the death (see 1.12).  The same applies to an “other” dependant, such as the deceased's father or mother, irrespective of whether they were living with the member or not.

In making the determination, delegates need to consider all relevant information such as bank statements or other records or proof of regular payments by the deceased for the economic support of the person or records of other financial support.  Alternatively, court orders etc which demonstrate the deceased's legal liability to make regular payments may provide some evidence of economic support.  Account also needs to be taken of any income received by the person claiming to have been economically dependent.

However, irrespective of payments having been made to a person by the deceased or income received by that person, care must be taken not to make any assumptions about the extent of dependency simply on the basis of those payments or that income.  In addition to the existence of such payments or income there would need to be indications that the person was actually relying on those payments or that income to support themselves economically, either wholly or partly - see 1.12.

This reliance might be evidenced, for example, by the fact that a person's rent or mortgage repayments and their grocery bills were paid for out of the account into which the deceased had been depositing money.

In determining the extent of a person's dependency on the deceased, no account can be taken of the fact that a person was in receipt of certain Commonwealth income support payments – see 4.4.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-1-legislation-and-definitions/116-how-determine-whether-person-was-wholly-or-partly-dependent

1.17 Who is a 'child/stepchild of a deceased member' for the purposes of the SRCA?

Until the commencement of the Same-Sex Relationships (Equal Treatment in Commonwealth Laws-General Law Reform) Act 2008 on 10 December 2008, the SRCA did not define the term “child of the employee”.  That Act inserted definitions of both 'child' and 'stepchild' into section 4(1) of the SRCA.

Although those terms were not defined previously, and the terms 'son'/'daughter' and 'step-son'/step-daughter' were often used in their stead, both before and after 10 December 2008, the terms 'child' and 'step-child' as used in the SRCA were and are relational terms indicating that a person is, at law, the son/step-son or daughter/step-daughter of another person.  The person's age has no bearing on whether they are in the required relationship.  The person's age is only significant where they are required by the Act to be both the child/step-child of a member and a prescribed child (see 1.18)

Since 10 December 2008 the term 'child' has been defined as follows:

child: without limiting who is a child of a person for the purposes of this Act, someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975 (FLA).

The words “without limiting who is a child of a person for the purposes of this Act” in the definition of 'child' make it clear that the definition of that term in the FLA does not replace, but expands the generally understood meaning of that term which is:

  • the biological son or daughter of the member provided that the person has not been adopted by another person.

On the basis of the definition of child in the FLA, the following are also, for the purposes of the SRCA, considered to be the child of a member or former member – note that this list is not exhaustive:

  • a child adopted by the member and his or her spouse or de facto partner whether of the same or opposite sex.
  • a child adopted by either the member or his or her spouse or de facto partner whether of the same or opposite sex with the consent of the other.
  • a child declared by the Family Court to be the child of a member (the Family Law Court may under section 69VA of the FLA, decide the issue of parentage.  If the Court makes a declaration about parentage, that declaration is conclusive evidence of parentage for the purposes of all laws of the Commonwealth.)

The following may also, as outlined in the Family Law Act 1975 (FLA), in certain circumstances, be the child of a member:

  • a child born as a result of artificial conception procedures (section 60H of the FLA);
  • a child born under surrogacy arrangements (section 60HB of the FLA.

Where a delegate is considering a claim from a person claiming to be the child of a deceased member and the child is known to have been conceived using artificial conception procedures or under surrogacy arrangements, the matter should be referred to the discussion line for advice.

Since 10 December 2008, Section 4(1) of the SRCA has defined 'stepchild' as:

stepchild: without limiting who is a stepchild of a person for the purposes of this Act, someone who is a child of a de facto partner of the person is the stepchild of the person if he or she would be the person's stepchild except that the person is not legally married to the partner.

The ordinary meaning of 'stepchild' is a 'child of a husband or wife by a former union'.  According to that meaning, the child of one member of a de facto couple (whether in a same-sex or opposite-sex relationship) could not be considered to be the stepchild of the other member of the couple.  However, the definition of 'stepchild' in the SRCA means that members of de facto couples whether of the same or opposite sex can now have stepchildren.

On the basis of the definition of step-child in the SRCA, the following are considered to be the step-child of a member or former member:

  • the child of the member's de facto partner;
  • the child of the member's husband or wife.

This means that it is possible for a person to be both the 'child' of one person and the 'step-child' of another person.  It also means that a person cannot be both the 'child' and 'step-child' of the one person; that is, the two terms are mutually exclusive.

Example

John and Mary have a daughter, Susan. John and Mary separate and John enters into a de facto relationship with Julia.  Susan becomes Julia's 'stepchild', but remains Mary's 'child'.

How the new definitions apply to children of members who died prior to 10 December 2008

Where a person would be the child/step-child of a member (or a variation of that term, such as grandchild) under the new definitions but would not have been considered to be in that relationship under the earlier legislation, the new definition may still be relevant even though the death occurred prior to 10 December 2008.  Where the deceased's child/step-child was wholly or mainly dependent on the deceased immediately before the death and on 10 December 2008 is a 'prescribed child' periodic payments will be payable while the child or step/child continues to be a prescribed child.  The change in the definition does not entitle such a person to any lump sum benefits.

Example

Stephen and Bruce were in a same-sex relationship from June 2003.  Bruce had previously been married and had a child, Derek who was born in January 2003.  Stephen was a member of the ADF and was killed in a defence-related accident in May 2004.  At the time Stephen was killed, the SRCA did not recognise either Bruce or Derek as dependants of Stephen.  Therefore, until the same-sex changes commenced on 10 December 2008 no death benefits were payable to either of them.

However on 10 December 2008, with the change in the definition of 'child' to include the child of a person's same-sex partner, Derek became a 'child of an employee' (of Stephen) for the purposes of the SRCA.  As a result, because Derek was wholly dependent on Stephen at the time of his death, he is now entitled to weekly payments under subsection 17(5) until he ceases to be a prescribed child.  However, as no lump sum death benefits are payable in relation to deaths which occurred prior to 10 December 2008, neither Derek nor Bruce are entitled to a lump sum benefit under subsection 17(3).

If there are any queries about how to apply these new definitions to death compensation claims in respect of deaths occurring prior to 10 December 2008 those questions should be referred to the discussion line for advice.

All children claiming dependant status must produce a copy of their birth certificate. In most cases, this will assist in proving parentage.  It also, in addition to proving the identity of the claimant, shows whether the person complies with the age requirements of the 'prescribed child' definition (see 1.18).

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-1-legislation-and-definitions/117-who-childstepchild-deceased-member-purposes-srca

1.18 Who is a 'Prescribed Child' for the Purposes of the SRCA?

Section 4(1) of the SRCA defines a 'prescribed child', thus:

4(1) 'prescribed child' means:

a)a person under 16, or

b)a person who:

(i)is 16 or more but under 25

(ii)is receiving full time education at a school, college, university or other educational institution, and

(iii)is not ordinarily in employment or engaged in work on his or her own account.

Being a prescribed child has no significance of itself.  In the context of death benefits it is only relevant to whether the child of a deceased member is entitled to a weekly payment (see 4.10) and to whether a person's child can be deemed to be wholly dependent because they were living with the deceased immediately before the death (see 1.13).  Otherwise, it is sufficient to be entitled to death benefits if a person who was wholly or partly dependent on the deceased was their 'child'.

Note that:

  • dependants under 16 remain 'prescribed children' regardless of their situation re: education or employment and a person over 25 can not be a 'prescribed child' under any circumstances
  • between 16 and 25, 'prescribed child' status depends on the receipt of full time education at a recognised institution (on-the-job vocational traineeship with a potential employer would not be acceptable)
  • a 'prescribed child' under 25 who had previously surrendered that status by leaving education, may subsequently re-qualify as 'prescribed' – i.e. by again leaving work and taking up a full-time tertiary course
  • the phrase 'engaged in work on his or her own account' means that delegates should not exclude children who at the date of death had part time employment during a period of full time study from receiving lump sum payments or the weekly payment under S17(5). This also includes working or helping out part time in the family business or who perform unpaid work on the family farm, etc. These individuals, although they may be considered to be working, are not earning on their own account.

Persons over the age of 16 who are alleged to be Prescribed Children must demonstrate:

a)That they are under the age of 25 – a copy of the birth certificate is required from all children claiming any sort of death benefit, but particularly Ss17(5).

b)That they are enrolled full-time at a school, college, university or other educational institution – a copy of the enrolment documents is required to substantiate this.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-1-legislation-and-definitions/118-who-prescribed-child-purposes-srca

1.19 What is a 'Dependent Child' for the ADB?

The Additional Death Benefit (ADB) provided under the Defence Act 1903, is regulated by Defence Determination 2009/70. This Determination entitles 'dependent children' which it defines as follows:

Dependent child, for a member, means a child of the member who is wholly or partly dependent on the member for economic support and:

a)is under 16, or

b)is 16 or more but under 25, and

(i)is in full-time education at a school, college, university or other educational institution, and

(ii)is not ordinarily in employment or working on the child's own account.

It can be seen that this definition has been directly derived from the SRCA definition of a 'prescribed child', except that:

  • The child must be a 'child of the member'
  • The child may be either wholly or partly dependent on the member to receive the full ADB entitlement, i.e. there is no discretion to exclude or pay a lesser ADB amount in respect to a child who is only partly dependent. (For the division of the ADB between persons having charge of dependent children, see 4.15 and 4.12.)

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-1-legislation-and-definitions/119-what-dependent-child-adb

1.20 Children of the Employee Born after the Death of the Employee

Subsection 4(6) of the SRCA says:

4(6) For the purposes of this Act, other than Subsection 17(5), a child of a deceased employee who was born alive after the employee's death shall be treated as if he or she had been born immediately before the employee's death and was wholly dependent upon the employee at the date of the employee's death.

Where the posthumous child is also the child of the employee's bereaved partner, nothing as offensive as proof of paternity should be required. The relationship is to be held to prove paternity. However a birth certificate will still be required in the same way as it would be, for a child already living at the time of the death. That this certificate shows a live birth within nine months of the employee's death is all that is required.

However this provision needs to be read together with the following interpretations:

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-1-legislation-and-definitions/120-children-employee-born-after-death-employee

1.20.1 Posthumous children conceived by IVF

Where a child is conceived by a member's partner using IVF procedures undertaken prior to a member's death and using the member's genetic material, subsection 4(6) applies to that child, if born alive after the member's death.

Where the child is conceived by a member's partner using IVF procedures undertaken after a member's death and using the member's genetic material, delegates should refer the matter to the discussion line for advice.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-1-legislation-and-definitions/120-children-employee-born-after-death-employee/1201-posthumous-children-conceived-ivf

1.20.2 Posthumous extra-marital children vs children of a relationship

The Act, in providing that any 'child of the employee who was born alive after the employee's death' is to be held to be 'wholly dependent upon the employee' in fact creates an anomaly if that child is not also a child of the employee's spouse.

Taking Ss4(6) literally, a child from a casual sexual encounter or the child of a relationship that ended before the employee's death, who just happens to be born after the death of the employee is deemed by virtue of that late birth alone, to be wholly dependent on the deceased. This appears inequitable in that such a child might, depending on the circumstances of the case, if (by chance) born before the death, be entitled to partial support payments or none at all.

For instance, a child of the employee's marriage born before the death but living apart from the employee with the mother might, depending on the circumstances, be considered to be only partly dependent for economic support. A posthumous baby born to a mother neither wholly nor partly supported by the employee (nor living with him), would not be entitled to any compensation had the employee lived. Nevertheless, on a literal reading of the Act that extra-marital posthumous baby or the posthumous baby living apart from the deceased at the time of death is deemed to be 'wholly dependent'.

It appears that the intent of the provision at Ss4(6) is only to ensure that a posthumous child of a spouse (which the SRCA assumes to be living with the employee) would enjoy the same defined 'wholly dependent' status as its siblings, i.e. even though the employee's ability to provide economic support had disappeared before the birth. The intent of Ss4(6) appears to have been to put those children of the employee with equivalent claims for support, on an equal footing with respect to compensation. It is safe to say the intention was not the reverse.

Where the reverse appears to be the case, the matter should be referred to the discussion line for advice.

In some of these cases e.g. where the mother of an unborn child (a child allegedly of the employee) conceived that child from a casual or non spouse-like relationship – i.e. one which could not meet the 'spouse' tests listed at 1.21 – other proof of paternity is needed. DNA tests are currently the most persuasive and delegates should be reluctant to concede compensation entitlements if compelling evidence is forthcoming.

In others, e.g. where the mother of the unborn child conceived that child from a relationship (either married or de facto) that has since ceased, the delegate will need to decide on the facts of the case what proof is required.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-1-legislation-and-definitions/120-children-employee-born-after-death-employee/1202-posthumous-extra-marital-children-vs-children-relationship

1.21 What is a 'Spouse' for the SRCA?

Both the SRCA and the Defence Act define 'spouse', but the SRCA's words at S4 take precedence.

In fact the effect of the Defence Act version is to clarify and somewhat restrict the reach of that SRCA definition, (see 1.22 for the ADB version).

Since 10 December 2008 the definition of 'spouse' in the SRCA has been:

'Spouse' includes:

a)in relation to an employee or a deceased employee – a person who is, or immediately before the employee's death was, a de facto partner of the employee; and

b)in relation to an employee or a deceased employee who is or was a member of the Aboriginal race of Australia or descendant of indigenous inhabitants of the Torres Strait Islands – a person who is or was recognised as the employee's husband or wife by the custom prevailing in the tribe or group to which the employee belongs or belonged.

Up to and including 9 December 2008 the definition read as follows:

'Spouse' includes:

a)in relation to an employee or a deceased employee – a person of the opposite sex to the employee who lives with, or immediately before the date of the employee's death lived with, the employee as the spouse of the employee on a bona fide domestic basis although not married to the employee, and

b)in relation to an employee or a deceased employee who is or was a member of the Aboriginal race of Australia or descendant of indigenous inhabitants of the Torres Strait Islands – a person who is or was recognised as the employee's husband or wife by the custom prevailing in the tribe or group to which the employee belongs or belonged.

The new definition is discussed at 1.21.3 and 1.21.4.  The primary import of the changes is that from 10 December 2008 on persons in same-sex relationships and their families (such as children and parents) are treated exactly the same as persons in opposite-sex relationships.  Determination of whether a person was the de facto partner of a deceased person will also be facilitated where a relationship has been registered under one of the prescribed Acts as a prescribed kind of relationship.

How the new definition of 'spouse' applies to partners of members who died prior to 10 December 2008

Although a person in a same-sex or other relationship not recognised by the SRCA prior to 10 December 2008 may have, from that date, become a 'spouse' for the purposes of the SRCA, they will not be entitled to any death benefits unless their partner's defence-related death occurred on or after that date.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-1-legislation-and-definitions/121-what-spouse-srca

1.21.1 Important Note re: married persons

The usual dictionary meaning of 'spouse' is 'married person'. The above passage from the SRCA assumes this basic meaning and begins 'Spouse includes' i.e. the passage operates to add to, or extend this background, assumed dictionary definition (spouse = married) to less formal arrangements. It certainly does not operate to exclude (by omission) the formal, legal married state from consideration as a 'spouse'.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-1-legislation-and-definitions/121-what-spouse-srca/1211-important-note-re-married-persons

1.21.2 Inclusive list of those who qualify as 'spouse' for purposes of the SRCA

Up to and including 9 December 2008, the term 'spouse' in the SRCA included:

  • A person legally married to the employee, and living with the employee.
  • A person still legally married to the employee but not living with the employee immediately before the death. Note: This includes separated persons but NOT those who have been legally divorced.
  • A person of the opposite sex who lived with the employee as the spouse of the employee on a bona fide domestic basis although not married to the employee
  • A person designated as a spouse under traditional indigenous law.

On and from 10 December 2008 the term 'spouse' includes:

  • A person legally married to the employee, and living with the employee;
  • A person still legally married to the employee but not living with the employee immediately before the death. Note: This includes separated persons but NOT those who have been legally divorced;
  • A person, whether of the same or a different sex, who is a 'de facto partner' of the employee, as defined in the Acts Interpretation Act 1901 (see 1.21.3);
  • A person designated as a spouse under traditional indigenous law.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-1-legislation-and-definitions/121-what-spouse-srca/1212-inclusive-list-those-who-qualify-spouse-purposes-srca

1.21.3 De facto partners

A 'de facto partner', is defined in the SRCA as:

de facto partner of a person has the meaning given by the Acts Interpretation Act 1901.

Section 22A of the Acts Interpretation Act 1901 (AIA) defines the term as follows:

...a person is the de facto partner of another person (whether of the same sex or a different sex) if:

  • the person is in a registered relationship with another person under section 22B; or
  • the person is in a de facto relationship with the other person under section 22C.
Registered Relationships

Section 22B of the AIA stipulates that a person is in a registered relationship with an employee if they are in a relationship with the employee which is registered under a law of a State or Territory prescribed under the AIA as a prescribed kind of relationship.  Currently there are only three such laws and kinds of relationship.  These are:

Victorian Relationships Act 2008

A relationship that is registered under the Victorian Relationships Act 2008.

Tasmanian Relationships Act 2003

  1. A relationship that is registered as a significant relationship as defined in section 4 of the Tasmanian Relationships Act 2003.
ACT Civil Partnerships Act 2008

A relationship that is registered as a civil partnership f under the ACT Civil Partnerships Act 2008.

Note that relationships registered in other countries or under other Australian registration schemes such as the City of Sydney registry cannot be recognised as conclusive evidence of a de facto partnership for the purpose of the SRCA.  However, evidence of a relationship registered overseas or via another Australian scheme would be a strong indication that the people registered (whether of the same sex or a different sex) are in a de facto relationship.

De Facto Relationships

Section 22C of the AIA provides that a person is in a de facto relationship with another person if:

  • they were not legally married to the employee; and
  • they were not related to the employee by family; and
  • the two persons had a relationship as a couple living together on a genuine domestic basis.
A person in more than one relationship

Under the AIA definition of 'de facto relationship' a person can be in a de facto relationship with another person, even if that person is concurrently:

  • married to a third person; or
  • in a registered relationship with a third person; or
  • in a de facto relationship with a third person.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-1-legislation-and-definitions/121-what-spouse-srca/1213-de-facto-partners

1.21.4 Relationship as a couple living together on a genuine domestic basis

In determining whether two persons had a relationship as a couple living together on a genuine domestic basis, section 22C of the AIA requires all the circumstances of the relationship to be taken into account, including any or all of the following circumstances:

  • the duration of the relationship;
  • the nature and extent of the common residence;
  • whether a sexual relationship exists;
  • the degree of financial dependence or interdependence and any arrangements for financial support between them;
  • the ownership, use and acquisition of their property;
  • the degree of mutual commitment to a shared life;
  • the care and support of children;
  • the reputation and public aspects of the relationship.

Importantly also, that section of the AIA specifies that no particular finding in relation to any of the above-listed circumstances is necessary in determining whether two persons meet the criteria for a de facto relationship.  Thus a delegate cannot find that two persons are not in a de facto relationship on the basis of a particular circumstance.

Furthermore the applicant's assertions about some of the above factors would, of their nature, be hard to confirm. The judgement is up to the delegate given the known facts of the case. Where delegates are required to make such a decision, the basis of this decision should be documented by commenting on each of the above.

Deeming persons to be living together

Section 22C of the AIA also provides that persons are to be taken to be living together on a genuine domestic basis if they are not in fact living together on a genuine domestic basis only because of:

  • a temporary absence from each other (this criterion can be particularly relevant to defence couples where one of the partners is posted away for an extended period); or
  • illness or infirmity of either or both of them (such as when one of the partners requires long-term institutional care).

Note that this paragraph of section 22C of the AIA might appear to have the same effect as subsection 4(4) of the SRCA in so far as it relates to the deceased's incapacity.  However, 22C(4)(b)of the AIA is deeming a person to be in a de facto relationship where the only reason they are not otherwise meeting the criteria for 'de facto relationship' is the illness or infirmity of themselves or their partner.  It does NOT deem the person to be wholly dependent on the deceased.  The criteria in subsection 4(4) must be met for that deeming to take place (see 1.13)

.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-1-legislation-and-definitions/121-what-spouse-srca/1214-relationship-couple-living-together-genuine-domestic-basis

1.21.5 De facto partnerships within Defence

The ADF requires serving members to report whether or not they are married or in a de-facto partnership. There is also incentive or even necessity to do so in the shape of specific housing arrangements, allowances, welfare and social support services etc. In the case of the death of a serving member, delegates may settle some disputes in respect to contentions of a de facto spousal relationship by reference to the ADF unit's records.  However, care needs to be taken in using such information because the ADF now recognises interdependent partnerships which is a much broader term than de facto partnerships.

The ADF has issued its own administrative instructions (a Defence Instruction (General)) on the matter, Delegates should refer to DI(G) PERS 53-1 contained in Part 2 of Chapter 8 of the ADF Pay and Conditions Manual at http://www.defence.gov.au/dpe/pac/

which says, in part:

2. A member seeking ADF recognition of an interdependent partnership must prove that their partner is a person who lives in a common household with the member in a bona fide, domestic, interdependent partnership, although not legally married to the member. Where the interdependent partnership is recognised by the appropriate Service authority, a member may be eligible for financial entitlements and conditions of service which apply to a member with dependants as defined in PACMAN.

4. b. Interdependent partner—is a person who, regardless of gender, is living in a common household with the member in a bona fide, domestic, interdependent partnership, although not legally married to the member. This includes those previously recognised by the ADF under the previous Defence Instruction (General) PERS 53–1—Recognition of de facto marriages, as having a de facto marriage, and also allows for those now recognised on the basis that they are in an interdependent same sex partnership.

c. Common household—means a home in which the member and their partner normally live and in which they have pooled a significant amount of their household possessions for joint use as a consequence of establishing the partnership. The term common household does not include Service provided living-in accommodation.

d .Permanent basis—is when the member and their partner normally reside under the same roof, in the same locality, in a common household. Neither the member nor their partner is to be a member of another household. Specifically, for recognition purposes, the member and their partner are not to be living in separate localities, with the couple only spending time in the common household during weekends, holidays etc .

7.Not every relationship is one that satisfies ADF requirements for a recognisable interdependent partnership. The core requirements to be met prior to the member completing both the application for recognition of an interdependent partnership in annex A and the Statutory Declaration, including the four items of documentary evidence, in annex B, are that the member and their partner:

a.have lived together on a permanent basis, in a bona fide, domestic, interdependent partnership as per subparagraphs 4.b. and 4.d. for a period of not less than 90 continuous days; and

b.have maintained a common household as per subparagraph 4.c.

8.The Approving Authority may decide to recognise an interdependent partnership for a member and their partner who have not lived together for 90 continuous days, if they consider that the couple:

a.are temporarily separated because of Service exigencies or unforeseen circumstances;

b.lived together on a permanent basis, in a bona fide, domestic, interdependent partnership in a common household immediately before the member was formally notified of the event resulting in the separation;

c.continue to maintain their common household; and

d.commenced living together in the common household at least 90 days before the application for recognition of the interdependent partnership was submitted.

9.To receive ADF recognition of an interdependent partnership, a member, in addition to meeting the requirements in paragraph 7. or 8., is required to provide the Approving Authority with:

a.a completed Application for Recognition of an Interdependent Partnership form (see annex A);

b.a completed Statutory Declaration (see annex B) to attest that an interdependent partnership has been established and is supported by the existence of four items of documentary evidence, as detailed in annex B; and

c.those four items of documentary evidence

.

For the purposes of paragraph 9, the four items of documentary evidence must be selected from the following alternatives:

  • Evidence of a will or life assurance policy which nominates your partner as principal beneficiary, or co-beneficiary with children;
  • If your partner was, before beginning to live with you, in receipt of a Commonwealth pension or benefit from which they may be excluded by law, evidence that your partner has notified the relevant agency;
  • Evidence that you have enrolled your partner in a health insurance scheme, or arranged to pay the Medicare levy because of his or her changed domestic status;
  • You have named your partner as a person to be notified for Service purposes;
  • Statutory declarations from next of kin or close relatives stating that they have regarded you and your partner as interdependent partners for a minimum period of 90 days, and giving any other information that they may consider appropriate;
  • If your partner has no independent income, evidence of regular financial support by you for a minimum period of 90 days;
  • Evidence that you as a couple regularly operate, a joint account;
  • If you and your partner live in rented accommodation, either evidence that both names appear on the lease, or a statement from the landlord or agent declaring that he or she rented the premises at your address to a couple (rather than two singles or one person). If the accommodation is leased through the Defence Housing Authority, evidence that you have applied for an additional person to reside with you, and the subsequent approval. These documents must show a commencement date of a minimum period of 90 days prior to the application;
  • Documents to show that you and your partner have purchased or are purchasing as joint owners, valuable property;
  • Evidence of a recognised partnership from other Government agencies;
  • One partner has changed his or her name by deed poll, or informally calls himself or herself by the name of the other partner (as shown by any documents which refer to him or her as Mr or Mrs "X");
  • A copy of a birth certificate of any children of the union;
  • Evidence of any financial arrangements for sums in excess of $1000 which you and your partner may have agreed between you (eg personal loan, payment of one or other's debts, guarantor of loan);
  • Evidence that you or your partner has given the other partner access to their personal bank account(s) for bill paying purposes or power of attorney during any separation. lived with me since;
  • Evidence of either one household bill in joint names, or two separate household bills, one in each partner's name.

Given the differences between Defence's criteria for recognising relationships and those in the SRCA, a delegate should not assume, in the case of a serving member, that if the relationship is recognised by the ADF for allowance and accommodation purposes, the employee's partner qualifies as a 'spouse' for the purposes of the SRCA.  However, ADF recognition may be of some assistance when determining whether the couple meet the narrower criteria under the SRCA..

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-1-legislation-and-definitions/121-what-spouse-srca/1215-de-facto-partnerships-within-defence

1.21.6 More than one spouse

There can be more than one 'spouse'. In general, a legally married spouse remains a spouse (even if separated) unless or until formally divorced. The spousal status of a de facto partner however, endures only while living in a joint household with the employee.

Thus, it is possible for an employee to have two spouses, i.e. a person to whom he/she is still legally wed but separated from without divorce, and the person with whom he/she is currently living with, i.e. on a de facto married basis. Furthermore, the employee may be contributing to the absent spouse's upkeep which would keep that person within the definition of 'dependant'.

In such a situation, the resident spouse (i.e. the de facto), will be entitled to receive compensation on the basis of Ss4(5) and only in unusual circumstances would she have to share that compensation with the legally married spouse.  This could occur where the legally married (but absent) spouse can demonstrate total dependence on the employee for economic support. This is an unlikely, but possible scenario.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-1-legislation-and-definitions/121-what-spouse-srca/1216-more-one-spouse

1.22 What is a 'Spouse' for the purposes of the Additional Death Benefit (ADB)?

The Defence Determination 2009/70 states:

'Spouse' has the same meaning as in the Safety, Rehabilitation and Compensation Act 1988.

Note: This meaning includes a de facto partner (whether of the same sex or a different sex).



Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-1-legislation-and-definitions/122-what-spouse-purposes-additional-death-benefit-adb

Ch 2 Claims

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-2-claims

2.1 Claims for Compensation Following Death

Last amended: 21 March 2013

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-2-claims/21-claims-compensation-following-death

2.1.1 General

Claims for compensation in respect of death can be usefully divided into two types:

  • Claims where the death is the result of a disease (or possibly, delayed effects of a traumatic injury) for which the Commonwealth has already accepted liability for the injury or disease.
  • Claims where there is no prior claim for injury, i.e. the nexus between the known cause of death and ADF employment has not already been the subject of a determination prior to the request for compensation following death.

 

Since the introduction of the Military, Rehabilitation and Compensation Act 2004 (MRCA), most deaths covered under the SRCA will be as a result of diseases related to SRCA service.

 

Section 54 of the SRCA provides that no compensation is payable under that Act except where there has been a written claim 'in accordance with the form approved by Comcare'. The form currently approved by the Military Rehabilitation and Compensation Commission (MRCC) in lieu of Comcare is the DVA Form D9182: 'Claim for compensation of Funeral expenses and/or Compensation following death for Dependants of deceased members and former members of the Australian Defence Force'.

While section 54(5) provides that strict compliance with an approved form is not required and substantial compliance is sufficient, DVA would need to ensure there was sufficient information provided by the claimaint to enable reasonable investigation and determination of the claim. For more information about lodgement of claims refer to Chapter 6.3 of the SRCA Liability Handbook.

 

 

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-2-claims/21-claims-compensation-following-death/211-general

2.1.2 Where the death results from an accepted condition

Where a death results from an 'injury' (including a disease) for which the Commonwealth has already accepted liability, the D9182 is required as it provides details of both the reason for death and dependency aspects of the claim. In this situation no investigation into the nexus with employment is necessary. However, the delegate must be satisfied, on the balance of probabilities that there is a causal connection between the accepted condition and the death. The test is still that death must have arisen out of, or in the course of employment, or in cases of death from disease, be materially contributed by service. As liability for the condition has already been established, to satisfy the connection between service and the death, the delegate need only be satisfied that the death was as a result of the accepted condition.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-2-claims/21-claims-compensation-following-death/212-where-death-results-accepted-condition

2.1.3 Where death occurs without any prior claim for injury

Where a D9182 is lodged and the deceased had no prior claim for a disease or injury which contributed to the death, that is, a 'new' case involving death by an injury not previously investigated for liability, payment of compensation must be preceded by a full liability investigation. Such cases follow the same general initial liability process for injury or disease, and the D9182 must be lodged.

 

A grieving spouse may not be in a position to deal with the Commonwealth's paperwork immediately after the death. Nevertheless, the advancement of claims for death (and the provision of financial support to dependants as soon as possible) has the highest of all of the MRCC's priorities. In such circumstances, a delegate should be prepared to advance the investigation and the D9182 facilitates this process.

 

Claims relating to a death (i.e. 'injuries resulting in death') initially resemble other claims for injury or disease. The processing and investigation of new injury and disease claims is dealt with at length in the 'Initial Liability' chapter of this Handbook. Delegates should first turn to that chapter and follow those procedures, so as to establish whether there is a sufficient nexus between the death and ADF employment to determine 'liability'.

 

Please Note:

Delegates are reminded that it is DVA policy to take every appropriate action to avoid unecessary duplication of claims and, as much as possible, to simply the claims process for bereaved family members. There is no capacity to register a Permanent Impairment (PI) investigation, determiantion or payment once a death claim has been opened. Therefore, a separate liability claim record and determination may be registered to enable the PI claim to be processed and s24 payments made.

The PI liability investigation may rely on the connection to service established through investigating the death claim.

It will still be necessary for a specialist to ascertain a level of impairment prior to the client’s death.  Obviously the client can no longer be examined, estimates will, therefore, have to be made on the basis of any earlier assessments undertaken (if possible).

It is also important to remember that while section 55 of the SRCA does not prevent a posthumous claim being lodged by a person with the appropriate authority to do so, subsection 55(4) is very clear that no payment can be made against the claim for non-economic loss (s27) after the person’s death.

 

 

 

 

 

 

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-2-claims/21-claims-compensation-following-death/213-where-death-occurs-without-any-prior-claim-injury

2.1.4 Voluntary Assisted Dying

For information relating to Voluntary Assisted Dying, please see 7.2.1 Voluntary Assisted Dying.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-2-claims/21-claims-compensation-following-death/214-voluntary-assisted-dying

2.2 Notification of Death and Initiation of Investigation

As related above, many deaths will (at least initially) be notified to the Department informally, for instance via a telephone call by a relative who may or may not be a dependant or by contact from ADF personnel. Telephone contact by a senior NCO from the deceased member's unit is the common method of initial notification where the death occurred in service.

Delegates should note that in death cases, the identity of persons entitled to a benefit or even entitled to claim is not always clear at the time of the death. Clarification of this point is one of the objects of any investigation. It is not always clear who to encourage to submit a claim, nor are such persons always in a state of mind which would permit them to submit a formal claim soon after the death.

With respect to late claims for compensation – i.e. those made years after the death – the guidance given at Parts 17, 18 and 19 of the Initial Liability chapter of this Handbook may be relevant, but delegates should not under any circumstances attempt to deny claims of the dependants of a person (particularly dependants of an employee who died after discharge) merely on the basis that the notification was late. The merits of the case must be judged on the basis of the evidence relating to relationship and economic dependency rather than compliance/non-compliance with the notification provisions of the Act.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-2-claims/22-notification-death-and-initiation-investigation

2.3 Death = High Priority Claim

Progression of compensation cases potentially involving payment of a death benefit represents the highest priority claim process. It is to be given the delegates full attention in preference to all other types of claim or requests for benefit. The reason for this status lies in the need to provide financial support to persons who have had income (and perhaps access to an ADF residence etc.) suddenly removed by the death.

Deaths for which compensation is only claimed years after that death are of course not in the same urgent category, unless the dependant can demonstrate that he/she is currently in dire need. Nevertheless, delegates should investigate all such claims as quickly as possible.



Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-2-claims/23-death-high-priority-claim

2.4 Need for ACCURACY in Death Claims - S56 Prohibits 2nd Determinations

Nothing in the above Part 2.3 about the urgency of claims for recent deaths should be taken to imply that speed is preferred to accuracy in cases where there is a conflict between the two. In fact, the correctness of the final determination is absolutely vital to Death cases and should be regarded as paramount to all other considerations.

Subsection 17(10) of the SRCA says:

Ss17(10) Where claims for compensation under this section are made by or on behalf of 2 or more dependants of a deceased employee, Comcare shall make one determination in respect of those claims

Claims made by or on behalf of 2 or more dependants of a deceased employee may be made on 1 or more Claim for compensation of Funeral expenses and/or Death Benefits for Dependants of deceased members and former members of the Australian Defence Force Forms but must all be determined at one time and in the same determination.

Section 56 of the SRCA also says:

S56 Where an amount is paid to, or in accordance with the directions of, a relevant authority under Subsection 17(3) or (4), for the benefit of a dependant of a deceased employee, by whom, or on whose behalf, a claim was made for compensation under Section 17, no other dependant of that employee is entitled to claim compensation under that section after the day on which that amount is so paid.

In fact the scheme of the Act is rather, that S17(3) and (4) provides a single lump sum only, and the delegate is constrained to make a single determination which makes a once-only division of that lump sum between all claimants.

However the reverse side of S56 is that, where the claim of a particular dependant with a good case for entitlement is not made known to the delegate before that once-only determination, there is no legislative basis to pay that person should they emerge at a later date. This situation has practical effect as instances have occurred in the past, particularly in relation to ex-nuptial dependent children.

Delegates should exercise particular care in determining who was financially dependent upon the deceased, to the extent of requiring details of persons to whom the deceased made pay allotments, or in respect of whom did the deceased contribute child support through the Child Support Agency etc.

In cases such as the above or in other cases involving the division of the SRCA lump sum between persons on the basis of claimed loss, delegates should guard against sacrificing the completeness of an investigation for the need to make an urgent determination. In cases of 'error' or where new claimants unexpectedly emerge, the only available corrective action is to withdraw and re-determine the original determination as a 'reconsideration on own motion' under S62. There is no prospect of awarding any more than the single maximum lump sum amount. Adjustments therefore inevitably require the recovery of funds from the earlier-known individuals who may have already spent that lump-sum share, thus causing a high degree of hardship and distress.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-2-claims/24-need-accuracy-death-claims-s56-prohibits-2nd-determinations

Ch 3 Investigating the Nexus With Employment

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-3-investigating-nexus-employment

3.1 Deaths after Discharge - Liability Previously Accepted for Cause

Deaths from accepted conditions are often the simplest to determine, because the nexus with the condition alleged to produce the death has already been tested and accepted. However delegates will still have to confirm on the basis of the death certificate or by means of other medical advice, that the condition (i.e. for which the Commonwealth had previously accepted liability) resulted in death.

A separate D2020 claim form is not required in respect of the death as liability has already been accepted in respect of the 'injury' which has now resulted in death. Delegates are provided with a specific claim form for funeral expenses and death compensation (D9182), presented as one of the standard letters in the Defcare Standard Letter database. This claim form has been designed primarily to cope with the typical 'nuclear family' situation where the informant will be a spouse living with the client at the time of death. The form acknowledging entitlement and acceptance of payment at the end of the assessment process is deemed to be a sufficient application for the death lump sum.

The link between accepted condition and death is undertaken primarily by two means:

  • scrutinising a copy of the death certificate, which needs to be obtained in all cases, and
  • direct communication with, and/or a written report by, the doctor treating the client during his/her last illness (this may only be necessary where the death certificate is not sufficiently specific).

In some cases, delegates may require further confirmation or explanation as to the relationship between the accepted condition and the official cause of death. This additional medical advice may be required when, for example:

1.the degree of contribution of the compensable condition to the cause of death on the death certificate is not clear, and

2.the doctor attending the death and signing the death certificate (who may not have been the treating specialist) has given an explanation of that nexus which is unsatisfactory and/or apparently beyond the scope of his/her expertise and specialty.

Having established that the accepted condition was the cause of death or a significant contributor thereto, the delegate then needs to investigate the identity of the 'dependants' in this case, and the degree to which each was 'dependent' upon the deceased employee

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-3-investigating-nexus-employment/31-deaths-after-discharge-liability-previously-accepted-cause

3.2 Deaths after Discharge - Liability not Previously Accepted for Cause

Virtually all claims for deaths after discharge will relate to a disease rather than a simple injury. For a death benefit to be payable in respect to a death certified to be from that disease, that disease must have been materially (or significantly where date of diagnosis is on/after 13 April 2007) contributed to by ADF employment.

In effect, the case has become one of 'initial liability' for the causative injury/disease. Delegates faced with these cases should apply the principles and procedures contained in this Handbook's chapter on 'Initial Liability'.

However, as S57 examinations have been precluded by the death, medical opinion on causation of those diseases not caught by S7(1) of the SRCA will be restricted to Service medical records (and, possibly, retrospective opinion by any relevant medical specialists who had treated the client since discharge).

Having established that the certified cause of death had the required nexus with ADF employment, no separate determination on 'initial liability' is necessary.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-3-investigating-nexus-employment/32-deaths-after-discharge-liability-not-previously-accepted-cause

3.3 Deaths in Service

Deaths in service will in almost all circumstances be covered under the Military, Rehabilitation and Compensation Act 2004 (MRCA). However, in some circumstances a member may be suffering from a condition which is as a result of SRCA service, but dies during MRCA service.

For example, a member who suffers from cancer that has been materially or significantly contributed to by SRCA service pre 1 July 2004. Sometime later they die from cancer whilst on duty. At first the delegate should investigate whether the death can be accepted under the MRCA. Refer to the MRCA Death and Liability Chapters for further guidance. If the death cannot be accepted under the MRCA, the delegate should then look at a connection to SRCA service – that is the death was a result of a condition that can be accepted under the SRCA. Whilst the following comments will more often relate only to MRCA death cases, it is still important to bear them in mind for any death in service no matter which Act is covered.

'In service' deaths have some other distinguishing features which impact on the liability investigation process as follows:

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-3-investigating-nexus-employment/33-deaths-service

3.3.1 ADF accident/incident investigations

Where a member dies whilst on duty there will be at the very least an assessment inquiry by the CO of the unit, and almost certainly a person appointed to investigate and report on the circumstances surrounding, or leading to, that death. Furthermore, there may well be a more formal Defence Board of Inquiry under the auspices of the Defence (Inquiry) Regulations. The CO of the unit is also constrained by instructions under ADFP202 to inform ADF 'higher authority', the civilian police and the coroner, and all of those organisations may, at their discretion, conduct their own investigations.

The Administrative Inquiries Manual, (ADFP202) at Chapter 2 – relating to 'quick assessments' – says:

Accidental death of Australian Defence Force members 2.6

2.6 An accident involving the death of one or more ADF members involved in ADF activities is to be reported to higher authority immediately. The Chief of the Defence Force or Service Chief, as appropriate, will refer the matter to the Minister to determine whether the appointment of a General Court of Inquiry or a Board of Inquiry is warranted. The deaths of ADF members on duty are also to be reported immediately to civilian police and the relevant State or Territory coroner. A liaison officer is to be appointed to assist the coroner.

Inquiries conducted by the ADF may be wide ranging and involve matters for which public disclosure may transgress personal privacy or ADF security. Thus, not all details may be released to delegates in all cases. Nevertheless, it is reasonable to expect that the conclusions of that inquiry or at least those portions impacting on the Commonwealth's compensation liability be communicated to the delegate. The reports of a formal Board of Inquiry or the proceedings of a Court-Martial, however, are public documents and it is expected that these complete documents should be released to delegates. Furthermore, in addition to this reasonable access to Defence's investigations about the death, it would be expected that the liaison officer appointed by the Unit CO in accordance with ADFP202 would also assist the delegate (i.e. in addition to that officer's duty to assist the coroner).

Failure of the unit to offer reasonable cooperation or information should be referred to Management for correction via the Defence/ADF chain of command.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-3-investigating-nexus-employment/33-deaths-service/331-adf-accidentincident-investigations

3.3.2 Liaison with the ADF unit and Defence Community Organisation

Delegates should initiate all requests for documents and other information through DVA's Single Access Mechanism (SAM) team. In cases of death it may then be appropriate to directly deal with those areas of the ADF dealing with the member's case. Generally the ADF will appoint a liaison officer and the delegate should deal with them and the Defence Community Organisation (DCO) in respect to the welfare of the deceased's dependants. It may be helpful for the dependants if the DCO or liaison officer is informed about the Department's evidentiary needs with respect to the claim.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-3-investigating-nexus-employment/33-deaths-service/332-liaison-adf-unit-and-defence-community-organisation

3.3.3 Contact with the spouse/dependants

Sometimes the first Departmental/spouse contact may actually be initiated by the spouse. However where it is up to the delegate to take initiative, the initial contact with dependants living with a deceased serving member should always be performed through the unit, or alternatively by clearing that initial contact with the unit chaplain or with the Defence Community Organisation (DCO) first.

Later contacts may then be made directly, unless those family members are so distressed that it seems preferable to continue to transmit compensation information or the delegate's questions only via DCO or the unit's other personal support resources.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-3-investigating-nexus-employment/33-deaths-service/333-contact-spousedependants

3.4 Proving Liability for the Death and Removal of Statutory Exclusions

As discussed in subsection 1.1 of this handbook, the criteria for investigating whether a death occurred in compensable circumstances are essentially the same as for any other grade of injury or disease. That is, the death must be shown to have resulted from a compensable injury (including disease).

This means that in general, the procedures set out in this Handbook's chapter on 'initial liability' should also be applied to investigations of deaths.

Note that the SRCA, although primarily a 'no fault' Act, provides for a number of circumstances where the actions of the employee are deemed to have excluded him/her from compensation. These exclusions are summarised at Parts 82 to 98 of the Initial Liability chapter of this Handbook. In brief, deaths arising from a reaction to reasonable disciplinary action, failure to obtain promotion transfer or benefit from employment, a condition concealed at enlistment or from a self inflicted injury are non-compensable and do NOT attract the Death benefit.

ALSO

There are also similar exclusions from compensation (re: S14(3) and S6(3) of SRCA) for:

  • injuries arising from 'serious and wilful misconduct', and
  • 'voluntary and unreasonable submission to abnormal risk',

but these particular exclusions are waived by the Act where 'the injury results in death, or serious and permanent impairment'.

Note: This concession does not apply to the other exclusions listed above (discipline, self inflicted etc.).

Example

Note that by virtue of the definition of 'injury' at S4(1), those injuries contributed to by alcohol are deemed to have arisen from serious and wilful misconduct. Thus:

  • a member who drove home from a compulsory ADF mess function with a blood alcohol reading over 0.05 and suffered a broken leg from the resulting MVA would not be entitled to compensation
  • however if that member died in that MVA, the death benefit would be payable.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-3-investigating-nexus-employment/34-proving-liability-death-and-removal-statutory-exclusions

3.5 Suicides

Section 17 of the DRCA (Compensation for injuries resulting in death) sets out the circumstances in which the Commonwealth is liable to pay compensation for ‘an injury to an employee [that] results in death’.

When considering whether the Commonwealth is liable to pay compensation under s 17(1) in relation to a veteran’s suicide, it will be necessary to determine whether the injury that resulted in the veteran’s death is excluded under s 14(2) of the DRCA.

Subsection 14(2) of the DRCA says:

Compensation is not payable in respect of an injury that is intentionally self‑inflicted

Note that, unlike the MRCA, the DRCA contains no waiver of this exclusion if the intentionally self-inflicted injury results in death or serious and permanent impairment.

However, this does not mean that an injury that resulted in a veteran’s death by suicide or attempted suicide should always be excluded under s 14(2). In some circumstances an injury resulting in death may not have been ‘self-inflicted’ for the purposes of s 14(2), and in others, the individual may have lost volition such that the injury cannot be taken to have been ‘intentionally’ self-inflicted for the purposes of s 14(2).

Overview

In order for subsection 14(2) to apply, three requirements must be met:

  1. The condition in question must meet the definition of an ‘injury’.
  2. The injury must be self-inflicted.
  3. The infliction of the injury must be intentional.

If any of these requirements are not met, the exclusion set out in s 14(2) does not apply to the claim. 

1. Injury

In order for the Commonwealth to be liable to pay compensation under s 17(1) in respect of a veteran’s suicide, the death must have resulted from an ‘injury’ as defined in s 5A of the DRCA. This includes “a physical or mental injury arising out of, or in the course of,” a veteran’s service, except where it arose “as a result of reasonable administrative action taken in a reasonable manner”.

When considering whether an injury was present, it is important to take into account all injuries of this kind which were present at the time of death by suicide and which may have contributed to the death by suicide. 

If the injury has not been accepted under the DRCA prior to the death, a service related injury contributing to the death may potentially be established via the posthumous mental health diagnosis policy, see CM6267 Guideline for Operation of Posthumous Psychiatric Diagnosis Panel | Compensation and Support Reference Library, Commission Guidelines (dva.gov.au).

If a veteran’s death did not result from an ‘injury’ as defined in s 5A of the DRCA then s 14(2) will not apply to the claim.  However, the veteran will also not be entitled to compensation under s 17 of the DRCA due to the absence of an ‘injury’. 

However, if the death did result from an ‘injury’ as defined in 5A, the next step is to consider whether all contributing injuries were self-inflicted.

2. Self-inflicted

When considering whether a contributing injury was self-inflicted, it is important to remember that the injury in question is the service-related injury or injuries identified in step 1.  Even though other injuries may be present which contributed to the death by suicide, only those which meet the definition under 5A are considered in relation to s 14(2).

It is important to remember that while a death by suicide clearly involves a self-inflicted injury, it is possible that a veteran:

  • suffered a previous injury that was accepted (or can be posthumously accepted) as service-related under the DRCA, and
  • this injury was not self-inflicted, and
  • this injury resulted in the veteran taking their own life.

Ultimately, it is possible that an injury can have resulted in a veteran’s death even in the presence of another fatal self-inflicted injury, so long as there is a sufficient connection between this previous injury and the veteran’s death.

For example, a veteran could have incurred a significant depressive disorder injury that arose from, or in the course of their service. This depressive disorder injury was not self-inflicted and is not excluded under s 14(2) of the DRCA.  If this injury materially or significantly contributed to the death of the veteran then both the self-inflicted injury that directly ended the veteran’s life and the depressive disorder injury could be taken to have resulted in the veteran’s death.  While the self-inflicted injury may be excluded under s 14(2), the depressive disorder injury is not excluded and, should the depressive disorder have contributed to the death then the Commonwealth may then be liable to pay compensation under s 17 of the DRCA in respect of a death arising from this depressive injury.

This was, essentially, the factual circumstance in the Administrative Appeals Tribunal (Tribunal) matter of Sadlo and Comcare [2005] AATA 1006 (Sadlo). In Sadlo, the Tribunal found that a work related depressive disorder injury caused the employee’s death, for the purposes of s 17 of the DRCA, notwithstanding that the employee had committed suicide.

A common-sense approach should be taken to considering the causal chain and the question of whether a particular injury resulted in a veteran’s death.  Delegates should be aware that the presence of intervening links in the chain or other contributory causes of death does not necessarily preclude a finding that a previous service-related injury contributed to and resulted in the veteran’s death.

Taking into account all of the above, if the injury (or one of the injuries) contributing to the death was not self-inflicted then it is not excluded under s 14(2).  If it was self-inflicted, it needs to then be considered whether this was intentional.

3.  Intentional

Whether the injury was intentionally self-inflicted only becomes a consideration in relation to s 14(2) if it has already been established that:

  1. an ‘injury’ is present which meets the definition in s 5A
  2. the injury is self-inflicted. 

If either of those facts have not been established, s 14(2) already does not apply and the question of intentionality is irrelevant.

An injury may not be intentionally self-inflicted where there is a demonstrated loss of volition such that the veteran was unable to understand or appreciate the consequences of their actions.

In some circumstances an injury inflicted by the veteran's own hands may be deemed not to be intentional, by virtue of them having – due to a compensable mental disease – lost the power of volition (intention) i.e. the power to make a decision or exercise their will in relation to living or dying.  In such a case, the injury would not be excluded under s 14(2) and the Commonwealth may be liable to pay compensation for the death or injuries arising from suicide or attempted suicide

It is not the case that the fact of a suicide attempt or suicide demonstrates, of itself, a loss of power of volition. This circular argument cannot be admitted, even when presented by a medical practitioner.

In Re Pamela McLaren and Comcare [1992] AATA 202, the AAT found that the question was 'has the workman's mind become so unhinged as to dethrone his power of volition' (citing Church v Dugdale & Adams Ltd (1929) 22 BWCC 444). On the facts of this case, the Tribunal found that ‘the work related stress and major depressive illness [was such that] he was no longer able to choose whether he would or would not continue to live or whether he could or could not restrain the temptation to suicide' (at [17]).

The state of the veteran's mind is a question of fact.  Such factual findings can be made with reference to expert opinion, such as by a psychiatrist.  An expert opinion about the veteran’s state of mind including, specifically, an ability to form an intention, should (where possible) be based on a psychiatric examination conducted shortly before the death by suicide or suicide attempt to give the delegate an indication of the veteran's prior mental health. Where this is not available, there should be other evidence that can be assessed by an expert.

Provided all other steps have indicated the injuries or disease(s) resulting in death was an injury and self-inflicted and intentional, in the absence of an informed expert opinion about the veteran's state of mind and loss of volition, the delegate should find that the suicide or attempted suicide was the result of an intentional, self-inflicted injury that is excluded under s 14(2).

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-3-investigating-nexus-employment/35-suicides

3.6 Death Certificates

No determination about liability or compensation for Death may be made unless the delegate has been provided with a copy of the death certificate. It must be considered mandatory for death claims.

Death certificates are essential for two reasons:

  • To validate the actual fact of the employee's death and provide the legal underpinning to any determination on compensation.
  • In respect of its status as the official medical opinion on the cause of death (which of course must be demonstrated to determine whether a death is employment-related).

Provision of death certificates to validate a claim is analogous to the provision of a medical certificate demonstrating an injury for other classes of claim. It is the claimant's responsibility to provide that death certificate. Delegates should however provide reasonable assistance particularly where the dependant/claimant is either distressed or under some disability (i.e. is a child).

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-3-investigating-nexus-employment/36-death-certificates

Ch 4 Determining SRCA/ADB Lump Sum Entitlements

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-4-determining-srcaadb-lump-sum-entitlements

4.1 Identifying 'Dependants' who may be Entitled to Compensation

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-4-determining-srcaadb-lump-sum-entitlements/41-identifying-dependants-who-may-be-entitled-compensation

4.1.1 The scheme of the Act

Compensation under the SRCA for death of an ADF member can be made only to dependants, if there are any. 'Dependant' is defined by the SRCA. That definition is discussed in full at 1.11 of the Handbook. The scheme of the Act re: deaths, is that S17 provides a once-only maximum lump sum which is to be divided on a once-only basis between all those with an entitlement under the Act. Comcare has developed guidelines for dividing the lump sum payable based on the economic loss that each dependant has suffered.

Section 56 provides that no other determination can be made after that date i.e. this single determination can not normally be repeated or corrected.  The exception to this is via a 'reconsideration on own motion' in accordance with section 62 of the Act (refer to 2.4 of this Handbook for further information). There is no discretion to leave a potential entitlement unassessed i.e. reserved in the sense of undetermined until such time as a claimant cares to apply for it, as is the situation with permanent impairment lump sums. It is either paid as part of the one-and-only determination, or not paid at all. This means that the delegate must be made aware of all persons with an entitlement or at least purporting to have a claim, before that final determination is made.  See also 2.4.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-4-determining-srcaadb-lump-sum-entitlements/41-identifying-dependants-who-may-be-entitled-compensation/411-scheme-act

4.1.2 The delegates investigation re: 'dependants'

The main practical problem to be overcome by a delegate, is that 'dependant' covers a wide field of possible claimants from the deceased's extended (and/or former) family. Some may not have been in direct contact with the employee as the 'dependency' may relate to a semi-automatic transfer of money (for instance a periodic payment from a bank account). Thus, apart from a spouse and children living with the deceased employee, it may not be obvious who all the potentially entitled persons are, or where they may be. Those persons may not be aware of their status under the Act, or even, on occasion, of the death itself. Some may be children in the care of unrelated persons and can not be relied upon to identify themselves. Some family members may even try to conceal the dependent status of other potential dependants in order to maximise their own benefit and that of their children.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-4-determining-srcaadb-lump-sum-entitlements/41-identifying-dependants-who-may-be-entitled-compensation/412-delegates-investigation-re-dependants

4.1.3 Dependants = claimants?

Obviously, given that the statutory total benefit payable must be divided amongst each eligible dependant, a delegate can not determine the matter merely on the basis of who happens to actually apply for that benefit. It is the delegate's task to make inquiry as to who those entitled persons might be, and to solicit a claim on their behalf.

At least one Claim for compensation of Funeral expenses and/or Death Benefits for Dependants of deceased members and former members of the Australian Defence Force (D9182) is required in those cases where the death is from an injury/disease which has not already had liability accepted in a prior determination. Where liability has previously been accepted, the claim form is still required and completed accordingly for claim registration and S54 compliance only. The delegate is not, however, restrained from finding thereafter, that persons other than this particular applicant are entitled to compensation for the death.  In such cases, the other dependants must also submit a claim form to comply with section 54.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-4-determining-srcaadb-lump-sum-entitlements/41-identifying-dependants-who-may-be-entitled-compensation/413-dependants-claimants

4.1.4 Investigation strategy

Little direct guidance can be given in relation to the way an investigation into the number and status of 'dependants' is to be conducted. Each case will have its own unique characteristics and demands. However, it is fair to say that in the majority of cases, the delegate will be reliant upon informants from the deceased's family – primarily the spouse, if resident with the employee at the time of death. Any or all of those family members may have a financial interest in the outcome of the disclosure. Delegates should therefore use the 'death claim form' from the Defcare Standard Letters suite to obtain written, signed declarations from key informants about ALL persons who were known to be dependent on the employee, i.e. for financial support.

Where the member was still serving in the ADF at the time of death, the delegate will be able to access independent evidence of other dependants, by having the ADF report the following from the deceased employee's personnel file:

  • whether the employee made regular/continuing allocations from his/her pay, and if so, to whom
  • whether the employee's pay was 'garnisheed' with orders in respect to a claim for support by any individual
  • whether the employee made payments to the Child Support Agency.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-4-determining-srcaadb-lump-sum-entitlements/41-identifying-dependants-who-may-be-entitled-compensation/414-investigation-strategy

4.2 Who is a prescribed child?

The term 'prescribed child' is defined in section 4(1) of the SRCA.  It broadly means a person under 16, or a person aged 16 and up to 25 years, in full time education and not generally in employment.  Refer to Part 1.18 for explanation of the 'prescribed child'.

 

A prescribed child under the age of 16 remains a prescribed child regardless of that child's continued attendance at school etc. Weekly payments should continue to be made throughout the year, i.e. even where the child undertakes casual employment during school holidays.

 

For guidance on the application of 17(5)(b) refer to 1.20.

 

However, after the child attains the age of 16, the delegate must have regard to whether:

'Prescribed child'

4(1)(b)(ii)is receiving full-time education at a school, college, university or other educational institution, and

  (iii)is not ordinarily in employment or engaged in work on his or her own account'

 

Thus the entitlement to S17(5) payments for a dependent child between the ages of 16 and 25 is dependent on whether that person is engaged in full time study. Therefore, for those engaged in university or college courses etc. it is reasonable that the delegate be informed of the course undertaken and the expected date of completion. If the delegate is not provided with this basic information, that delegate should NOT authorise S17(5) payments.

 

Furthermore, delegates are also required to check periodically that the child is still engaged in that course of study. (See 4.11 for this review process.)

 

The S4(1) definition of 'prescribed child' sets a maximum age of 25 years regardless of subsequent educational courses. Subsection 17(5) payments may not, therefore, be made to a person over the age of 25, even if the course of study continues after that 25th birthday.

 

The qualifying course(s) of education can be commenced before, or at any time between the ages of 16 and 25. There is no requirement that the period of education should be continuous. It can start and stop and restart during that period as the child's circumstances and preferences dictate (in which case for a person over 16 the S17(5) benefit would stop and start coincident with the conduct of the course.) However, note that any particular period of study must be full time. Part-time attendance at university etc. does not qualify the child for S17(5). Note that payment is not dependent upon the child's academic standard of performance.

 

Note also that it is current policy to continue to pay S17(5) over term holidays and semester breaks, providing that the overall course of study continues uninterrupted after that break.

 

S17(5) excludes children who are 'ordinarily' in employment or who are engaged in work 'on his/her own account'. However it is current policy to interpret 'ordinarily' so as not to exclude students who take casual or part time jobs.

 

Furthermore, students who continue to work in or assist with a family owned business without pay during the period of education (for instance, a family farm or a shopkeeping business) would not be excluded either, as they are not earning 'on his/her own account'.

 

 

 

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-4-determining-srcaadb-lump-sum-entitlements/42-who-prescribed-child

4.3 Dependants other than a spouse/children

On some occasions the deceased ADF employee will have dependants other than a spouse or children. For example, the employee may have been providing the sole support of an aged parent. The apportionment principles outlined in 4.6 are also applicable to these dependants.

Note: No Additional Death Benefit (ADB) lump sum is payable under the Defence Act if the deceased only has 'other' dependants. The ADB lump sum is payable only where there is a spouse or dependent children of the deceased. See 4.12.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-4-determining-srcaadb-lump-sum-entitlements/43-dependants-other-spousechildren

4.4 Liability Where There are No Dependants

Subsection 17(2) is quite clear:

' ...if the employee dies without leaving dependants, compensation is not payable in respect of this injury'

Refer to Part 1.11 for explanation of the meaning of 'dependants'.

Note that a 'dependant' as defined by S4(1) of the SRCA must be 'dependent' upon the employee for economic support.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-4-determining-srcaadb-lump-sum-entitlements/44-liability-where-there-are-no-dependants

4.5 Economic Dependency

It may be the case that a person is held not to be wholly dependent for economic support on an employee if that person is also, in addition to that employee's support, in receipt of:

  • a form of State or Commonwealth income support by way of unemployment benefit or job search allowance or education allowance etc.
  • Centrelink sickness or invalidity payments
  • State or Commonwealth workers compensation payments for incapacity for work, and/or
  • any other Government or charity income replacement scheme.

This would be the case if that person was at least partly relying on that payment for their economic support.

However, as indicated in 1.16, the receipt by the person of such a payment does not of itself preclude a determination that the person was wholly dependent for economic support on the deceased.  Further, some Government benefits are excluded by the Act – or by Defence Determination – from consideration when a delegate is determining the state of economic dependency (on the employee) of a particular dependant.

Subsection 4(7) of the SRCA says:

In ascertaining, for the purposes of this Act, other than Subsection 17(5), whether a child is or was dependent upon an employee, any amount of:

a)family tax benefit calculated under Part 2 or 3 of Schedule 1 to the A New Tax System (Family Assistance) Act 1999 (an individual's Part A rate), and

b)carer allowance under that Act, and

c)double orphan pension under that Act,

shall not be taken into account.

A similar limitation on taking account of Government benefits is in the Defence Determination.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-4-determining-srcaadb-lump-sum-entitlements/45-economic-dependency

4.5.1 No Economic Dependants

Where a person can be described by one of the categories of familial relationships specified in the definition of 'dependant' at s(4)1, but nevertheless can not demonstrate economic dependence on the deceased, that person can not be a 'dependant'. Nothing is payable under S17 of the SRCA to such a person.  Read also 1.10 of this chapter, as this also deals with this topic.

 

Where there were no persons 'dependent for economic support', nothing is payable under Section 17 of the Act in respect of that death.

 

Furthermore, the Additional Death Benefit (ADB) under the Defence Act is payable only if:

10.5.5 ' (1)(c.)...SRC compensation in respect of the injury is payable to, or for the benefit of, the spouse or 1 or more dependent children...'

and therefore in such circumstances, nothing is payable under the Defence Act either.

 

 

 

 

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-4-determining-srcaadb-lump-sum-entitlements/45-economic-dependency/451-no-economic-dependants

4.6 Determining the Lump Sum Option to be Paid

Where an injury to an employee results in death, section 17 provides for the payment of lump sum compensation to the dependants of the employee, who were wholly or partly dependent on the employee at the date of the employee's death.

 

Determination of the amount of lump sum compensation payable under section 17 requires the delegate to establish whether the various 'dependants' – i.e. those who are candidates for sharing in the payment – were wholly or partially dependent (on the deceased employee) for economic support.

 

Subsection 17(3) and subsection 17(4) of the SRCA prescribe the two lump sum options (based on whole or partial dependence) that are to be paid out under the section in the circumstances of either whole or partial dependence, as follows:

  • whole
  • if at least one of the dependants was wholly dependent on the deceased employee at the date of death, the whole of the maximum sum prescribed in the Act must be paid to those dependants - ss17(3);
  • There is no provision to divide up a lesser compensation amount;
  • partial
  • if none of the dependants were wholly dependent on the deceased employee at the date of death, but were partially dependent on the employee at date of death, an amount up to, but not exceeding the compensation maximum lump sum is payable to those dependatns- ss17(4).

 

This distinction between dependants as either wholly or partly is made only to quantify the total amount of compensation payable under subsection 17(3) and subsection 17(4).  Once that is determined, subsection 17(8) governs the relevant considerations for apportionment of the lump sum – that is 'losses suffered' irrespective of whether the dependant was wholly or partly dependent.  Read 1.12 of this chapter of the Handbook for guidance as to what constitutes partial dependency upon the deceased.

 

* Note: current death lump sum rates can be accessed via the following link     

.

 

 

Where there are no wholly dependent persons, the total amount disbursed may be less than the statutory maximum payable. Furthermore, the individual's share of that lesser total is for DVA to determine, 'having regard to any losses suffered' by that person.

 

  • In Re: Ranck and Australian and Overseas Telecommunications Corporation (1993) the Tribunal held that 'losses' in S43(4) of the 1971 Act meant 'the actual and potential loss of income support suffered by the dependant consequent upon the cessation of the deceased's earnings'. Other losses (or gains) resulting from the employee's death were not relevant.

 

The amount of the loss is determined by the delegate with the total compensation amount disbursed to be no more than the total lump sum which would have been available to wholly dependent persons. Unlike Ss17(3) there is (depending on the extent of the loss) no requirement to disburse the whole amount available.

Summary

Where there is one or more wholly dependent 'dependants', the whole (maximum) S17 lump sum is paid and divided among all dependants, whether they were wholly or partly dependant, giving regard to any losses suffered by those dependants as a result of the cessation of the employee's earnings.

Where there are only partly dependent dependants, DVA may at its discretion pay a lesser total benefit, and divide that lesser total to reflect the relative loss of income suffered by each partly dependent person.

 

 

 

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-4-determining-srcaadb-lump-sum-entitlements/46-determining-lump-sum-option-be-paid

4.7 Principles for Apportioning the Death Lump Sum between Dependants

The total amount that is payable under either subsection 17(3) or subsection 17(4) is to be shared among all of the dependants, both wholly dependent and partially dependent. Where compensation is payable to two or more dependants, subsection 17(8) gives broad discretion to determine the percentages of compensation payable to those dependants, having regard to any losses suffered by those dependants as a result of the cessation of the employee's earnings.

Subsection 17(8) uses the phrase 'as Comcare thinks fit' which gives determining authorities (i.e. DVA) discretionary powers and allows them to give broad consideration on how that discretion should be exercised. This broad discretion should be exercised on reasonable grounds such that there are similar outcomes for people in similar situations.

The following principles are to be applied by determining authorities when apportioning the amount of death lump sum compensation payable:

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-4-determining-srcaadb-lump-sum-entitlements/47-principles-apportioning-death-lump-sum-between-dependants

4.7.1 Every dependant is potentially entitled to receive some part of the lump sum

The lump sum payable has to be distributed among wholly dependent (if any) and partly dependent dependants of the deceased employee. Therefore, while subsection 17(8) requires determining authorities to 'have regard to any losses suffered by those dependants as a result of the cessation of the employee's earnings', it merely creates an obligation on the determining authority to consider each dependant (whether wholly or partially dependent on the employee) in apportioning the lump sum in the manner prescribed by subsection 17(8). In assessing a dependant's share of the lump sum, the determining authority could conclude that a 'zero' share is appropriate, given the actual level of financial dependence of the dependant.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-4-determining-srcaadb-lump-sum-entitlements/47-principles-apportioning-death-lump-sum-between-dependants/471-every-dependant-potentially-entitled-receive-some-part-lump-sum

4.7.2 The lump sum may be distributed unequally between the deceased employee's dependants

Any lump sum compensation does not have to be distributed equally between the dependants. Determining authorities have discretion to determine the size of each dependant's share, so the shares may or may not be equal. This is made clear by the wording contained in subsection 17(8), 'Comcare shall determine the shares of those dependants in that amount as Comcare sees fit'.

The focus of the decision-making process when determining apportionment should be the losses suffered by each dependant as a result of the cessation of the employee's earnings

The wording in subsection 17(8) of the SRC Act, 'losses suffered by those dependants as a result of the cessation of the employee's earnings,' must be the focal point when deciding apportionment of the lump sum compensation under section 17.

Section 4 defines 'dependant' as being 'dependent for economic support'. Consequently the reference to 'cessation of earnings' in subsection 17(8) of the SRC Act makes it clear that apportionment of death lump sum compensation is based on the economic loss that results from the employee's death.

Determining the nature and extent of the economic loss may not be straightforward. For example, a child, who lives with one parent, may visit and stay with the other. Whilst at the other parent's home all expenses are met. In determining the relative loss of the child after the death of the non-custodial parent, it may be appropriate to consider not only child support payments, but also the value of economic support the child received while visiting the non-custodial parent.

Section 17 provides for the maximum payment of a specified lump sum. That sum is not reflective of the monetary value of the income lost as a result of the employee's death—otherwise the lump sum would vary depending on the dollar value of the income of the employee. For similar reasons, this section does not seek to replace the dollar value of the financial loss suffered by the dependant. Rather than the actual financial loss, the section seeks to allocate the lump sum in proportion to the relative loss  suffered by each dependant.

It may be appropriate that, after considering the losses suffered by the dependants, each dependant will receive part of the lump sum. It may further be appropriate, after considering the relative positions of each dependant, to apportion the majority of the lump sum to the dependent spouse, given he or she will be responsible to provide ongoing economic support for the child or children while they continue to be dependent. A smaller proportion might then be allocated and held in trust for a wholly dependent child or children. This is only an example of what may be appropriate in one set of circumstances and is not intended to be prescriptive. The Determining Authority must exercise its discretion and apportion the lump sum as it thinks fit, having regard to any losses suffered by each of the eligible dependants.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-4-determining-srcaadb-lump-sum-entitlements/47-principles-apportioning-death-lump-sum-between-dependants/472-lump-sum-may-be-distributed-unequally-between-deceased-employees

4.7.3 Economic loss is to be ascertained by reference to the sources of economic support available to each dependant at the date of the employee's death

The most appropriate way to ascertain the economic loss that a dependant has suffered as a result of the cessation of the employee's earnings is to consider all the sources of economic support that each dependant had at the date of the employee's death and to determine what proportion of support was constituted by the employee's earnings.

It will not be appropriate to consider superannuation (or life insurance policies etc.) as a form of economic support as there is separate legislation dealing with superannuation entitlement in the event of an employee's death. In ascertaining the totality of economic support available, the following should not be taken into account:

  • an amount of compensation paid or payable under the SRCA before the death of an employee, consistently with subsection 17(7) of the SRCA; or
  • compensation available for a prescribed child under ss 17(5) (weekly compensation)

For a dependent child, consistent with subsection 4(7) of the SRCA, the following must not be taken into account:

  • family tax benefit calculated under Part 2 or 3 of Schedule 1 to the A New Tax System (Family Assistance) Act 1999 (an individual's Part A rate); and
  • carer allowance under that Act; and
  • double orphan pension under that Act.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-4-determining-srcaadb-lump-sum-entitlements/47-principles-apportioning-death-lump-sum-between-dependants/473-economic-loss-be-ascertained-reference-sources-economic-support

4.7.4 The time period during which the employee could reasonably have been expected to continue supporting each dependant should be taken into account

When ascertaining the loss that each dependant has suffered, it is appropriate to give consideration to the length of time that the deceased employee could reasonably have been expected to continue supporting that dependant.

For a spouse or partner, it is reasonable to assume that the relevant period of loss is from the date of the employee's death until the date when he or she would have reached statutory retirement age. This is because that period has a causal connection with the cessation of the employee's earnings. This may also be the relevant period of loss for other dependants such as a disabled child whose economic dependence is likely to continue throughout their lifetime.

For a dependent child, it may be reasonable to assume, in many cases, that the relevant period of economic loss is from the date of the employee's death until the child reaches 18 years of age, unless they are in full time education. However, the use of this age is for illustrative purposes only, and not prescriptive. In determining the likely period of a dependant's economic dependence, the decision maker must exercise his or her discretion, having regard to the total circumstances of the case.

For example:

The period (in weeks) over which the employee could have been expected to continue to provide economic support is established considering:

  • the shorter of the employee's (had he/she not been killed) or the dependant's life expectancy (using the Australian Statistician's 'Life Tables' referred to in Sect 137 of the SRCA)
  • in the case of children under 16 – when he/she will be reaching 25
  • in the case of children between 16 and 25 – either when he/she will reach 25 OR the anticipated completion of the course of study (whichever is earlier).

The delegate retains discretion to adopt a different approach

The decision maker should clearly document the relative apportionment of the lump sum to all dependent dependants, especially in situations where the delegate has reasons to adopt a different approach to the apportionment of the lump sum between the various dependants, or if he or she considers that the application of the above principles would produce a result which would not reasonably correspond with the respective economic losses suffered by each of the dependants.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-4-determining-srcaadb-lump-sum-entitlements/47-principles-apportioning-death-lump-sum-between-dependants/474-time-period-during-which-employee-could-reasonably-have-been-expected

4.8 Guidelines for Apportioning the Lump Sum

It is recognised that apportioning the lump sum based on individual calculations for each claim will produce quite variable decisions between claims.  In order to produce some consistency and fairness the following guidelines may be followed:

  • Spouse: Should generally not get less than 75% of the lump sum.  If there is only a dependent spouse they will receive 100% of the lump sum.
  • Children (when there is also a spouse):
  • The sum of the compensation for all dependants other than the spouse, should generally not exceed 25% of the total of the lump sum.
  • A wholly dependent child should not receive less than 5% of the lump sum (in most situations). For example: if there are more than 6 wholly dependent children then 25% of the lump sum would be split between the 6 children. 
  • A partly dependent child should not receive more than a wholly dependent child.
  • Children (when there is no spouse):
  • A partly dependent child should not receive more than a wholly dependent child.
  • Dependants (other than a spouse or child): should not receive more than a wholly dependent child.

There may be cases where a spouse is not wholly dependent on the deceased veteran. In such cases the percentage portions of the lump sum outlined in the above guidelines should be varied according to the dependency of each dependant.

For example;

At the time of death, a veteran was separated from their legal spouse and also had four dependant children. Two of the children lived with the veteran, while the other two lived with the veteran's spouse.

In this case, the spouse has been assessed as partly dependent along with the two children not living with the veteran at the time of death, while the two children living with the veteran are assessed as wholly dependent dependants.  The whole S17(3) payment would be distributed amongst the eligible dependants (including the spouse) based on their dependency.

Delegates have the discretion to determine the distribution of the death lump sum between dependants as they see fit.   Delegates will need to clearly outline the reasons for how the lump sum is apportioned.

 

 

 

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-4-determining-srcaadb-lump-sum-entitlements/48-guidelines-apportioning-lump-sum

Last amended

4.9 Calculating the Amount of Economic Loss

Calculating the amount of economic loss can be tricky and each case will need to be determined on its own merits.

The delegate must consider the following factors and nothing else:

1. The financial loss suffered by the dependant as a result of the death

2. The length of time that the dependant would have been dependent on the deceased employee.

 

It is important to remember that the death lump sum is compensation for loss of economic support and does not compensate for emotional distress as a result of the death.

 

Things to consider when establishing economic loss:
  • The income of the deceased employee
  • The financial position of the deceased employee and their spouse i.e. if they have joint debts - mortgage, car loans etc, payment of bills
  • Whether dependants will be left in the care of the spouse
  • Age of dependants
  • Amount of Child Support payments the deceased made to dependants plus any other additional  payments i.e. school fees, gifts etc.
  • Length of time these payments to dependants would have continued
  • Percentage of care of dependants and the costs associated with that care i.e. food, clothing, entertainment

 

 

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-4-determining-srcaadb-lump-sum-entitlements/49-calculating-amount-economic-loss

4.9.1 Where total payable to all of the dependants exceeds Ss17(4) limit

When the total amount of compensation calculated exceeds the maximum amount payable, the maximum rate will need to be apportioned between the dependants.  The payments may be reduced proportionately to fit within the limit.

For example:

The maximum rate payable under section 17(4) is $492,145.52 (as at 1 January 2014).  The delegate calculates the total payment due to 2 partial dependants is equal to $550,000.  This exceeds the maximum rate payable.  To reduce each payment proportionately, the delegate applies the following formula:

Dependant 1's notional amount is $450,000:

$450,000 x $492,145.52/$550,000 = $402,664.52

Dependant 2's notional amount is $100,000:

$100,000 x $492,145.52/$550,000 = $89,481.00

Total amount of payments now equals $492,145.52 (the maximum rate).

However, the delegate retains discretion to adopt a different approach.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-4-determining-srcaadb-lump-sum-entitlements/49-calculating-amount-economic-loss/491-where-total-payable-all-dependants-exceeds-ss174-limit

4.9.2 Examples

Example 1

In Re: Buck and Comcare (1999), the Tribunal awarded an amount of $2,000 to a partly dependent adult daughter of a deceased employee. The Tribunal calculated this amount by reference to the amount of financial support being provided by the employee at the date of his death ($50 – $100 per week) and the period for which it considered the support was likely to have continued but for the father's death (i.e. up until the time when she subsequently found employment).

Example 2

The following example is an abbreviated version of the AAT decision in 'Cook and Thales Australia Limited and Cook (Joined Party) and Comcare (Joined Party) [2013] AATA 67 (13 February 2013)'.

http://www.austlii.edu.au/au/cases/cth/AATA/2013/…

Gary dies as a result of a compensable injury.  He is survived by his wife and son (from a previous marriage).  His son is 15 years old at the time of his death.

His spouse is considered a wholly dependent dependant and as such the full amount of lump sum compensation is to be divided between the dependants.

In making its decision, the AAT considered the financial loss of each dependant.

Gary's son (Haydn):  Haydn lived for the majority of the time with his mother and visited his father and step-mother during school holidays. Gary paid approximately $7,000 per year in Child Support payments as well as giving his son gifts and other assistance during his stays.  It was estimated Haydn lost economic support of approximately $10,000 per year for four years (when he would have graduated from high school and gained employment).

Gary's Wife (Teena): Teena and Gary shared finances, including a joint mortgage on their home.  Gary was the primary income earner in their relationship.  Gary earned approximately $47,000 per year in income and paid $7,000 in Child Support payments.  It was estimated that Teena lost economic support of approximately $20,000 per year.  She would have continued to receive this support until Gary reached retirement age (a further 7-12 years).

The AAT awarded 87.5% of the lump sum to Gary's wife ($360,500) and 12.5% to Gary's son ($51,500) (rates current at the time of the death).

Example 3

Lisa dies as a result of a compensable injury.  She is survived by a husband and two children aged 6 and 8 years old, who were all living with her at the time of her death.

All of Lisa's dependants are considered wholly dependent and as such the full amount of lump sum compensation is to be divided between them.

The delegate considers the financial loss of each dependant.  Lisa worked part-time and earned $30,000 per annum and the couple met the expenses of the household jointly, including a joint mortgage.  Given that the household will now have a single income, and Lisa's husband will be responsible for the ongoing care and support of the children, the delegate decides to apportion the majority of the lump sum to him.  The delegate awards 80% of the lump sum to Lisa's husband and 10% each of the lump sum is held in trust for Lisa's children.

Example 4

John dies as a result of a compensable injury.  He is survived by two children, an 8 year old son and an 18 year old daughter.  John had custody of his son 2 nights a fortnight and no longer had contact with his daughter.  Neither of his children were wholly dependent on John.

The delegate apportions the lump sum based on the economic loss that each dependant has suffered.  The amount paid may be less than the maximum amount payable as there are no wholly dependent dependants.  The delegate considers the financial loss of each dependant.

John's daughter (Bianca): Bianca lived with her mother and was attending university fulltime. She had 3 years of study remaining when her father died. John was paying Child Support payments at a rate of $90 per week.  The delegate considers the period in which John could have been expected to continue paying Child Support payments was 156 weeks (3 years) until she completed her study.  It was estimated Bianca lost economic support of $14,040.

John's son (Zak): Zak lived with his mother for 12 nights of the fortnight, and spent 2 nights per fortnight with his father.  John was paying Child Support payments at a rate of $70 per week as well as paying half of Zak's education expenses (fees, uniforms. camps etc). John purchased gifts and clothing for Zak on a regular basis along with birthday, Christmas presents etc. The delegate calculates that John could have been expected to continue to provide economic support until Zak is 25, another 17 years.

The delegate calculates the amount of economic support for Zak as:

Child Support Payments

$3,640 per year

Education expenses

$   400 per year

Gifts

$1,000 per year

Household expenses (2nights)

$1,200 per year

Total

$6,240 per year

The delegate considers the age of the child and decides that it is reasonable that these costs would increase as Zak gets older, the delegate estimates that from age 13 these costs would increase to approximately $10,000 per year.

4 years x $6,240

=

$24,960

+ 12 years x $10,000

=

$120,000

Total

=

$144,960

The delegate awards $14,040 to John's daughter, Bianca and awards $144,960 to John's son, Zak.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-4-determining-srcaadb-lump-sum-entitlements/49-calculating-amount-economic-loss/492-examples

4.10 Weekly Payments to 'Prescribed Children'

Subsection 17(5) of the SRCA says:

17(5) If:

a)a prescribed child was, at the date of the injury or at the date of the employee's death, wholly or mainly dependent on the employee

b)a prescribed child, being a child of the employee, was born after the employee's death, or

c)a prescribed child would, if the employee had not died, have been wholly or mainly dependent on the employee

the MRCC is liable to pay compensation at the rate of [$40]* per week and that compensation is payable to the child, or in accordance with the directions of, the MRCC for the benefit of that child from the date of the employee's death or the date of the birth of the child, whichever is the later.

* [In 1988. See MCRI-2 for latest (updated) amount]

Note that for this benefit to be payable, the prescribed child must have been 'wholly or mainly' dependent upon the employee 'if the employee had not died'. This wording also covers children of the employee who are born after the employee's death.

The coverage of prescribed children 'wholly or mainly' dependent on the employee means that eligible children will include:

  • children and step-children of the employee who are living with the employee – they are deemed to be wholly dependent (see 1.13)
  • children of the employee living apart from the employee who are, nevertheless, considered to have been wholly or mainly dependent on that person.
Eligibility for Weekly Payments

Both wholly and 'mainly' dependent 'prescribed children' are equally eligible for weekly payments payable under section 17(5). Refer to Part 1.18 for explanation of the 'prescribed child'.

What constitutes 'Mainly' Dependent?

The Federal Court has made it clear, when discussing the similar phrase 'wholly or substantially', that the term 'mainly dependent' means something less than 'wholly' but more than merely 'insubstantial';  the phrase could be paraphrased as 'in the main dependent upon another person'. (SDSS v Wetter (1993) 40 FCR 22).

That is, there is a gradation from not dependent, to partly dependent to mainly and finally to wholly dependent.  Each of these terms must be given a meaning and each claim of dependency, where the claimant was not living with the deceased immediately before the death, must be considered against each before deciding which one applies.  As the existence or quantum of compensation may depend on this decision careful analysis is required in each case

When determining whether a prescribed child was wholly or mainly dependent on the deceased, the same basic principle as that outlined in 1.16 for determining whether a person was wholly or partly dependent applies.  That is, the significant question is the extent of the reliance by the child on the deceased immediately before the death, as opposed to the ability of the child or of a surviving parent to maintain the child.  Whether or not this is the case and to what extent will not always be readily apparent.  Thus, in Aafjes v Kearney (1976) 8 ALR 455, Mason J says:

The fact that at the date of death a daughter was being supplied with some of the necessities of life by some third person does not necessarily mean that she was not then wholly dependent for her support upon her father. Obviously enough if the assistance provided by the third person was only intermittent or casual, and unlikely to be continued in the future, it would not prevent the daughter from being wholly dependent on her father.  But even if the assistance was substantial and likely to be continued, it would not necessarily have the effect that the child had to be regarded as a partial dependant of her benefactor and therefore as not wholly dependent on her father. For example, a child whose home was in the country and who lived with her grandparents while attending a school in the city would not for that reason alone cease to be wholly dependent upon her father.

As previously indicated, the application of the law is not straightforward and each case has to be considered on its own facts.  However, the following examples may be of some assistance:

  1. a member and his partner (Stephen and Melinda) have separated and their child lives with Melinda.  Stephen pays $500 per fortnight into a bank account for Melinda and the child.  Melinda is a senior public servant earning a substantial salary of her own.  Therefore she allows the money that Stephen pays her to accumulate so that every two years she and her daughter can go skiing.  Their living expenses are fully met from Melinda's salary.  In this case, following Stephen's death on service, the delegate might find that neither Melinda nor the child were even partly dependent on the member. 
  2. a member and her partner (Margaret and Julie) are in a de facto relationship and Julie has a child from an earlier relationship.  Julie and Margaret subsequently separate.  Julie earns a good salary but Margaret, who still considers herself to be the child's step-parent and maintains contact with the child, pays $300 per week to ensure that the child is well looked after.  Julie has agreed to use that money specifically for that purpose and it is clear from bank statements that she has kept her word.  As a result she only has to use a small amount of her own income to support her child.

    A year later Margaret is killed on defence service.  Although Julie is earning a good salary and can easily afford to maintain her child, she was in fact only contributing a small amount of money towards the cost of maintaining her child.  In this case the child would be at least mainly dependent on Margaret immediately before her death.

Where a delegate and their team leader are unable to make a decision on a particular case the details of the case should be referred to the Compensation Advice Line for advice.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-4-determining-srcaadb-lump-sum-entitlements/410-weekly-payments-prescribed-children

4.11 Review of S17(5) Weekly Payments to 'Prescribed Children'

Delegates are required to obtain a copy of the birth certificate of any 'prescribed child' with a SRCA entitlement. This certificate is required as a condition of payment. Therefore the age of a person subject to Ss17(5) payments should be known to the case-managing delegate, and should be prominently displayed both on the payment file and also on the Defcare process screen.

Where the child is still under 16 years old, the entitlement to this benefit need not be formally reviewed (other than to annually update the weekly amount payable).

However delegates should still make contact at appropriate intervals to ensure the entitled child is still living with the adult to whom payment is made. Telephone contact would suffice in such cases (providing the delegate takes a comprehensive note of the conversation).

Delegates should also write to the child's parent or guardian 12 months before that child turns 16 to advise that adult:

a)Payment will cease either at the child's 16th birthday, or at the end of the academic year in which the child turns 16 (depending on whether the child continues at school to the end of that year), UNLESS continuing with full time education

b)Early advice of intentions will allow for continuity of payment after 16th birthday.

d)Any overpayments due to incorrect notification will be repayable to the Department.

There is a letter for this purpose available in the Defcare Standard Letter suite

Subsequently, annual checks should be undertaken at the end of each academic year. An annual review form is available in the Defcare Standard Letter Suite. At the end of the school year a review task will be generated for all children over 16 who are in payment. The annual review form should be sent (to the parent if the child is under 18 and to the child themselves if they are over 18) as soon as possible after this task appears. The form should be returned before the new school year starts to avoid any overpayment for children not continuing in full-time education (further discussion about what is considered to be full-time education can be found in chapter 36.3.4 of the Incapacity Handbook).

Where it is evident that the child may soon alter or defer or leave the course of education, the delegate should naturally maintain a closer liaison. At all contacts, delegates should remind the relevant parties that overpayments (i.e. payments which continue because the Department was not advised of the termination or suspension of education) will be recovered in full.

Where the child has availed his/her self of the assistance of the Veterans' Children's Education Service – and note this is a service available to dependent children where the employee's death is covered by the ADB – these details can be sought from the VCES delegates in that State Office.

Where the 'child's' program of education continues up to and beyond his/her 25th birthday, the Delegate should warn or remind that person that S17(5) payments will terminate on that 25th birthday. There is no discretion under the Act to continue payments to the end of the academic year in which that birthday falls. The payments must end no later than that birthday.

Delegates should give due warning/reminder of intent to cease payment at 12 months and then at 1 month before that deadline.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-4-determining-srcaadb-lump-sum-entitlements/411-review-s175-weekly-payments-prescribed-children

4.12 Other death benefits

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-4-determining-srcaadb-lump-sum-entitlements/412-other-death-benefits

4.12.1 Additional Death Benefit (ADB)

If compensation is payable to the spouse or children under the SRCA, a further ADB lump sum under the Defence Act may also apply. The ADB amount paid to the spouse is not shared with anyone else.  A separate 'dependent child lump sum' is payable in respect of each dependent child.

The spouse also and also qualifies for reimbursement of financial advice to a maximum level.

There is no entitlement for a guardian to be reimbursed the costs of financial advice that may be sought regarding the ADB 'dependent child lump sum'. That entitlement is specifically reserved for a spouse.

The ADB lump sum/s are payable only where there is a spouse or dependent children of the deceased.

If there is no spouse, there is no entitlement to the ADB lump sum under the Defence Act but the ADB 'dependent child lump sum' remains payable in respect of each child.  This amount is not payable to a dependent child under 18 nor held in trust by the MRCC, but is paid to the legal guardian of each of the orphaned children for use in the maintenance of and to the benefit of that child. For those 'dependent children' between 18 and 25, the amount should be paid directly to the child.

The ADB to the spouse and the 'dependent child lump sum' are paid at the rate applicable at the date of the member or former member's death. These payments are indexed annually similar to statutory payments made under the SRCA. The manner in which the ADB is paid (and the way this payment interacts with the payments made under S17 of the SRCA) is set out at 1.2.

There is no time limit on applying for the Defence Act Additional Death Benefit, nor is there a one-off election or choice in relation to this entitlement.

Summary

The Defence Act ADB is only payable where the deceased employee leaves a spouse and/or children. The only person other than a spouse to whom an ADB payment can be made, is a legal guardian of an under-age dependent child. In the absence of a spouse or a dependent child of the employee, the ADB would not be payable.

 

 

 

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4.12.2 Education services

The VEA Instrument No.29/2000 made under section 118(2) of the VEA provides that some dependent children under SRCA are eligible to access guidance and counselling services provided under Part 4 of the Veteran's Children Education Scheme (VCES). This access is available to dependent children of a Defence Force member where the Defence Act ADB was payable in respect of the deceased member.     

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-4-determining-srcaadb-lump-sum-entitlements/412-other-death-benefits/4122-education-services

4.12.3 Funeral and medical costs

Reimbursement of funeral costs to a declared maximum level and reimbursement of medical costs (including transportation of the deceased) are payable under Sections 18 and 16 respectively. However, these amounts are reimbursed to whoever actually bore those costs. The Act does not therefore specify any particular payee.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-4-determining-srcaadb-lump-sum-entitlements/412-other-death-benefits/4123-funeral-and-medical-costs

4.13 Lump sums to dependants under the age of 18

Where a 'prescribed child' is under 18, his/her share of the lump sum must be held in an interest bearing trust fund operated by the MRCC, until such time as the child turns 18. See 4.14 for discussion of the procedure for arranging a trust fund and 4.15 for the administration of that fund (including access by parents/guardians).

'Prescribed children' over 18 but under 25 are responsible for their own affairs and must be paid the lump sum directly i.e. not via a trust fund.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-4-determining-srcaadb-lump-sum-entitlements/413-lump-sums-dependants-under-age-18

4.14 Establishment of Trust Funds for 'Prescribed Children'

The “Military Death Claim Compensation Special Account” was established on 23 June 2005 to administer compensation benefits paid under the SRCA and the Military Rehabilitation and Compensation Act 2004 (MRCA) to beneficiaries “that are under a legal disability”.

Prior to July 2005 Comcare managed the “SRCA Trust Account” (STA). Management of the account transferred to DVA under arrangements created by the MRCA and in accordance with the determination detailed above.

The vast majority of the beneficiaries are children under the age of 18 years, who have been awarded compensation following the death of a parent under compensable circumstances. Money is held until the legal disability no longer applies, which is, unless there are exceptional circumstances, when the beneficiary turns 18.

The relevant authority is contained at section 110 of the SRCA.

Therefore, where children are not yet eligible (by reason of age) for a lump sum payment to be issued to them, the Programme Support Branch sets up an interest-bearing trust account for each child. This lump sum portion is kept in trust for them until they turn 18, which is the minimum legal age at which they may receive it.

The delegate should alert the Programme Support Branch of any such proposed decision and advise that a payment will be forthcoming shortly. Email advice will be sufficient and should be directed to the “SRCA Trust” mailbox (which can be found in the Outlook address book). This mailbox is monitored by the Programme Support Branch Business Support section.

Note that s17(10) of SRCA requires that a single determination be made to include all of the S17 claims. The child's payments may not therefore be determined separately to, or earlier than, payments to be made in respect of other claimants.  See also the following parts of this handbook:

  • 2.4 Need for ACCURACY in Death Claims – S56 prohibits 2nd determinations,
  • 4.1.2 The delegates investigation re 'dependants', and
  • 4.1.3 Dependants = claimants?

Following the determination, the delegate of the MRCC will pay the child's money (via Defcare/DOLARS) directly to the Military Death Claim Compensation Special Account by electronic funds transfer (BSB 092-009, Acct Number 009-11751-2).

The delegate should then write to the Programme Support Branch, via the SRCA Trust mailbox, formally requesting that the money be placed in trust for the child. The delegate's letter should be made in the format provided for the purpose, in the Defcare Standard Letter Suite. This letter must identify:

  • the name of the deceased;
  • the applicable DEFCARE Record Number;
  • the beneficiary's name and birth date; and
  • the amount of money payable and to be held in trust along with the contact details of the guardian.

The letter must also enclose a copy of the:

  • Determination re: what monies are payable in respect of the death;
  • Client’s Death Certificate;
  • birth certificate of each of the children whose money is to be placed in trust; and
  • advice regarding payment of money to the trust fund.

The determination, formal letter to the Programme Support Branch and payment of all parties (including the child's portion to the Special Account) should all be accomplished on the same day.

Upon receipt of the formal letter and all attachments, the Programme Support Branch will raise a Beneficiary File and store all correspondence relating to the trust monies. The Programme Support Branch will also ensure that the beneficiary is noted on the Special Account Beneficiary List and will write to the beneficiary to advise that monies have been received and to provide details on how to access funds if required.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-4-determining-srcaadb-lump-sum-entitlements/414-establishment-trust-funds-prescribed-children

Last amended

4.15 Administration of Trust Funds for 'Prescribed Children'

Last amended: 14 August 2013

During the time that the S17 lump sum portion (payable to a child under 18) is held in trust by DVA, the child's parent or guardian may be able to access these funds if it can be shown that this is to the benefit of the child. That parent or guardian may approach the Rehabilitation and Benefits section with a specific proposal for money to be paid from the fund for such things as clothes, school expenses, computers and other items.

The request must be in writing and demonstrate financial need/hardship, the reason the proposed item(s) are required or are to the benefit of the child, contain quotes (for any large expensive items) and as much other information as is required to demonstrate that the request is reasonable.

This submission is to be considered by the Rehabilitation and Benefits section and (if approved) the relevant amount of money will be released.

However, apart from advising parent/guardians of their potential access to these trust monies in the terms set out above, MRCC delegates do not have any role in this process. The money is in the control of the Department and MRCC delegates have no input into the consideration of any request for access to those funds, nor are MRCC delegates a conduit for the on-forwarding of any such request to the Rehabilitation and Benefits section.

Any request for access to funds by the parent/guardian should be made directly by that person to the Rehabilitation and Benefits section and not to or through MRCC delegates. Furthermore, delegates should not be drawn into commenting on the merits of any submission.

Requests can either be sent via email to the “SRCA Trust” mailbox address or via regular mail to the following address:

Director

Rehabilitation and Benefits

Department of Veterans' Affairs

PO Box 9998

BRISBANE QLD 4001

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-4-determining-srcaadb-lump-sum-entitlements/415-administration-trust-funds-prescribed-children

4.16 Guardians of 'Prescribed Children'

Last amended: 14 August 2013

Where a child of the employee is under 18 and shares in the SRCA S17 lump sum, that share is paid into a trust fund operated by MRCC, until the child attains the age of 18. (Refer to 4.13 for details.)

This SRCA amount is not paid to the surviving parent or to the legal guardian or to any other person who has responsibility for the child. However the guardian may in some circumstances and with the consent of the MRCC access that trust fund for the benefit of the child, See 4.14 and 4.15.

If the child is over 18 that SRCA share is of course payable directly to that 'child'.

Guardians and the Additional Death Benefit

Where the employee has no 'spouse' current at the time of that employee's death, the ADB amount is not payable at all, but the 'dependent child amount' in respect of each child is still payable i.e:

(Defence Det 2000/1, Clause 10.5.7)

1.The ADB is payable to the spouse.

2.However sub-clause (3) or (4) applies if the dependent child amount is payable for a child and:

a)the deceased member is not survived by a spouse, or

b)the spouse does not have primary responsibility for the daily care of the child.

3.If the child is under 18, the dependent child amount is payable to a person who has primary responsibility for the daily care of the child.

4.If a child is 18 or over, the dependent child amount is payable to the child.

Therefore, in the case where the employee's death leaves orphaned 'prescribed children', the ADB child amount in respect to each child is paid to the person who has care of that child. This may or may not be the person who is also the legally appointed guardian of that child.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-4-determining-srcaadb-lump-sum-entitlements/416-guardians-prescribed-children

4.17 Administering Weekly Payments to 'Prescribed Children'

S17(5) payments in respect of a 'prescribed child' under the age of 18, must be made to the child's parent or guardian, i.e. for use for, or to the benefit of, that child.

On occasion and in the presence of family discord, prescribed children have sometimes chosen to leave home and live with an adult who is not the court appointed, legal guardian. In that case, the delegate should react pragmatically and pay the S17(5) benefit to the adult who actually has the daily care and maintenance of that child.

In rare cases, a prescribed child who is under 18 years old may leave the care of all responsible adults and live as a homeless transient, i.e. as a 'street kid'. In that case, delegates should arrange to have the S17(5) paid into a MRCC trust fund till that child has turned 18.

Where prescribed children over the age of 18 are entitled to receive Ss17(5) payments, these weekly amounts should be paid directly to the 'child'. Persons over the age of 18 are legally adults and are not prevented from receiving a benefit in their own right.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-4-determining-srcaadb-lump-sum-entitlements/417-administering-weekly-payments-prescribed-children

Ch 5 Determining Death Lump Sums for 1971 Act

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-5-determining-death-lump-sums-1971-act

5.1 Determining Death Benefits under the 1971 Act

Determination and payment of death benefits under Section 43 of the 1971 Act has been discussed briefly at 1.8 of this chapter of the Handbook. Essentially, the provisions of the 1971 Act with respect to death, resemble those of the SRCA and the procedures are very similar.

Delegates should therefore apply the procedures applicable to death payments under the SRCA (i.e. identification of dependants and of degree of dependency, calculation of shares etc.) with the exception of the following points specific to the 1971 Act:

  • No Additional Death Benefit is payable (ADB commenced only on and from 10 June 1997).
  • Those who will have been children under the 1971 Act will now be adults but the child weekly benefit payable for a death under that Act is payable retrospectively, i.e. consolidated into a lump sum.

Where:

A = Number of weeks between date of employees death and date when child ceased full time study

B = Specified payment per week under S43(5) of the 1971 Act

The amount now payable is to be calculated as:

(A x B)

or

minimum total child payment under S43(7)(b),

whichever is the greater.

  • Naturally lump sum portions payable to children of the deceased are not to be placed into trust but paid direct to the entitled person. The 'child' is now an adult.
  • Delegates should use the last rate of compensation payment issued by the Commission before repeal of the Act (i.e. disregarding the year in which the death occurred, all 1971 Act cases determined today are to be paid at the same rates, viz:
  • Death lump sum for division               $59,980
  • Dependent child payment              $24.00 per week
  • Minimum level, total child payments              $2,400
  • Maximum payment, funeral expenses              $1,550

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-5-determining-death-lump-sums-1971-act/51-determining-death-benefits-under-1971-act

Ch 6 Determining Death Lump Sums for 1930 Act

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-6-determining-death-lump-sums-1930-act

6.1 Determining death benefits under the 1930 Act

Determination and payment of death benefits in accordance with the First Schedule of 1930 Act has been discussed briefly at 1.9 of this chapter of the Handbook. The provisions differ rather more from the SRCA than does the 1971 Act, nevertheless:

  • Nothing is payable unless there are dependants wholly or partly dependent on the deceased.
  • The identification of dependants (partial and wholly dependents) should follow the SRCA pattern, see 4.1.
  • There is no fixed proportion of the lump sum which is payable to a child vs a spouse.
  • The First Schedule does not give rules for division of the lump sum between those wholly dependent, and as for those partly dependent the 'Commissioner' is required only to have regard as to what is 'reasonable' and 'proportionate' to the economic loss suffered from cessation of the deceased's support. Due to the lack of firm guidelines specific to that Act, Delegates should apply the SRCA guidelines re: lump sum division at 4.8 to 4.14.
  • As with the 1971 Act there is a child's pension to age 16 only, which naturally (and on proof of entitlement and duration of entitlement) would be paid as a consolidated lump sum. Unlike the 1971 Act (and like the SRCA) there is no minimum child payment.
  • Delegates should use the last rate of compensation payment issued by the Commission before repeal of the Act (i.e. disregarding the year in which the death occurred, all 1930 Act cases determined today are to be paid at the same rates, viz:
  • Lump sum for division               $12,000
  • Child weekly payment              $2.80 per week

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-6-determining-death-lump-sums-1930-act/61-determining-death-benefits-under-1930-act

Ch 7 Other Death Benefits

7.6 [Removed 26 May 2009]

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-7-other-death-benefits

7.1 Transport of the Body to a Hospital, Morgue etc. Section 16

Subsection 16(9) of the SRCA provides for reimbursement of the cost of transporting the employee's body to a hospital, morgue etc. This matter is dealt with in more detail at 1.7 of this chapter of the Handbook.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-7-other-death-benefits/71-transport-body-hospital-morgue-etc-section-16

7.2 Transport of the Body from an Overseas Place of Death.

There is no specific provision within the SRCA or either of its predecessors, in relation to the costs of return of a body from an overseas place of death for burial. However in certain circumstances the S16 provisions relating to the transport of an employee's body to a hospital, morgue, undertaker etc. can be held to apply to the costs of transport to a morgue etc in Australia. This matter is dealt with in more detail at 1.7 of this chapter of the Handbook.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-7-other-death-benefits/72-transport-body-overseas-place-death

7.3 Funeral Costs - Section 18

Section 18 of the SRCA provides for reimbursement of the costs of the funeral of a deceased employee to the level of a certain maximum benefit. This matter is dealt with in more detail at 1.6 of this chapter of the Handbook.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-7-other-death-benefits/73-funeral-costs-section-18

7.4 Permanent Impairment in the Period before Death

Claims for lump sum compensation for permanent impairment may be made and paid after the death of the employee providing that the degree of permanent impairment can be properly assessed retrospectively, e.g. by the doctor who was treating the employee before the death. However with respect to posthumous permanent impairment assessments S55(4) also says:

55(4) This section does not apply in relation to a claim for compensation under Section 27.

This means that only the Section 24 amount can be paid to the estate of a deceased employee. The 'Non-Economic Loss' (i.e. the S27 component of a lump sum) is not payable in such cases.

Where an employee suffers a long and terminal illness, it is reasonable to pay a series of lump sums to reflect the increased impairment i.e. while the person is still living and enduring that impairment.

However Delegates should resist the proposition which is sometimes made, that the death of any employee from other than instantaneous (i.e. accidental) causes, demonstrates a maximum impairment on the appropriate table(s), i.e. even if this level was reached only moments before death. Delegates should not pay posthumous lump sums in such circumstances, but bear in mind that the purpose of Sections 24 and 27 is to compensate an injured employee for the effects of having to live with the impairment. It is not appropriate, for example, to pay a PI lump sum to a person involved in an ultimately fatal accident simply because that person did not die instantaneously but – for example – survived for an hour or perhaps for a week in hospital.

However it is not possible to be prescriptive regarding the circumstances in which it may be possible to award a permanent impairment lump sum. Each case must be considered on its own merits having regard to the effects of an injury on the individual.

Clearly, it is a matter for judgement of the delegate on the facts of each individual case, whether it would be reasonable to pay a permanent lump sum to the estate of a deceased employee. However, where such a case arises and a delegate is under pressure to award lump sum compensation, the matter should be discussed with the local Manager/Team Leader and where necessary, referred to Policy for consideration.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-7-other-death-benefits/74-permanent-impairment-period-death

7.5 Payment for Financial Advice

Where a payment of ADB is made to a spouse the claimant is also entitled to payment of fees for advice from a registered financial adviser. Such can be either a reimbursement of actual expenses as supported by receipts or the payment of a properly rendered tax invoice. There is a ceiling on the amount that can be paid. This ceiling is indexed each year (current rates are available in Clik).

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-7-other-death-benefits/75-payment-financial-advice

Ch 8 Making Determinations re Death

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-8-making-determinations-re-death

8.1 Form of the Lump-Sum Determination

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-8-making-determinations-re-death/81-form-lump-sum-determination

8.1.1 General requirements

Subsection 17(10) of the SRCA requires that in the case where there are several claimants who are claiming compensation for a death, delegates must make one determination only in respect of all of those claims. Additionally, Section 56 of the SRCA requires that once the determination for death benefit has been issued and paid, no other claimant can be included. This issue has been dealt with in more detail at 2.4.

The Defcare standard letter database contains two death determination templates. The first relates to the general case involving SRCA/ADB issues only, payable specifically to a 'spouse' and the second differs only in appending advice on 'offsetting arrangements' i.e. where a claimant may have an additional entitlement to a VEA widow's pension or other VEA benefits. The second version (i.e. including advice on offsetting) is a determination to the effect that compensation is payable but this SRCA amount will not be paid unless the client signifies consent by returning an attached form.

Both of these standard-letter death determination templates relate to only the simplest death case, i.e. where the deceased ADF member left a wholly dependent spouse living with wholly dependent children. Neither form of determination is appropriate where the delegate may be dealing with a dependant other than a spouse, more than one wholly dependent adult dependants, dependants now living apart from each other, or (e.g.) several partly dependent dependants etc.

These standard templates will therefore, in many cases, require some modification to be useful or valid forms of determination. To meet the requirements of Ss17(10) over a very wide range of possible circumstance, plus the need to properly advise all parties to the determination (including those applicants who did not achieve a payment) and the need to allow an applicant to exercise options under the VEA, delegates should construct a determination tailored to the circumstances, as follows:

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-8-making-determinations-re-death/81-form-lump-sum-determination/811-general-requirements

8.1.2 Where the only entitled persons are a spouse resident with employee and joint children of the employee and that spouse

(and furthermore there were no other applicants) the basic 'Death Determination' template in the Defcare database may suffice.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-8-making-determinations-re-death/81-form-lump-sum-determination/812-where-only-entitled-persons-are-spouse-resident-employee-and-joint-children-employee-and-spouse

8.1.3 Where there is only one entitled person and that person is not a spouse

(and furthermore there were no other applicants) the basic 'Death Determination' template in the Defcare database may be modified to suit the circumstances:

  • Firstly by deleting the words 'your spouse' in the first line and substituting the employee's full name.
  • Secondly by changing the reference to 'spouse amount under S17 of the SRCA' to 'primary SRCA amount' or similar phrase, or alternatively and by deleting the reference to the SRCA child's amount entirely if this amount is not payable.
  • Thirdly by removing any reference to the spouse amount under the Defence Act (i.e. not payable) and/or reference to the child's amount under the Defence Act if appropriate.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-8-making-determinations-re-death/81-form-lump-sum-determination/813-where-there-only-one-entitled-person-and-person-not-spouse

8.1.4 Where there is more than one entitled person or alternatively there was more than one claimant,

 

Ss17(10) requires that the whole matter be resolved by a single determination. This does not, however, mean that information about amounts payable to all dependants should be made available to all.  Therefore, unless an adult has claimed on behalf of both themselves and a child under 18, where the delegate determines that more than one person is entitled to share a lump sum under subsection 17(3) or 17(4), the standard Defcare template is not an appropriate template.  Instead an alternative letter is being included in Defcare that relates specifically to this situation.

 

Using the alternative letter, the delegate will advise each of the entitled persons separately of the amount payable to them.  If the partner has claimed on behalf of a child under 18, information about the amount payable to that child will be sent to the partner.

 

A different version of this determining instrument is to be sent to each of the adult dependants. 

Letters to persons who applied for compensation but who did not receive payment should give reasons for the decision.

 

Letters to partly dependent persons who did achieve a share in the lump sum, should explain how the amount payable was quantified, i.e. the formula used for calculating 'loss', and the data entered into that formula.

In summary, each letter should set out the reason for the decision and should also attach the DVA Factsheet about Reconsideration/Appeal Rights.

 

 

 

 

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-8-making-determinations-re-death/81-form-lump-sum-determination/814-where-there-more-one-entitled-person-or-alternatively-there-was-more-one-claimant

8.2 Form of Determinations for S16 (Medical, Transport) and S18 (Funeral)

Reimbursement of the costs of medical attention to the dying employee, transport of his/her body and the costs of a funeral are payable not to any particular dependant on the basis of relationship, but to the person who actually paid that cost. This may of course be a person other than a spouse or child or even someone other than a 'dependant' of any description. Furthermore where those S16/S18 services remain unpaid, the appropriate amount as allowed by the SRCA may be paid by directly to the provider (i.e. doctor, ambulance service, undertaker).

Ss17(10) requires a single determination only where the claim is for compensation under Section 17. Thus, there is no reason why S16 and S18 entitlements need to be dealt with in the same determination that awards the S17 lump sums. In fact, it is more efficient and convenient in most cases to determine such matters separately.

The existing Defcare standard letter/determination with respect to Section 17 death entitlements (i.e. a determination format which assumes a spouse and joint children as the only entitled persons) includes, as the 'default' entitlement, provision for S16 and S18 determinations. These may be retained if convenient but in most cases – and no matter who may be entitled under S17 – the service providers will be pressing for payment well before the S17 matter is ready for determination. In this case it is recommended that the delegate make a separate determination in respect to these reimbursements.

Where paying the service provider direct, it is not enough to simply pay the account via Defcare/Dolars. Delegates will also need to raise a formal determination under S16 or S18. This should take the form of a letter to the claimant/provider. Where the claimant is also the service provider, delegates should make a separate determination for each service, i.e. as many determinations as there are providers, in order to preserve privacy and the business confidentiality of those providers.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-8-making-determinations-re-death/82-form-determinations-s16-medical-transport-and-s18-funeral

8.3 Clearance/Offsets where Dual Liability (VEA/SRCA) Exists

Occasions may arise when one of the persons eligible to receive compensation under S17 of the SRCA also has a potential entitlement under the Veterans' Entitlements Act (VEA). This may occur, for instance, if the ADF member dies while on declared Operational Service overseas.

Where a spouse or child may have a dual entitlement, offsetting provisions of the VEA may reduce or eliminate that VEA entitlement to pension, should the spouse or child accept a S17 lump sum under the SRCA. It is therefore the delegate's duty of care to ensure that a dependant with potential for establishment of a dual entitlement is aware that these offsetting provisions exist.

The 'death' section of the Defcare standard letter database contains in fact, two determination letters, both identifying only the employee's spouse (and their joint children) as a lump sum recipient. One of those alternative letters contains an additional section entitled 'Important Offsetting Provisions' which informs the spouse or guardian of the potential for SRCA lump sums to affect VEA pensions, and advises the spouse or guardian or guardian to contact the Department for more detail, if required. The letter tells the spouse or guardian that although the delegate has formally determined that compensation is payable, actual payment will not be made till the spouse or guardian completes and returns an enclosed form accepting the payment.

That method of providing advice may still suffice, but only in those specific circumstances i.e. where the dependant is the only claimant. Where several adult individuals are involved in a joint determination as required by S17(10) the matter of whether the spouse is to refuse payment should be resolved well before the joint determination is issued.

Delegates should therefore write to the spouse after the amounts payable are known but prior to issuing any determination. This advisory letter should list only those amounts which may be payable to that spouse (i.e. not include amounts payable to others) and it should be clearly stated that this is a preliminary advice of amounts which will become payable shortly, and it is not itself a determination. Note: Payments made under the Defence Act 1903 are not part of any offsetting arrangements hence this advice should relate only to payments made under S17 of the SRCA. The letter should then insert the form of words used under the heading 'important offsetting arrangements' in the current Defcare letter. This section advises the widow to seek financial advice prior to making any decision regarding compensation. The letter should also enclose the form 'Election to receive compensation under S17...'

The spouse should be given 14 days to return the election form. The letter should tell the spouse that if the entitlement is not declined by means of that form within 14 days, the amount indicated would be paid. Nevertheless, in practice no payment can be made until the spouse provides his/her bank account details so that the money can be deposited therein. This may well extend the 14 days.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-8-making-determinations-re-death/83-clearanceoffsets-where-dual-liability-veasrca-exists

8.4 Advice to Clients re: Right to Sue Commonwealth in Lieu of Compensation

Note: This section is only about the advice to be provided to persons inquiring about the possibility of taking legal action against the Commonwealth for the death. The actual interaction of S17 and S44 is dealt with in more detail at 9.1 to 9.12.

Section 44 of the SRCA prevents persons taking legal action against the Commonwealth in respect to any circumstance for which the SRCA provides compensation, EXCEPT that an employee's dependent does retain a residual right to sue the Commonwealth in the case of death only. The relevant court would determine the matter on the basis of the dependant's demonstrated financial losses due to the death. The court would also take the Commonwealth's negligence and the employee's contributory negligence into account.

Persons who claim to have been financially dependent upon the deceased but who are not entitled to S17 SRCA compensation may be advised to seek legal advice with respect to S44. Delegates should also advise persons who themselves initiate the matter, i.e. ask about alternatives to an SRCA claim. Delegates should state clearly that a common law case is possible under law but must refrain from expressing an opinion about the wisdom of such action or any perceived likely outcome. Clients should be advised to seek professional legal advice on such matters.

Delegates should always inform such an inquirer that, were such a legal action against the Commonwealth (or against a third party) to be successful, this would, with but for those exceptions outlined in 9.4.1 end the litigant's SRCA entitlements (if any). Any lump sum already paid would have to be repaid. These consequences are discussed at 9.3 and 9.4. Furthermore, under all circumstances inquirers should always be told to seek professional legal advice with respect to any legal action they may be contemplating.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-8-making-determinations-re-death/84-advice-clients-re-right-sue-commonwealth-lieu-compensation

Ch 9 Legal Action(s) in Respect of the Death

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-9-legal-actions-respect-death

9.1 S44 Inapplicable re: Death Cases (i.e. Legal Action Vs Commonwealth is Possible)

Subsection 44(1) of the SRCA says:

44(1) Subject to Section 45, an action or other proceedings for damages does not lie against the Commonwealth, a Commonwealth authority, a licensed corporation or an employee in respect of:

a)an injury sustained by an employee in the course of his or her employment being an injury in respect of which the Commonwealth, Commonwealth authority or licensed corporation would, but for this subsection, be liable (whether vicariously or otherwise) for damages, or

b)the loss of, or damage to, property used by an employee resulting from such an injury

c)whether that injury, loss or damage occurred before or after the commencement of this section.

Essentially this means that where the SRCA has coverage, an employee may not substitute a legal action against the Commonwealth for a claim under the SRCA.

However, Section 44 makes a single exception, i.e. where the injury results in death:

44(3) If:

  • an employee has suffered an injury in the course of his or her employment, and
  • that injury results in that employee's death

Subsection (1) does not prevent a dependant of that employee bringing an action against the Commonwealth, a Commonwealth authority, a licensed corporation or another employer in respect of the death of the first-mentioned employee.

Thus, dependants of the deceased employee are not prevented from suing the Commonwealth for the death of that employee.

S48 and S119 of the SRCA ensure that the result of such an action for damages must impact on the SRCA entitlement. These sections of the SRCA serve to prevent double-dipping, i.e. a dependant can not both conclude an action for damages AND access full SRCA entitlements. This matter is dealt with in detail at 9.3 to 9.12.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-9-legal-actions-respect-death/91-s44-inapplicable-re-death-cases-ie-legal-action-vs-commonwealth-possible

9.2 Life Insurance Policies

Insurance on the life of the deceased employee is a private financial/commercial arrangement and an amount specified by an insurance policy and paid to a dependant does not have any effect on the compensation entitlement under any of the Commonwealth Acts administered by the Department.

Therefore:

No limitation should be made to compensation entitlements in respect of payments received by a dependant, as prescribed by an insurance policy.

However:

In cases where the insurance company subsequently institutes a legal action in the dependant's name – i.e. to recover damages either from a third party deemed liable for the death (or, indeed from the Commonwealth itself) – Delegates should take an interest in those proceedings. Section 48 requires that the Commonwealth recover:

a)the compensation entitlement OR

b)the amount of damages recovered at law,

whichever is the lesser. Read 9.3 and/or 9.4 below for further information relating to this circumstance.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-9-legal-actions-respect-death/92-life-insurance-policies

9.3 Actions against the Commonwealth - Limitation by S48

While dependants of the deceased employee are permitted by the terms of S44(3) to bring an action for damages against the Commonwealth in respect of the employee's death, S48 acts to ensure there is no double dipping i.e. the dependant can not access both the court-awarded damages and the SRCA lump sum.

Section 48 says:

48(1) This section applies where:

a)...

b)damages are recovered by, or for the benefit of, a dependant of a deceased employee in respect of the death of the employee and compensation is payable under this Act in respect to the injury that resulted in that death.

This means that S48 operates to limit SRCA payments where dependents 'recover damages' for the death, i.e. by means of a legal action.

S48 also provides that:

48(4) Compensation is not payable under this Act to...or for the benefit of, the dependant in respect of the injury that resulted in the death of the employee, after the date on which the damages were recovered...for the benefit of the dependent, as the case may be.

This means that the SRCA entitlements under Sections 17, 16 and 18 are not payable to that dependent who initiated the action, after the date when the damages were paid.

Note that this cessation of entitlement is permanent.

This total cessation of entitlement also operates independently of the amount of money actually recovered i.e. even if the client recovered less money that he/she would have achieved under S17.



Furthermore S48 also provides that:

48(3) If, before the recovery of the damages by, or for the benefit of, the...dependant, any compensation under this Act was paid to...the dependant in respect of the injury that resulted in the death of the employee,...the...dependant is liable to pay Comcare an amount equal to:

a)the amount of that compensation

b)the amount of the damages,

whichever is less.

This means that whatever compensation was paid for the death to that dependant prior to the finalisation of the legal action, must afterwards be repaid. However where the dependant's action recovered less money than had been paid under the SRCA, only an amount equal to the amount recovered by the legal action is recoverable from the dependant.

With regard to that recovery of compensation already paid prior to settlement of damages (i.e. a recovery under S48(3)), S48(6) says:

48(6) A reference in Subsection (3) to compensation under this Act that was paid for the benefit of a dependant does not include a reference to compensation paid under Subsection 17(5).

This means that, where compensation is to be recovered, amounts paid under S17(5) – i.e. weekly payments in respect of a 'prescribed child' – are exempt, i.e. are to be excluded from that recovery. However S48(1) is framed in such a way that there is no further entitlement to S17(5) payments after settlement of the legal action. Thus, the guardian of the child gets to keep the weekly payments already made, but no more payments are to be made after that date.

Amounts paid by the Department under S16 and S18 in respect to a death, should only be recovered from a dependant if those amounts were paid to that dependant. In cases where the dependant, for example, incurred the costs of a funeral but the Department actually paid the undertaker directly (rather than paying the dependant by way of a reimbursement), that amount of compensation is not recoverable.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-9-legal-actions-respect-death/93-actions-against-commonwealth-limitation-s48

9.4 Actions against Third Parties (i.e. 'recovery of damages' and S48)

With the exception of a number of circumstances as outlined in 9.4.1, section 48 operates regardless of whether the dependant's action is conducted against the Commonwealth as permitted by S44(3) or against a third party responsible for the death (e.g. a person involved in a motor vehicle accident in which the employee lost his/her life).

That is, generally the operation of S48 is not altered by who/what was sued by the dependant. See 9.3 above, for the effect of S48.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-9-legal-actions-respect-death/94-actions-against-third-parties-ie-recovery-damages-and-s48

9.4.1 Action aginst Third Parties instituted or taken over by the MRCC

Subsection 50 of the SRCA applies where damages are recovered:

  1. as a result of a claim, or fresh claim, made by Comcare under section 50 (whether or not that claim progressed to the formal institution of proceedings); or
  2. as a result of Comcare's taking over the conduct of a claim under that section.

Thus, if the MRCC makes a claim or a fresh claim against a third party on behalf of a dependant or takes over the conduct of such a claim, double-dipping is prevented by calculating the amount payable under the SRCA to the dependant as follows:

  • the amount of compensation paid or payable is to be deducted from the damages amount.  Any costs incidental to the claim that were paid by the Commonwealth in the prosecution of the claim are also deducted.
  • If a positive balance remains then the balance has to be paid to the plaintiff.

Note that under sub-section 50(2), where the MRCC takes over a claim it is responsible for paying all costs of the claim.  Only the incidental costs are recoverable as indicated above.

Should the damages be less than the person would have received under the Act if there had been no third party action, an amount of compensation is payable under the SRCA so that the dependant receives the total amount to which they are entitled.  The amount payable is calculated as per the calculations set out above.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-9-legal-actions-respect-death/941-action-aginst-third-parties-instituted-or-taken-over-mrcc

9.5 Not all Categories of Damages Recovered, are Subject to Limitation

Subsection 48(7) of the SRCA says:

48(7) Where an employee, or a dependant of an employee, establishes to the satisfaction of Comcare that part of the damages referred to in Subsection (1) did not relate to an injury, loss or damage in respect of which compensation is payable under this Act, Subsection (3) applies in relation to that employee or dependant as if the amount of the damages were an amount equal to so much of the amount of the damages did relate to an injury, loss or damage in respect of which compensation is payable under this Act.

Courts of law, when deciding an action for damages due to death, are not constrained to award damages only under those headings (loss of income, support of children etc.) used by workers compensation legislation. Subsection 48(7) provides that if the damages awarded by the court lists as components of that award, compensation for matters that are not of a type which is provided for in the SRCA these parts of the damages award are not recoverable. As an example, an award of damages might include the cost of replacement of the vehicle in which the employee died, or the legal costs of bringing the action, or the costs of medical/psychological treatment of the dependant (rather than the employee). Those components should therefore be deducted from the total damages awarded prior to calculating how much of that award is recoverable by the Department.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-9-legal-actions-respect-death/95-not-all-categories-damages-recovered-are-subject-limitation

9.6 Recovery of Damages Negates Entitlement to ADB (as well as SRCA)

Clause 10.5.13 of Defence Determination 2000/1 under the Defence Act says:

10.5.13 ADB not payable if damages are recovered

1.This clause applies if:

a)but for this clause, SIA or ADB would be payable to a member or a dependant in respect of an injury suffered by the member, and

b)the member or dependant recovered, or recovers, damages in respect of the injury.

The purpose of the clause is the same as for Section 48 of the SRCA i.e. to ensure a dependant does not draw double benefits for an employee's death.

2.If the member or dependant recovers damages after the commencement of this Determination, the member or dependant, as the case requires, must notify the Secretary in writing, within 28 days after the day the damages are recovered, of the recovery of the damages and the amount of damages.

This requirement to notify the Department of a damages settlement within 28 days of its finalisation, is essentially the same provision as for Subsection 48(2):

  • except that the Defence Determination does not specify a penalty for failure to do so, i.e. as does Ss48(2). Since the ADB is not payable unless the SRCA S17 amount is also payable, the one penalty for non-disclosure does for both.

The Defence Act requirement that the dependant also notify the Department upon initiation of the action (rather than at the conclusion, as above) is contained in Clause 10.5.12. This Clause is analogous to Section 46 of the SRCA. Both the SRCA and the Defence Act require notification within 7 days.

3.If SIA or ADB was paid to the member or dependant before the damages are recovered, the member or dependant, as the case requires, must repay to the Commonwealth an amount equal to the amount (if any) of SIA or ADB that, when added to the amount of SRC compensation (if any) paid to the member or dependant, does not exceed the amount of the damages.

This subclause is directly analogous to the SRCA's Subsection 48(3) in that, amounts of compensation paid prior to the award of damages must be returned following settlement of the legal action.

4.SIA or ADB is not payable to the member or dependant after the day the member or dependant recovered, or recovers, the damages.

This subclause is directly analogous to Subsection 48(4) of the SRCA, i.e. ADB compensation is not payable after the date of the dependant's legal settlement. The loss of entitlement to ADB is absolute and permanent and does not depend on the amount of damages recovered.

5.Subclause (3) does not apply if the damages were recovered in proceedings instituted by the member under Section 45 of the SRCA, or by way of a settlement of the proceedings.

Subclause (3) relates to recovery of ADB paid, following settlement of a legal action.

Section 45 of the SRCA permits an employee to make a formal, irrevocable election to take legal action against the Commonwealth in lieu of accepting amounts under S24 and S27 (i.e. a permanent impairment lump sum). Subsection 44(1) does not prevent this limited action, which may be made on the basis of non-economic loss only, and is limited to a maximum of $110,000.

Subclause 10.5.13(5) of the Defence Determination is the counterpart of Subsection 48(4A) of the SRCA. The practical effect of both of them considered together, is that S45 actions have no effect on entitlements to compensation for death.

Thus, a S45 action (whether concluded before or only after the death), does not trigger a Subclause (3) recovery of whatever ADB compensation has already been paid to the dependant.

6.Subclause (4) does not apply if the damages were recovered:

a)as a result of proceedings begun by the member after making an election under Section 45 of the Act, or

b)as a result of proceedings begun or taken over by the Commonwealth against a person (other than the Commonwealth, a Commonwealth authority or an employee of the Commonwealth), or

c)in a settlement of those proceedings.

The effect of Subclause (6) is to negate the usual effect of Subclause (4) in certain circumstances. Subclause (4) removes the right to receive ADB once damages are received (from an action over the employee's death).

Therefore, ADB remains payable following:

a)A legal action under S45 of the SRCA i.e. in lieu of a lump sum payment:

–The nature of S45 actions and the special provisions made for them have been discussed in relation to Subclause (5) above.

b)Conclusion of a legal action originally open to the dependant but which has instead been taken over and concluded by DVA or the Department of Defence, i.e. in accordance with the powers granted at Section 50 of the SRCA.

–The operation of S50 is discussed elsewhere i.e. at 9.12 of this Handbook.

–Legal actions under S50, although formally in the dependant's name, are in fact an initiative of the Department.

7.If a member or a dependant satisfies the Secretary that a part of the damages recovered by the member or dependant was not in respect to death, permanent impairment or non-economic loss as a result of the injury, this clause has effect in relation to that member or dependant, as the case requires, as if the amount of the damages recovered by the member or dependant were an amount equal to so much (if any) of the damages as was in respect of death, permanent impairment or non-economic loss as a result of the injury.

Courts of law, when deciding an action for damages due to death, are not confined to award damages only under those headings (loss of income, support of children etc.) used by workers compensation legislation. Subclause (7) provides that if the damages awarded by the court lists as components of that award, compensation for matters that are not of a type which is provided for in the ADB or SRCA these parts of the damages award are not recoverable. As an example, an award of damages might include the cost of replacement of the vehicle in which the employee died, or the legal costs of bringing the action. Those components should therefore be deducted from the total damages awarded prior to calculating how much of that award is recoverable.

8.In this clause:

Damages does not include an amount of damages paid to the Commonwealth under Section 76 of the Veteran's Entitlements Act 1986.

Section 76 allows DVA to institute an action against a person who may have a legal liability to pay damages in respect to an injury suffered by a Veteran (i.e. a person entitled under the Veterans Entitlements Act [VEA]). The damages to be recovered by the VEA delegate are limited to the amount of pension paid to that Veteran up to the date of the award. The decision to institute that action is a decision of the Department, not of the Veteran.

The effect of Subclause (8) is therefore similar to that of Subclause (6)(b), i.e. it acts to prevent persons from being debarred from compensation for death or injury on the basis of actions initiated or taken over by the Commonwealth, (even though the Commonwealth is acting in the client's name.)

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-9-legal-actions-respect-death/96-recovery-damages-negates-entitlement-adb-well-srca

9.7 Where Damages Recovered via State Laws ('specified law' and S119)

Certain Australian State governments have passed laws that provide compensation to the victims of road accidents or for losses due to criminal activity etc. These Acts do not refer to 'workers' per se and are not Workers Compensation Acts (workers compensation acts are dealt with by section 118 - see 9.9. They relate to injuries and loss of ordinary citizens. The provision of compensation under those Acts is as the result of administrative decisions enabled by those Acts and not by a legal 'action' of the dependent through the law courts, i.e. such as would be caught by S48.

However S119 of the SRCA deals with such compensation, i.e. S119(2) provides that:

119(2) Subject to this section, the compensation that is payable under this Act...for the benefit of the dependant in respect of the injury that resulted in the death,...is so much (if any) of the compensation under this Act that, but for this section, would be so payable as exceeds the amount of State compensation recovered...by, or for the benefit of the...dependant,...

This means that the amount of the State compensation entitlement must be deducted from the SRCA compensation entitlement and only the balance paid to the dependant. Naturally, where the State entitlement exceeds the SRCA entitlement nothing is payable under the SRCA.

Furthermore, S119(3) provides for cases where SRCA compensation had already been paid i.e. prior to receipt of money from a State Act:

119(3) Subject to this section, if, before the recovery of State compensation by or for the benefit of the...dependant, compensation under this Act was paid...for the benefit of the dependant in respect of the injury that resulted in the death,...the...dependant is liable to pay the relevant authority:

a)the amount of the compensation paid by it under this Act, or

b)the amount of the State compensation recovered...for the benefit of the dependant,

whichever is less.

Essentially this is the same as for S48, i.e. when the SRCA death benefit has been paid prior to the State death benefit (under the State 'specified law') MCRS must recover either:

  • the whole SRCA death benefit where the amount of the State benefit exceeded it,

    or, alternatively
  • an amount equal to the State benefit, i.e. where the SRCA benefit was the larger.

Note however that S119(5) says:

119(5) A reference in Subsection (3) to compensation under this Act that was paid for the benefit of a dependant does not include a reference to compensation under Subsection 17(5).

This means that, where compensation is to be recovered, amounts paid under S17(5) – i.e. weekly payments in respect of a 'prescribed child' are exempt, and are to be excluded from that recovery. Also S119(5) is framed in such a way that the S17(5) payments may continue while the child continues to be a 'prescribed child' i.e. regardless of payment under the 'specified Act'.

Section 119 refers to 'State compensation' which means compensation payable to the dependant under a 'specified law' of a State or Territory of the Commonwealth of Australia. The laws 'specified' by S119 are those declared in a Ministerial Notice last updated in 1989. This list (List A) applied from 1 December 1988 to 30 June 2007.  A revised list (List B) has applied since 1 July 2007(Note that they are not State Workers Compensation Acts.) Delegates should apply S119 to amounts received by the dependant through the action of the following 'specified Acts'

List A

New South Wales

Compensation to Relatives Act of 1897

Crimes Act 1990

Damage to Aircraft Act 1952

Civil Aviation (Carrier's Liability) Act 1978

Sporting Injuries Insurance Act 1978

Victims Compensation Act 1987

Transport Compensation Act 1987

Victoria

Civil Aviation (Carrier's Liability) Act 1961

Criminal Injuries Compensation Act 1972

Motor Accidents Act 1973

Transport Accident Act 1986

Queensland

The Criminal Code Act 1899

Western Australia

Criminal Code Compilation Act 1913

Fatal Accidents Act 1959

Civil Aviation (Carrier's Liability) Act 1961

Damage by Aircraft Act 1964

Criminal Injuries Compensation Act 1982

South Australia

Civil Aviation (Carrier's Liability) Act 1962

Criminal Injuries Compensation Act 1977–78

Tasmania

Criminal Code Act 1924

Fatal Accidents Act 1934

Civil Aviation (Carrier's Liability) Act 1963

Damage by Aircraft Act 1963

Motor Accidents (Liabilities and Compensation) Act 1973

Criminal Injuries Compensation Act 1976

A.C.T.

Crimes Act 1900 of the State of NSW in its application to the ACT

Criminal Injuries Compensation Ordinance 1983

Northern Territory

Compensation (Fatal Injuries) Act

Motor Accidents (Compensation) Act

Crimes Compensation Act 1982

List B

New South Wales

Compensation to Relatives Act of 1897

Crimes Act 1990

Damage by Aircraft Act 1952

Civil Aviation (Carrier's Liability) Act 1967

Motor Accidents Act 1988

Motor Accidents Compensation Act 1999

Sporting Injuries Insurance Act 1978

Victims Support and Rehabilitation  Act 1996

Victoria

Civil Aviation (Carrier's Liability) Act 1961

Motor Accidents Act 1973

Transport Accident Act 1986

Victims of Crime Assistance Act 1996

Queensland

Criminal Code Act 1899

Criminal Offence Victims Act 1995

Western Australia

Criminal Code Compilation Act 1913

Fatal Accidents Act 1959

Civil Aviation (Carrier's Liability) Act 1961

Damage by Aircraft Act 1964

Criminal Injuries Compensation Act 2003

South Australia

Civil Aviation (Carrier's Liability) Act 1962

Victim of Crimes Act 2001

Tasmania

Criminal Code Act 1924

Fatal Accidents Act 1934

Civil Aviation (Carrier's Liability) Act 1963

Damage by Aircraft Act 1963

Motor Accidents (Liabilities and Compensation) Act 1973

Criminal Injuries Compensation Act 1976

A.C.T.

Crimes Act 1900

Victims of Crime (Financial Assistance) Act 1983

Northern Territory

Compensation (Fatal Injuries) Act

Motor Accidents (Compensation) Act

Victims of Crime Assistance Act

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-9-legal-actions-respect-death/97-where-damages-recovered-state-laws-specified-law-and-s119

9.8 Where Damages Recovered under Specified State laws - Effect on ADB

In brief. Where a dependant receives a payment under one of the State 'specified laws' listed at 9.7, clause 10.5.15 of the Defence Determination 2000/1 performs for the ADB, essentially the same function that S119 does for the SRCA.

  • The total amount of compensation payable can be expressed as:

(SRCA compo + ADB) LESS (amount awarded by specified State law).

  • Where ADB has been paid before the State compensation, the dependant repays:

([SRCA S17 lump sum LESS S17(5) child payments made] + ADB)

OR

(amount awarded under specified State law)

i.e. whichever is less.

  • Components of the (amount awarded under the State law) which do not have counterparts in the SRCA or ADB should not be taken into account when calculating entitlements or recoveries.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-9-legal-actions-respect-death/98-where-damages-recovered-under-specified-state-laws-effect-adb

9.9 Damages Recovered under State Workers Compensation - S118

The SRCA contains separate provisions with respect to the effect of awards from certain State 'specified laws' and awards under State worker's compensation legislation.

  • Section 119 of the SRCA (which is discussed at 9.7 above), prevents a dependent of a deceased Commonwealth employee from receiving double benefits via a group of specified State Acts that provides compensation to citizens who suffer death injury or loss from a variety of circumstances. Those specified Acts apply to ordinary Australian citizens, not just government employees. Those specified Acts are not Workers Compensation Acts. Those specified Acts may apply to ADF members who are killed or injured in a manner that brings them under the provisions of that specified Act.
  • Each State government provides Workers Compensation legislation which applies to workers within those commercial enterprises operating in that State. These are Acts which are analogous in purpose to the SRCA. Previously, it has been asserted that a Commonwealth employee, (who is, naturally, covered by the SRCA for work-related injury or death) also has coverage under the relevant State Workers Compensation legislation i.e. in the State in which he/she was injured.

Note: This section of the Handbook deals only with the effect of awards from State workers compensation jurisdictions, as identified by S118 of the SRCA. Those Acts 'specified' by S119 therefore play no part in the following discussion:

  • Section 118 of the SRCA acts to prevent a Commonwealth employee (or a dependant of a deceased employee) deriving 'double benefits' by accessing both State and Commonwealth Workers Compensation Acts for the same injury, including an injury resulting in death.
  • Note that S118 also applies to amounts payable under the Acts of a foreign country, i.e. it would apply in cases where an ADF member was on duty overseas 'on loan' to an allied defence force.
  • S118 operates in a similar fashion to S48 and S119, i.e.:
  • S118(1) prevents payment of death benefit in respect to an employee where the dependant has already accessed benefits from a State Workers Compensation Act in relation to that death.
  • S118(2) provides for recovery of the whole amount of SRCA compensation paid to a person if and when that person subsequently accesses benefits from a State Workers Compensation Act. There is no discretion to recover a lesser amount if the dependant achieves a lesser amount from the State Act than was paid under the SRCA.

SPECIAL NOTE – JUDICIAL DECISION – S118 NUGATORY

The above paragraphs detail the manner in which S118 was intended to operate. The SRCA contemplates the possibility that a dependant may make a claim under both the Commonwealth compensation jurisdiction, and also under a State workers compensation Act. The purpose of the Section is to ensure that a dependant does not achieve double compensation by applying for payment in two separate jurisdictions.

However, the very notion of a 'dual entitlement' under both Commonwealth and State Workers Compensation has now been subjected to legal scrutiny. The previous assumption – i.e. that State Workers Compensation may apply to a Commonwealth worker employed by the Commonwealth in that State – has, since 1999, been significantly weakened, and perhaps completely nullified.

The test case

In Worthing v Telstra Corporation Limited (1997), the NSW Compensation Court held that the SRCA does not provide an exclusive scheme for compensation for Commonwealth employees and that therefore the NSW Compensation Court has jurisdiction to determine claims in circumstances where a Commonwealth employee is injured at work in NSW.

The High Court ruling

However in Telstra Corporation Limited v Worthing (1999), the decision of the Court of Appeal was reversed by a unanimous decision of the High Court which held that the SRCA covers the field and that the NSW Worker's Compensation Act has no applicability to Commonwealth employees.

  • Delegates curious as to the High Court's reasoning should refer to the extended commentary at S118 in the 'Annotated SRCA' (Ballard/Sutherland).

The High Court decision is applicable to the SRCA's relationship to State workers' compensation jurisdictions in every State or Territory not just NSW. Taken on its face, this means that no Commonwealth worker – and therefore no ADF member – has access to a State Workers Compensation Act.

In cases where clients inquire whether they may have a claim under State workers compensation in lieu of the SRCA, those clients should be referred to the decision in Telstra Corporation Ltd v Worthing. They should also be advised to seek professional legal advice as to the applicability of that case to their own circumstances.

If a delegate becomes aware that a dependent of a deceased ADF employee appears, (contrary to the Worthing decision), to have achieved a State Worker's Compensation payment in respect of that death, that Delegate should:

1.not only invoke S118, but

2.also refer the matter to Policy for consideration.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-9-legal-actions-respect-death/99-damages-recovered-under-state-workers-compensation-s118

9.10 Notice of any Legal Action to be Given to the Department - Penalties

Section 46 of the SRCA says:

46(1)Where:

a)              compensation is payable under this Act in respect of the death of an employee, and injury to an employee or the loss of, or damage to, property used by an employee

b)              the death, injury, loss or damage occurred in circumstances that appear to create a legal liability in a person (other than the Commonwealth, a Commonwealth authority, a licensed corporation or another employee) to pay damages in respect of the death, injury, loss or damage, and

c)              the employee or a dependant of the deceased employee, as the case may be, makes a claim against the person for the recovery of such damages

the employee or dependant must, as soon as practicable but in any event not later than 7 days after the day on which he or she first became aware of the claim, notify Comcare of the claim.

Penalty: 5 penalty points

(2)Subsection (1) is an offence of strict liability.

In short, this means that a dependant must advise the Department that he/she has initiated a third party action in respect of the death, within 7 days of doing so, and a formal penalty applies for failure to do so.

Furthermore, Subsection 48(2) says that:

48(2)The employee or dependant shall, not later than 28 days after the day on which the damages were recovered, notify Comcare in writing of the recovery of the damages and the amount of the damages.

Penalty: 10 penalty points

48(2A) Subsection (2) is an offence of strict liability.

In short this means that a dependant who has settled or concluded a third party action in respect of the employees death, is obliged to notify the Department of the amount recovered within 28 days of that settlement. A formal penalty applies for failure to do so.

Delegates who become aware that a dependant has failed to meet obligations under S46 or 48(2) must notify the Department in writing or by e-mail, with a summary of the circumstances. DVA will then consult with Defence about the legal steps to be taken, i.e. for a court of relevant jurisdiction to exact the penalty.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-9-legal-actions-respect-death/910-notice-any-legal-action-be-given-department-penalties

9.11 Dependant(s) Refuse(s) S17 Payments and Sues Commonwealth or Third Party.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-9-legal-actions-respect-death/911-dependants-refuses-s17-payments-and-sues-commonwealth-or-third-party

9.11.1 Background and purpose

This Part of the Handbook deals with the provisions of Section 49 of the SRCA.

The SRCA acts to recover money from the amount of damages awarded by a court to a dependant, when that dependent – or a group of dependents – is also entitled to compensation under S17.

  • Section 48 recovers money in cases where the client(s) actually received the Section 17 entitlement prior to the court's award of damages. In any case, (i.e. whether the money was paid prior to the award of damages or not) S48 also annuls further entitlement from the date of the court's award. See 9.3 re: the action of S48.
  • Section 49 also recovers money from common-law damages, but in cases where the client(s) have either failed to claim the clear entitlement (which is also covered under S48), or alternatively where that entitlement has been formally refused via Section 43.

Section 49 is therefore complementary to S48 in that it prevents dependants who are entitled to S17 SRCA compensation from foregoing that compensation to maximise the amount retained from a legal action. If Section 49 did not exist, dependants could then:

a)fail to claim SRCA compensation or

b)positively decline SRCA compensation by means of S43*,

to prevent this entitlement from being deducted via Ss48(3) from a 'damages' award

* Note that Subsection 43(1)(c) of the SRCA allows dependants of employees who were also 'veterans' – i.e. for the purposes of the VEA – to formally decline SRCA compensation for the death of that employee. The clear intent of S43 is to allow dependants with 'dual entitlement' under the VEA and the SRCA to choose between a VEA  pension and a SRCA lump sum.

Section 49's intended result is achieved as follows:

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-9-legal-actions-respect-death/911-dependants-refuses-s17-payments-and-sues-commonwealth-or-third-party/9111-background-and-purpose

9.11.2 When and to whom S49 applies

Subsection 49(1) says, firstly:

49(1) Where:

a)compensation is payable under this Act in respect of an injury that resulted in the death of an employee, and

b)damages in respect of the death of the employee are recovered by or for the benefit of a prescribed dependant of the deceased employee

c)this section applies in respect to that prescribed dependant.

In other words, the Section only operates where compensation is payable under S17 to a person but that person, who is a 'prescribed dependant', has  instituted a legal action to recover damages for the same death but has eithere not claimed the section 17 payment or has declined the compensation.

Note that 'prescribed dependant' is a term defined by Ss49(4) as follows:

'prescribed dependant', in relation to a deceased employee, means a dependant of that employee by whom, or on whose behalf, a claim for compensation under this Act in respect of the injury that resulted in the death of the employee has not been made or by whom, or on whose behalf, a request under Section 43 relating to compensation under this Act in respect to that injury has been made.

Thus, a 'prescribed dependant' is one who would otherwise be entitled to compensation but who has either:

  • not made a claim for the death under the SRCA or
  • who has formally invoked Section 43 in order to decline SRCA compensation for the employee's death.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-9-legal-actions-respect-death/911-dependants-refuses-s17-payments-and-sues-commonwealth-or-third-party/9112-when-and-whom-s49-applies

9.11.3 Where there is only one 'prescribed dependant'

Subsection 49(2) then provides as follows:

49(2) If the prescribed dependant is the only prescribed dependant, he or she is liable to pay to Comcare:

a)the amount of the compensation referred to in paragraph (1)(a), or

b)the amount of the damages recovered by the prescribed dependant,

whichever is the less.

Essentially, this imposes the same scheme of limitation of 'damages' as does Ss48(3).

Thus, the amount of SRCA compensation which the 'prescribed dependent' would have received (i.e. had he/she applied for it or not cancelled it via S43) is still taken into account even though this compensation entitlement was not actually received.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-9-legal-actions-respect-death/911-dependants-refuses-s17-payments-and-sues-commonwealth-or-third-party/9113-where-there-only-one-prescribed-dependant

9.11.4 Where there is more than one 'prescribed dependant'

Section 49 also provides a different scheme of limitation to deal with the situation where there is more than one 'prescribed dependant', i.e. where more than one of the deceased employee's dependants has chosen to forego an SRCA entitlement, and pursue a legal action for damages.

In these circumstances, it is Subsection 49(3) that determines how much is to be recovered from each of the 'prescribed dependants' and it does this by reference to a 'prescribed amount'. Subsection 49(4) defines 'prescribed amount' as follows:

Prescribed amount means an amount calculated under the formula:

AC x D1/D2

Where:

  • AC is the amount of the compensation referred to in paragraph (1)(a)
  • D1 is the amount of the damages recovered by the prescribed dependant in respect of the death of the employee, and
  • D2 is the total amount of the damages recovered by all prescribed dependants in respect of the death of the employee.

Thus a 'prescribed amount' is a proportion of the total SRCA compensation payable in respect of the death, based on the proportion of the prescribed person's share of the whole amount of damages awarded by the relevant court(s).

Subsection 49(3) then provides that:

49(3) If the prescribed dependant is not the only prescribed dependant, he or she is liable to pay to Comcare:

a)the prescribed amount, or

b)the amount of the damages recovered by the prescribed dependant,

whichever is less.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-9-legal-actions-respect-death/911-dependants-refuses-s17-payments-and-sues-commonwealth-or-third-party/9114-where-there-more-one-prescribed-dependant

9.12 Commonwealth may take over Proceedings Against Third Parties (S50)

Section 50 of the SRCA applies to claims for an employee's death in cases when a third party may have legal liability to pay damages for that death AND

50(1)(c)...a claim against the person for the purpose of recovering such damages has not been made by...the dependant, or , having been made, has not been prosecuted:

The MRCC may make a claim or fresh claim against the person in the name of the employee or dependant for the recovery of damages in respect of the injury, loss, damage or death or may take over the conduct of the existing claim, as the case requires.

In other words, the Commonwealth may either initiate or take over an existing legal action in a dependant's name, and prosecute that action against a third party with the object of recovering damages to offset the compensation payable. Subsection 50(4) provides that the Department may insist that the dependant cooperate in various ways i.e. by requiring that various documents be signed by that dependant etc. Subsection 50(3) requires that if MRCC does indeed choose to pursue such an action, it becomes liable for all associated costs and must bring the claim to a conclusion.

Where the MRCC engages in such litigation, Subsection 50(7) is relevant:

50(7) Any damages obtained as a result of a claim made or taken over by MRCC under this section (including damages payable as a result of the settlement of such a claim) must be paid to MRCC and MRCC must deduct from the amount of those damages:

a)an amount equal to the total of all amounts of compensation paid to the employee or dependant under this Act in respect of the injury, loss, damage or death to which the claim relates, and

b)the amount of any costs incidental to the claim paid by MRCC.

MRCC must pay the balance (if any) to the employee or dependant.

This amounts to the same scheme of limitation of damages which would have applied had the dependant prosecuted the case his/her self, (i.e. in effect the lesser of the damages or the compensation is repayable to the Commonwealth):

  • except that the costs of conducting the action are also incorporated in the amount repayable to the Commonwealth.

The conduct of any action under S50 requires MRCC to engage legal advice and legal expertise to identify prosecute and manage those cases. Delegates dealing with death claims involving a third party in the circumstances of that death, should refer the determined compensation claim for consideration of possible S50 action.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-9-legal-actions-respect-death/912-commonwealth-may-take-over-proceedings-against-third-parties-s50

9.13 Effect of legal actions ('recovery of damages') under 1971 Act

Section 99 of the 1971 Act is the counterpart of Section 48 of the SRCA. That is, it acts to limit the compensation payable in situations where the dependant also recovers damages by means of a common law action against the Commonwealth (or a third party). However the action of S99 of the 1971 Act differs in a number of respects from provisions of the current Act.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-9-legal-actions-respect-death/913-effect-legal-actions-recovery-damages-under-1971-act

9.13.1 Where the court awards 100% of claimed losses to a dependant

Subsection 99(2) of the 1971 Act says:

99(2) Subject to this section, the compensation that is payable under this Act to the employee in respect of...the injury that resulted in the death...is so much (if any) of the compensation as exceeds the amount of damages recovered...for the benefit of the dependant,...

This means that the court's award of damages is to be deducted from the compensation entitlement and only the remainder (if any) of that compensation entitlement is payable. If the compensation entitlement is less than the damages, nothing is payable.

If the full compensation entitlement had already been paid, i.e. before an amount of 'damages' was awarded by the relevant court, Subsection 99(3) provides that:

...the ...dependant is liable to pay to the Commonwealth the amount of the compensation so paid to him for his benefit or, of the amount of damages recovered by him or for his benefit is less than the amount of that compensation, the amount of those damages.

In other words, either the amount of compensation or the amount of damages (whichever is the lesser) is repayable to the Commonwealth.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-9-legal-actions-respect-death/913-effect-legal-actions-recovery-damages-under-1971-act/9131-where-court-awards-100-claimed-losses-dependant

9.13.2 Where the court reduces damages due to the employee's negligence

Where a court reduces the amount of damages payable to the dependant due to the deceased employee's contributory negligence, Subsections 99(2) and 99(3) – i.e. the above provisions – do not apply. Subsections 99(4) and (5) have effect in their place. Subsection 99(5) says, in part:

...compensation under this Act that, but for this section, would be payable ... for the benefit of the dependant in respect of ...the death...shall be reduced by so much of that amount as bears to that amount the same proportion as the amount of the damages recovered by or for the benefit of ...the dependant bears to the amount of the damages that would have been recovered by or for the benefit of the employee or dependant if the employee had not been partly responsible for the injury, loss or damage.

This means that where a court reduced the amount of damages due to the deceased employee's negligence contributing to his/her death, compensation still remains payable but is to be reduced by an amount proportionate to the amount by which the award of damages was reduced.

The rationale for this provision is that the court and the 1971 Act use different standards of assessment. The court can and does determine damages on the basis of relative degrees of the employee's and employer's 'fault', i.e. it considers the deceased employee's contributory negligence in making an award. However the 1971 Act is a 'no-fault' Act and does not consider contributory negligence in setting the amount payable. On that basis S99(5) reflects the dependant's retention of an entitlement to compensation proportionate to that part of the loss for which the court did not pay damages. This is the same as the degree to which the deceased employee was found to be negligent.

  • Thus, if the court set the loss at a certain figure, then decided to pay only (say) 88% of that loss on the basis that the employee contributed to that loss by 12%, the Commonwealth thereby retains the liability to pay 12% of the compensation which would otherwise apply. In other words, the dependent is entitled to that portion of the compensation which corresponds to that part of the loss on which damages were not awarded by the court.

Subsection 99(7) of the 1971 Act provides that where compensation was paid prior to the award of damages and those damages were reduced due to negligence – i.e. the situation described above – the entitlement to compensation is to be recalculated in accordance with Subsection 99(5). Subsequently, the compensation already paid in excess of the 99(5) amount must be recovered from the dependant.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-9-legal-actions-respect-death/913-effect-legal-actions-recovery-damages-under-1971-act/9132-where-court-reduces-damages-due-employees-negligence

9.13.3 Other provisions of Section 99

Subsection 99(8) facilitates the recovery process by allowing other compensation payable at or after the death but which had not yet been paid, to be retained by the Commonwealth and offset against the overpayment.

  • naturally, this offset should not be applied to those payments due directly to providers of funeral or medical services.

Subsection 99(9) provides that compensation already paid under Subsections 43(5) or 43(7) – i.e. weekly payments to prescribed children – is not recoverable.

Subsection 99(10) requires that amounts paid to the Commonwealth under S76 of the Veterans' Entitlements Act not be treated as 'damages' for the purposes of S99.

Note: S76 of the VEA allows Dept of Veterans' Affairs to undertake legal action against persons deemed liable for a Veteran's injuries/death

Subsection 99(11) requires the delegate to disregard any component of the damages awarded in a legal action, which does not relate to a loss of a type also covered by Compensation. This is almost identical in effect to Subsection 99(7) of the SRCA. See 9.5 for a further discussion of this SRCA provision because that Part should be used as a guide to application of Ss99(11) of the 1971 Act also.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-9-legal-actions-respect-death/913-effect-legal-actions-recovery-damages-under-1971-act/9133-other-provisions-section-99

9.13.4 S100 of 1971 Act - Re: Dependants not claiming compensation.

Section 100 of the 1971 Act deals with 'dependants not claiming compensation' and in fact is the direct counterpart of Section 49 of the SRCA which bears the same title.

Section 100 deals with the limitation of damages recovered through a legal action, by persons who have refrained from claiming compensation or who have formally declined compensation under S98A of the 1971 Act. It does so in terms almost identical to those of S49 of the SRCA and delegates should read 9.1 of this Handbook. The explanation of this limitation function applies equally to both Acts.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-9-legal-actions-respect-death/913-effect-legal-actions-recovery-damages-under-1971-act/9134-s100-1971-act-re-dependants-not-claiming-compensation

9.14 Effect of Legal Actions ('recovery of damages') under 1930 Act

In general, the provisions of the 1930 Act in relation to recovery of damages are much simpler than under either the 1971 Act or the SRCA.

In practice Delegates need only concern themselves with the effects and recoveries from past legal actions, as all attempts at a new legal action in respect to 1930 Act deaths would be well out of the time allowed by law, by some decades...with one exception. The group-action brought by the survivors of the 1964 collision between HMAS Melbourne and HMAS Voyager represents a special case. It is not likely to be repeated. If any such cases arise it should be referred to National Office.

8/06/10Page 1

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-9-legal-actions-respect-death/914-effect-legal-actions-recovery-damages-under-1930-act

General Handbook

Version 1.7

10 December 2013

In this Handbook

The MRCC General Handbook contains the following chapters:

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/general-handbook

25.2 Procedure

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/general-handbook/ch-25-privacy/252-procedure

25.1.1 Broad principles

Covert optical surveillance is an activity that intrudes into the privacy of individuals in an extreme way. An individual should be placed under covert surveillance only after careful consideration of whether there are sufficient public reasons to justify that course of action. (Source: Privacy Commissioner, February 1992)

Within the Military Rehabilitation and Compensation Commission (MRCC), covert optical surveillance is to be used prudently and only within the parameters outlined below and in accordance with the broad principles of natural justice.

Natural justice means in this context that decisions taken in relation to the use of covert optical surveillance are only taken fairly, in good faith, without bias and having due regard to the views of the individuals observed. Where possible and appropriate in the circumstances, those individuals will be given an opportunity to state their case prior to any decision being taken that could adversely affect them.

Where there is any doubt as to how to apply natural justice in the above situation, local MRCC Managers or staff in the Policy and Procedures Section of MRCC National Office, Canberra should be consulted.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/general-handbook/ch-25-privacy/251-surveillance-guidelines/2511-broad-principles

25.2.4 The collection process

Covert surveillance should only be undertaken by trained investigators/surveillance officers. Instructions to surveillance operatives on services and actions must include the points listed below. Points a) to (d) below are of a general nature, whilst (e) and (f) are case specific. The instructions should cover:

a)avoidance of any actions which may unreasonably impinge on the privacy and rights of other people, e.g. when using photography avoid, where practicable, including other individuals such as relatives and friends, who may be in contact with the surveillance subject during the surveillance period, in the photograph.

b)where practicable, only material relevant to the purpose of conducting the covert surveillance should be collected. There should be a clear separation of facts from opinions and only relevant personal information should be included in records resulting from the surveillance.

c)instructions on the manner of collection of personal information:

  • the collection should not involve the commission of a criminal offence or give rise to a civil action, e.g. trespass on land or damage to property or goods.
  • the collection should not involve entrapment of the surveillance subject.
  • hence, passive observation is permissible, however, any attempts to actively induce the subject into a situation in which that person would not ordinarily and voluntarily enter, thereby creating a false or misleading impression of the person's abilities, is not permitted.

d)instructions by MRCC on the obligations of investigators to safeguard the material collected. The MRCC Office should ensure appropriate provisions, protecting privacy, are included in contracts engaging private contractors.

e)the method by which information is to be collected (e.g. logs with observations recorded, photography or video recordings). This should be appropriate to the purpose of collection in the particular case.

f)the period and scope of the surveillance procedure as specified above.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/general-handbook/ch-25-privacy/252-procedure/2524-collection-process

25.2.5 Use and disclosure

Material collected by covert surveillance is to be used in accordance with the following conditions:

a)the material is to be used only for the purpose for which the approval is given, or where exceptions under IPP 10 of the Privacy Act apply.

b)each MRCC Office must ensure that information is accurate, up to date and complete prior to the information being used. Material collected by covert surveillance must not be used in isolation but corroborated by other information to ensure accuracy.

Tests for accuracy may include:

a)identity check, i.e. name and address of surveillance subject.

b)checking timing of the surveillance procedure.

c)verifying that material collected is consistent with the nature and details of the claim e.g. musculo-skeletal injuries.

d)checking that there is not another reasonable explanation for the particular information collected such as:

  • injured worker able to lift box because he/she was wearing a splint
  • box lifted by injured worker was empty
  • activity performed by worker did not involve using injured muscles.

Material collected by covert surveillance is not to be disclosed to another person, body or agency, other than in accordance with IPP 11 of the Privacy Act (Reproduced at Attachment A). Any request for release of surveillance material either made under a Section 59 request under the SRC Act 1988 or the Freedom of Information Act, must be reported to the Director of the Policy and Procedures Section at MRCC National Office who will also make decisions regarding disclosure of material in consultation with the local MRCC Manager and our legal advisers.

When material is disclosed there must be a record of:

a)the reason(s) for disclosure

b)the recipient of the information of documents

c)the officer authorising disclosure, and

d)exactly what information or documents were disclosed.

Where material is disclosed to another person, body or agency, safeguards should be in place to ensure that the information is only disclosed by the receiving agency or person in accordance with IPP 11 of the Privacy Act.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/general-handbook/ch-25-privacy/252-procedure/2525-use-and-disclosure

25.2.6 Storage and security

The MRCC Office should put in place appropriate measures to protect the material against loss, unauthorised access, use, modification or disclosure by:

a)ensuring the classification is clearly marked on the material

b)restricting access to relevant personnel on a 'need to know' basis

c)marking all envelopes used to transmit this material with 'TO BE OPENED BY ADDRESSEE ONLY'

d)storing the material in an approved security container

e)storing material separately from other files

f)maintaining a log of all personnel accessing, using or removing the material, in order to establish an audit trail.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/general-handbook/ch-25-privacy/252-procedure/2526-storage-and-security

25.3 Suspected Fraud or Imposition on the Commonwealth

If, as a consequence of surveillance, a reasonable suspicion exists that a claimant may be defrauding the Commonwealth, e.g. surveillance evidence indicates a claimant is working in what seems to be a paid job and MRCC is making incapacity payments on the basis of an inability to work, and Compensation Review Forms state no income from employment, the MRCC Manager must forward details to the Director of the Policy and Procedures Section of MRCC National Office, Canberra.

No action should be taken in the management of the case that would make the claimant aware that he/she was under investigation.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/general-handbook/ch-25-privacy/253-suspected-fraud-or-imposition-commonwealth

36.6.5 Treatment of income support payments

Full rate income support payments

Receipt of the following full-rate income support payments would generally exclude a prescribed person or prescribed child from being regarded as wholly or mainly dependent on the client:

  • a social security pension (e.g. age pension, disability support pension, parenting payment (single), carer payment)
  • service pension
  • a social security income support payment paid at adult rates (e.g. JobSeeker payment, austudy payment, special benefit, mature age allowance)
  • a Disability Compensation Payment from the Department of Veterans' Affairs at or above the General Rate (i.e. including extreme disablement adjustment, intermediate rate and special TPI rate)
  • AUSTUDY (independent rate)
  • ABSTUDY (independent rate)
  • Youth allowance (independent rate, special rate, or rate with dependent child).

 

On the facts of the individual case, the person may in some cases continue to be partly dependent on the client for the purpose of death benefits under S17.

Youth or part rate payments

Receipt of the following payments would generally prevent a prescribed person or prescribed child from being regarded as wholly or mainly dependent on the client:

  • youth allowance (away from home rate)
  • special benefit (equivalent youth rate)
  • youth training allowance (before 30/6/98)
  • newstart allowance (under 21 rate) (before 30/6/98)
  • tertiary AUSTUDY (standard or away-from-home rate) (before 30/6/98).

 

In such cases, however, the person would generally be partly dependent on the client for the purposes of death benefits under S17.

Social security and other payments not affecting dependency

Receipt of the following payments alone generally would not prevent a prescribed person or prescribed child from being treated as wholly or mainly dependent on the client:

  • parenting payment (partnered)
  • maternity allowance
  • maternity immunisation allowance
  • family tax benefit Part B
  • family tax payment (before 1/7/00)
  • mobility allowance
  • Disability Compensation Payment from the Department of Veterans' Affairs at below General Rate
  • youth allowance (at home rate)
  • secondary AUSTUDY (standard rate)
  • ABSTUDY (under 18, at home rate)
  • crisis payment
  • child care benefit.

 

Note that family tax payment (Part A rate), carer allowance and double orphan pension are to be disregarded (S4(7)).

References
Minimum Payment and Statutory Rates – S19(6)-(14): Chapter 36
  • Concise Oxford Dictionary
  • LIPS vol 1, 6.7.1 : 'place of education'
  • ATO Ruling ST(NS) 3003 : 'School'
  • A New Tax System (Family Assistance) Act 1999
  • Acts Interpretation Act 1901
  • Calculating periods of time
  • References to de facto partners
  • Registered relationships
  • De facto relationships
  • Marriage Act 1961 : Legal marriages
  • Social Security Act 1991
  • Social Security Act 1991, S1067L-E2 : Austudy Income Bank amount
  • Student Assistance Act 1973
  • Veterans' Entitlements Act 1986
  • Harradine v SDSS (1989) (FFC) 10 AAR 412; 17 ALD 336 : 'full-time education'
  • Lynam v Director-General of Social Security (1983) 1 AAR 197; 6 ALN N28 : De facto spouse
  • Re Tang and Director-General of Social Services (1981) 3 ALN N83 : Defacto spouse
  • Re Vang and SDEET (AAT 8583, 24/2/93) : Age unknown
  • COA 99/004 : Indexation benefits from 1 July 1999
  • Comcare JPA 2002/02 : Indexation of Benefits from 1 July 2002
  • Comcare JPA 2001/01 : Indexation of Benefits from 1 July 2001
  • Comcare JPA 2000/03 : Indexation of benefits from 1 July 2000
  • Comcare Operations Manual vol.10, pt.3 : Prescribed person
  • Comcare Operations Manual vol.10, pt.3 : Dependent
  • Comcare Operations Manual vol.10, pt.3 : Wholly or mainly dependent children
  • Comcare Operations Manual vol.10, pt.3 : Prescribed children

 

 

 

 

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/3665-treatment-income-support-payments

Incapacity Handbook

The policy on incapacity payments under the Safety, Rehabilitation and Compensation Act 1988 (SRCA) is now contained within the ‘MRCA Info” Library under the “Incapacity Payments Policy” tab. Though contained in the MRCA Info Library the policy information relates to incapacity payments under both the SRCA and MRCA.

Please go to the Incapacity Payments Policy Manual http://clik.dva.gov.au/military-compensation-reference-library/incapacity-policy-manual

 

 

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook

Last amended

11.1 What is 'Incapacity'?

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-11-incapacity-work/111-what-incapacity

11.1.1 Terminology

'Incapacity' for the purposes of the SRCA and former Commonwealth compensation Acts, means incapacity for work.

  • It is also common usage that the word 'incapacity' also means 'incapacity payments'. Incapacity payments compensate injured employees for salary or other earned income lost due to the incapacitating effects of injury. The Act provides this compensation as regular payments calculated on a weekly basis but actually paid fortnightly through PMKeyS, the Defence payroll system.
  • These payments are not made at a flat rate but are calculated on the basis of formulae contained in the Act, in relation to the client's former income, degree of incapacity, receipt of superannuation and other factors.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-11-incapacity-work/111-what-incapacity/1111-terminology

11.1.2 SRCA definition of 'incapacity for work'

The word 'Incapacity' is not specifically defined in the SRCA although S4(9) does establish an extended basis for determining whether a person has an 'incapacity for work':

4(9) A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:

a)an incapacity to engage in any work, or

b)an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.

The word 'injury' used in this definition, is itself defined under Section 4. In short, it means only those injuries or diseases having a compensable nexus with employment.

Thus, a period of incapacity for work includes any period when:

  • the client is not working ('engage in any work') because of the injury, or
  • the client is on an approved rehabilitation program, or
  • the client is restricted in work hours, ability to undertake shifts or undertake certain elements of the job ('work at the same level'), or
  • the client is away from work attending medical treatment, etc., and
  • the client has incurred loss of earnings.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-11-incapacity-work/111-what-incapacity/1112-srca-definition-incapacity-work

11.1.3 Meaning of 'incapacity to engage in any work' - Ss4(9)(a)

This type of incapacity is for:

  • a period when a client is totally unable to work as a result of a compensable condition, or
  • a client is seeking medical treatment during work hours for a compensable condition.

During each of these periods, irrespective of the duration, the client is unable to engage in any work.

Note, that the AAT has rejected the argument that this phrase 'incapacity to engage in any work' at S4(9)(a) should be interpreted to mean that there is incapacity if there is any single form of work that the employee is unable to do. However the proper interpretation is that there is incapacity for 'any' work if there is now no form of work that the employee is able to do.

In Re Sullivan and Comcare (1998), the Tribunal said:

67 Mr Johnson also referred to the definition of 'incapacity for work' in S4(9) of the Act. He submitted that 'incapacity for work' does not mean that an employee is incapacitated for all work: merely that the person has some incapacity which restricts the sort of work the person can undertake. The Tribunal notes there are two parts of the definition in S4(9), although in both cases the reference is to an incapacity suffered by the employee as a result of an injury. Paragraph (a) is 'an incapacity to engage in any work'. The alternative paragraph (b) is 'an incapacity to engage in work at the same level' at which the person was employed immediately before the accident happened.

68 In the Tribunal's view, the paragraph (a) reference to an incapacity to engage in any work, is a reference to being unable to undertake any form of work at all. This is the plain English meaning. By contrast, paragraph (b) is linked to the employee's work for the particular employer before the injury. The Tribunal rejected Mr Johnson's submission that paragraph (a) should be read as meaning a person is incapacitated if there is any form of work which they are unable to do.'

This is an important finding in respect to contentions by some clients who, having been medically discharged from the ADF, continue to define themselves narrowly as infantryman, gunner etc. and assert that their incapacity for employment will not end unless re-enlisted at the same occupation. That assertion is not correct. In fact, they cease to be incapacitated when able to engage in suitable employment 'at the same level' i.e. the same rate of pay in any suitable civilian job.

  • See 11.1.4 for a discussion of 'work at the same level'.
  • Some members are medically discharged due to injuries which prevent only operational deployment or satisfaction of the ADF's rigorous physical fitness standards and they are thus able to work 'at the same level' in suitable civilian employment, i.e. virtually from the date of discharge. Nevertheless, it is DVA policy that such members are deemed to be 'incapacitated for all work' for the first four weeks after the date of medical discharge.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-11-incapacity-work/111-what-incapacity/1113-meaning-incapacity-engage-any-work-ss49a

11.1.4 Meaning of 'incapacity to engage in work at the same level' - S4(9)(b)

This type of incapacity occurs when a client, because of the accepted condition is:

  • on a graduated return to work
  • is unable to work pre-injury hours
  • unable to undertake specific duties
  • unable to work shifts or overtime, or
  • redeployed to a lower paying position.

The duration of incapacity will be the full duration of the period and not just the hours the client is absent.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-11-incapacity-work/111-what-incapacity/1114-meaning-incapacity-engage-work-same-level-s49b

12.1 Suitable Employment - the definition: S4(1), SRCA

The definition of 'Suitable employment' was amended by the Safety Rehabilitation and Compensation and Other Legislation Amendment Act 2007 to allow consideration of a client's capacity to work outside of the Commonwealth (or licensee), when calculating incapacity payments under section 19.  It is defined in S4(1) of the SRCA in the following terms:

              'suitable employment', in relation to an employee who has suffered an injury in respect of which compensation is payable under this Act means:

a)              in the case of an employee who was a permanent employee of the Commonwealth or a licensee on the day on which he or she was injured and who continues to be so employed – employment by the Commonwealth or the licensed corporation, as the case may be in work for which the employee is suited having regard to:

(i)              the employee's age, experience, training, language and other skills;

(ii)              the employee's suitability for rehabilitation or vocational retraining;

(iii)              where employment is available in a place that would require the employee to change his or her place of residence – whether it is reasonable to expect the employee to change his or her place of residence, and

(iv)              any other relevant matter, and

  1. in any other case – any employment (including self-employment), having regard to the matters specified in subparagraphs (a)(i), (ii), (iii) and (iv).

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-12-suitable-employment/121-suitable-employment-definition-s41-srca

13.1 What is a 'Former Employee'?

'Former employee' is a special technical term with a particular, defined meaning for the SRCA. Note, that 'former employee' does not mean just any ex-member of the ADF.

Division 3 of Part X of the SRCA sets out special transitional provisions for weekly incapacity payments for certain employees who were incapacitated before the commencement of the SRCA on 1 December 1988. These special provisions apply only to 'former employees', as defined in S123:

'Former employee' means a person who, immediately before the commencing day, was receiving weekly payments of compensation under the 1971 Act in respect of an injury resulting in an incapacity and had ceased to be an employee within the meaning of that Act before that day.'

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-13-former-employee/131-what-former-employee

13.1.1 Essential Requirements for 'former employee' status

Thus the essential requirements for a person to be a 'former employee' are:

  • he/she was receiving weekly payments of compensation immediately before 1 December 1988 (the 'commencing day' of the SRCA), i.e. actually on 30 November 1988, and
  • he/she had ceased to be a Commonwealth employee before 1 December 1988.

It is important to note that the person must actually have been receiving weekly compensation, it is not sufficient that they were entitled to compensation at that day. In the case of Comcare v. Neil (1993) the Federal Court decided that the phrase 'was receiving' should be given its natural meaning, i.e. it is not sufficient that a person was simply entitled to receive the 1971 Act's incapacity payments on 30 November 1988. That person must have actually been, as a historical fact, in receipt of payments made in respect of that day, to qualify as a 'former' employee.

Consequently, a retrospective determination – i.e. one made today under the SRCA – that a person was entitled to incapacity payments on the 30 November 1988 does not mean that this person is a 'former'.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-13-former-employee/131-what-former-employee/1311-essential-requirements-former-employee-status

13.1.2 Significance of being a 'Former Employee'

The significance of the Section 123 definition is that the current incapacity periods of 'former employees' are to be paid under Sections 131 to 137 of the SRCA. These are different transitional provisions to other old-Act clients and they specify a scheme of payment different to either that of the 1971 Act or of the SRCA.

Note: Given the very narrow defined meaning of 'former employee', delegates should avoid using this term to describe ordinary ADF dischargees.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-13-former-employee/131-what-former-employee/1312-significance-being-former-employee

14.1 What are Normal Weekly Earnings ('NWE')?

Incapacity payments are made on the basis of the client's loss of earned income where that loss is (of course) due to the compensable injury. The SRCA establishes the extent of lost income by reference to his/her 'Normal Weekly Earnings' (NWE).

NWE is determined by reference to formulae and definitions contained by Sections 8 and 9 of the SRCA. Section 8 prescribes how the NWE is to be calculated and Section 9 determines the period of pre-injury employment ('relevant period') from which the NWE is to be averaged.

  • Note that the NWE is based upon earnings at the date of injury, and not necessarily when incapacity for work first arises from the injury.

The operation of Sections 8 and 9 is explored in more detail at Chapter 31. However in the most general and most frequently arising case, NWE will be the average amount – including allowances and overtime – that the client was earning in the two weeks prior to the injury.

  • Notional, prospective improvements in earning capacity (e.g. likely promotions) are not included in NWE, although the automatic incremental progression normally applicable to trainees, apprentices and officer cadets is taken into account.

The NWE – as adjusted by indexation etc. into the future – is intended to provide a fair representation of what the client could reasonably have expected to earn at any particular time, i.e. would have earned but for the injury. NWE thus provides a significant element – a reference point – for the calculation of the weekly incapacity compensation.

  • The basic weekly entitlement under S19 of the SRCA is the difference between the NWE and the weekly amount the client is capable of earning, following the injury. This basic entitlement is then varied according to other formulae in Sections 19, 20, 21 and 21A, i.e. depending on duration of incapacity, hours actually worked and superannuation received. Note that NWE is basic and necessary to all of these calculations of entitlement.
  • This method of calculation is outlined in detail at chapter 30.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-14-normal-weekly-earnings-nwe/141-what-are-normal-weekly-earnings-nwe

15.1 What is 'AE'?

In general terms, AE means 'Able-to-Earn' i.e. the client's residual earning power following the injury.

'AE' is defined in S19(2) as the greater of the following amounts:

a)              the amount per week (if any) that the employee is able to earn in suitable employment

b)              the amount per week (if any) that the employee earns from any employment (including self-employment) that is undertaken by the employee during that week.

The 'AE' amount is used in three incapacity rate calculations in the SRCA:

  • calculation of the 'AE' amount in S19(2). This subsection provides that the weekly rate of incapacity compensation during the first 45 weeks after injury ('maximum rate compensation weeks') is the client's NWE less AE
  • calculation of the 'AE' amount in S19(3). This subsection provides that the weekly rate of incapacity compensation after the first 45 weeks is at a reduced rate of 75% of NWE. The subsection also provides for an increased rate of payment (combining earnings from employment and compensation) where the client undertakes actual employment during the week, and
  • where weekly compensation is paid to former employees under Part X of the SRCA, S132A provides that the amount that the client is able to earn in employment in a week is subtracted from the weekly incapacity compensation otherwise payable.

Section 19(4) of the SRCA sets out matters to which delegates 'shall have regard' when deciding the amount per week that a client is able to earn in suitable employment. These matters are relevant to all three provisions above, and are discussed in relation to 'deeming ability to earn' Note that amendments to the SRCA which commenced on 1 April 2002 provide that the AE amount includes both earnings from suitable employment and any other amount that a client earns from employment (including self-employment) during the week.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-15-able-earn-ae/151-what-ae

20.1 Checklist for delegates: is incapacity benefit payable?

A checklist has been devised for use by incapacity delegates when considering whether a client is entitled to weekly payments for incapacity. The checklist is located within Defcare Standard Letters.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-20-investigating-entitlement-payment/201-checklist-delegates-incapacity-benefit-payable

21.1 Delegates must use Defcare Incapacity Calculator

Defcare is the primary electronic recording medium for SRCA cases. It also provides guidance to delegates via the 'Incapacity Calculator'. The Calculator provides an interactive system which requires entry of relevant data such as date of injury, date of incapacity etc., and also asks a series of true/false questions about the case, each screen customised in response to the previous answers.

  • These questions, inevitably, must be cast in relatively broad terms. This Handbook is intended to help you obtain the data to determine whether the client has a valid entitlement requiring calculation, and to assist with responses to the Defcare Liability Calculator's questions.
  • Although the Incapacity Calculator has the highest level of authority in determining the amount of an entitlement, there is a broad range of issues not specifically canvassed by the Calculator, (i.e. mainly those relating to whether there is an entitlement to any payment in the first place).
  • The Calculator should therefore be used in conjunction with this Handbook and only after an entitlement to payment has been demonstrated. The Calculator should not be regarded as one-stop guidance on all matters relating to entitlements.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-21-using-defcare-calculator/211-delegates-must-use-defcare-incapacity-calculator

21.1.1 Failure to use the Calculator is a 'Critical Error'

Note: Use of the calculator when determining the quantum of an entitlement, is a mandatory procedure in all cases.

Failure to run the calculator is a 'critical error' for Quality Assurance purposes.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-21-using-defcare-calculator/211-delegates-must-use-defcare-incapacity-calculator/2111-failure-use-calculator-critical-error

21.1.2 Delegate retains responsibility for correctness of the decision

However remember that you are the Delegate, and it is you, not the computer who will be signing the determination!

The Calculator result is only a guide, (albeit a very powerful and complete guide) and you are not legally obliged to accept the Defcare result. It is possible to reject the Calculator result and determine another if you are not satisfied with the Calculator result. However as the Calculator rule base takes all policy into account, this should be an exceedingly rare event!

If and when you are ever faced with such an occurrence (i.e. Defcare gives a result which appears anomalous and not consistent with your understanding of the case), firstly go back and check your entries! If there continues to be a discrepancy, you should submit a query on the SRCA discussion line, i.e. before committing a determination to check:

a)whether you have made an error of policy, or

b)whether the rule base of the Defcare calculator needs adjustment.

If you still need to proceed with a decision which is at variance with the Calculator summary:

  • You must write a detailed justification of your preferred outcome, demonstrating that your actual determination is 1) legal, and 2) more consistent with the evidence and demonstrated circumstances of the case than that of the calculator.
  • This justification should be recorded BOTH on Defcare in the Investigation notes part of the calculator and also printed to the document file.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-21-using-defcare-calculator/211-delegates-must-use-defcare-incapacity-calculator/2112-delegate-retains-responsibility-correctness-decision

30.1 Overview SRCA - client not receiving Superannuation

For those periods of incapacity arising since 1 December 1988 the basic rate of compensation payable is determined primarily by reference to Section 19 of the SRCA.

The following overview consolidates and places Parts 31 – 37 in context.

Delegates requiring more detail or explanation should refer directly to those Parts.

Section 19 of the SRCA contains different provisions for calculating the rate of payment, depending on whether the client has accumulated less or more than 45 weeks of incapacity due to the injury.

The structure and some detail of the provisions of S19 was amended with effect from 1 April 2002. The guidance provided below at 30.1 to 30.7 relates only to the current (amended) provisions.  Although the basic scheme of this section was largely unchanged from that prior to 1 April 2002, there are important changes of detail. Delegates engaged in payments of incapacity under the SRCA but prior to April 2002 should refer to the more detailed guidance re: post-injury updates of NWE at 31.3.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-30-determining-rate-compensation-incapacity/301-overview-srca-client-not-receiving-superannuation

30.1.1 Client has been incapacitated for a total of less than 45 weeks

Note: The following guidance relates to S19 as amended from April 2002. Delegates engaged in paying incapacity for a period prior to April 2002 should therefore read the following summary in conjunction with the more detailed discussion at 31.3.

S19(2A) provides that a week during the first 45 weeks of incapacity (i.e. a period '45 times the employee's normal weekly hours') is to be designated a 'maximum rate compensation week'. S19(2) provides that the entitlement in a 'maximum rate compensation week' is ordinarily to be calculated by the formula:

(NWE – AE)

  • NWE is calculated in accordance with S8 and is a formal representation of what the client's earnings would have been but for the injury, i.e. based on average earnings during a 'relevant period' (i.e. a period as defined by S9)

    (see chapter  31 about NWE, including 31.2.4 re: 'relevant period')
  • AE is a representation of the client's post-injury earnings (See chapter 15 and chapter 32)

Note that incapacity payments, being income replacement and not a veteran's pension, is taxable at the appropriate marginal tax rate prior to payment to the client. Instructions as noted on the Tax Declaration form should always be followed.

For reservists the 'reserves earnings' component only of their income is not taxable and is discussed at 31.9 and 38.3.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-30-determining-rate-compensation-incapacity/301-overview-srca-client-not-receiving-superannuation/3011-client-has-been-incapacitated-total-less-45-weeks

30.1.2 Client has been incapacitated for a cumulative period exceeding 45 weeks

Note: The following guidance relates to S19 as amended from April 2002. Delegates engaged in paying incapacity for a period prior to that date should therefore read the following summary in conjunction with the discussion at 31.3.

The method of calculating weekly payments under S19(2) – i.e. the formula (NWE-AE) discussed at 30.1.1 above – extends only for the first 45 weeks of incapacity:

  • actually expressed by 19(2) as '45 times the employee's normal weekly hours'

Note: The 45 weeks is a cumulative total, and not necessarily one derived from a continuous period of incapacity. It is common for clients with chronic illnesses to suffer incapacity for work in a sporadic fashion, for example with the client off work for only days or a few weeks at a time or perhaps in longer but still discontinuous 'episodes', with this pattern persisting over a long period.

Delegates must diligently monitor the cumulative total period of 19(2) payments to ensure that the transition to S19(3) entitlement is made accurately, i.e. without any overpayment.

Subsection.19(3) provides that after 45 weeks of incapacity the S19(2) compensation entitlement is to be varied downwards to a level between 75% and 100% of that otherwise payable. The actual percentage of the pre-45 week entitlement previously payable, depends upon the hours per week that the client actually worked.

Subsection.19(3) in fact provides the following formula for post-45 week entitlements:

(adjustment percentage x NWE) – AE

where:

Adjustment percentage is a percentage equal to:

a)if the employee is not employed during that week – 75%, or

b)if the employee is employed for 25% or less of his or her normal weekly hours for that week – 80%, or

c)if the employee is employed for more than 25% but not more than 50% of his or her normal weekly hours during that week – 85%, or

d)if the employee is employed for more than 50% but not more than 75% of his or her normal weekly hours during that week – 90%, or

e)if the employee is employed for more than 75% but less than 100% of his or her normal weekly hours during that week – 95%, or

f)if the employee is employed for 100% of his or her normal weekly hours during that week – 100%.

Thus, upon the expiration of 45 weeks of proven incapacity, the entitlement of a person who is not working at all (0% of normal weekly hours) because of the injury, reduces to 75% of that formerly payable under S19(2). However the entitlement of a person who, for example, is able to work 75% of his normal weekly hours will amount to 95% of his S19(2) calculation.

Note that incapacity payments, being income replacement and not a veteran's pension, is taxable at the tax rate indicated on the clients Tax Declaration form prior to payment to the client.

  • The tax situation of reservists, for whom the reserves earnings portion only of their NWE is not taxable, is discussed at 31.2.3.

Subsections 19(2B), (2C) and (2D) of the SRCA are merely very detailed provisions relating to compensation in the balance of that week in which the period '45 times the employee's weekly hours' finally terminates, i.e. these subsections deal with the transition between the pre-and post 45-week periods. Nevertheless the practical result differs little or not at all from that which prevailed prior to 1 April 2002 and the complexities of 19(2B)–(2D) are handled by the existing rules in the Defcare Incapacity Calculator.

Delegates requiring more extensive guidance to S19(2B)–(2D) should read 31.1.1 and 31.1.2.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-30-determining-rate-compensation-incapacity/301-overview-srca-client-not-receiving-superannuation/3012-client-has-been-incapacitated-cumulative-period-exceeding-45-weeks

30.1.3 Where client's post-45 week compensation is less than 'minimum earnings'

This topic is also discussed at chapter 36.

Subsections 19(6) to (14), provide a financial 'safety net' for clients who are:

  • still incapacitated, in the period after the initial 45 weeks of incapacity, and
  • are in fact wholly incapacitated (i.e. worked 0 hours in the week), and
  • the $ value of 75% of (NWE – AE) + A is less than statutory 'minimum earnings'.

'

Minimum earnings' is a statutory dollar-value defined by S19(8) and is the total of:

  • a specified amount per week in respect of the client, plus
  • another specified value per week in respect of each 'prescribed person', plus
  • yet another specified value per week in respect of each 'prescribed child'.

Current $ values declared for each of these statutory amounts are subject to annual indexation increases. Current and historical rates are tabled at 36.1.3. 'Prescribed person' and 'prescribed child' are defined in detail at 36.2 to 36.6.

Thus, where a totally incapacitated client's '75% of NWE' entitlement falls below the 'minimum earnings' computed in his or her case, that entitlement is adjusted upwards to the amount of minimum earnings which applies (via S19(7) to 19(14)) in his/her case.

Furthermore, in cases where reservists are paid on the basis of 19(6), – either on the basis of their known NWE or as a form of 'interim payment' (see 30.6.1) – there is no distinction between compensation for reserves or civilian income.

  • Note that all incapacity payments, including the statutory rates provided by S19(6), represent income replacement and are not made on the same basis as a veteran's pension. They are therefore taxable at the current marginal tax rate prior to payment to the client.

Therefore, this means that where S19(6) payments are made to reservists, the whole amount of that payment is taxable.

See Part 30.6 for a more detailed discussion of this whole topic.

See 36.1.3 for a table of current and past statutory amounts re: 'minimum earnings'.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-30-determining-rate-compensation-incapacity/301-overview-srca-client-not-receiving-superannuation/3013-where-clients-post-45-week-compensation-less-minimum-earnings

30.1.4 Maximum limit to post-45 week compensation (150% AWOTEFA)

There is no upper limit to the compensation payable under S19(2) – i.e. within the first 45 weeks of incapacity – other than the full amount of the client's NWE.

However after the first 45 weeks of incapacity Subsection 19(5) provides an upper limit to the amount of compensation payable under Subsection 19(3).

Subsection 19(5) provides that no amount calculated under S19(3) may exceed 150% of the Average Weekly Ordinary Time Earnings of Full-Time Adults (AWOTEFA).

  • AWOTEFA is published, from time to time, by the Australian Statistician.
  • See chapter 35 for a more detailed discussion of this topic

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-30-determining-rate-compensation-incapacity/301-overview-srca-client-not-receiving-superannuation/3014-maximum-limit-post-45-week-compensation-150-awotefa

30.1.5 'Former Employees' who do not receive superannuation

'Former Employee' is a specific technical term under the SRCA, and means a person who satisfies the criteria at S123.

' Former Employee' does not, therefore, refer to just any ex-member of the ADF.

Compensation entitlements of those 'Former Employees' who are not in receipt of superannuation forms a special case which is discussed at chapter 44.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-30-determining-rate-compensation-incapacity/301-overview-srca-client-not-receiving-superannuation/3015-former-employees-who-do-not-receive-superannuation

31.1 Overview of Normal Weekly Earnings ('NWE')

Last amended: 19 June 2014

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-31-normal-weekly-earnings-nwe/311-overview-normal-weekly-earnings-nwe

31.1.1 Overview - the role of NWE

Sections 8 and 9 of the SRCA provide for the calculation of normal weekly earnings (NWE). Essentially, these provisions are a re-enactment of S25 of the Compensation (Commonwealth Government Employees) Act 1971 (the 1971 Act), and allow for the calculation of a weekly amount that is a fair representation of what a client would have earned but for their compensable injury.

See 14.1 and 14.2 for general discussion of content and operation of S8 and S9.

In short, the Normal Weekly Earnings (NWE) represents a deemed value in respect of the client's pre-injury earnings.

NWE is intended to provide a fair representation of what the client could normally have expected to earn at any particular point in time but for the injury, based on the client's actual earning capacity at the time of injury. It is subsequently adjusted for those general (industrial) wage movements current between injury and time of incapacity.

NWE for reservists includes civilian earnings as well as earnings from the Commonwealth (i.e. full-time civilian + part-time reserves employment).

NWE thus provides a reference point for the calculation of the weekly incapacity compensation entitlement for a client under the SRCA. It is incorporated within all incapacity payment calculations other than for some categories of 'Former Employee' (see chapter 13) and also other than for those periods of incapacity which predate the SRCA.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-31-normal-weekly-earnings-nwe/311-overview-normal-weekly-earnings-nwe/3111-overview-role-nwe

31.1.2 Overview - The basis of the NWE calculation

Subsection 8(1) specifies a formula for calculating NWE which can be paraphrased as:

(average weekly hours worked x average hourly rate) + allowances

Note: This calculation is dealt with in more detail and with more exactness at 31.2.

Furthermore, Subsection 8(2) provides a second formula for additional NWE in respect of those clients 'required to work overtime on a regular basis' i.e.:

(average hours of overtime per week x average hourly overtime rate)

Note: This calculation is dealt with in more detail and with more exactness at 31.1.3

Both of the above calculations are based on averages (of hours, allowances etc.) taken during a 'relevant period'. The term 'relevant period' is defined by Section 9.

This issue is dealt with in more detail at 14.2 and 31.2.4.

Calculations of NWE for reservists are conducted on the same basic principles as above, but differ from those of full-time members in that they are have two components, i.e. part-time reserves earnings plus earnings from civilian work also.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-31-normal-weekly-earnings-nwe/311-overview-normal-weekly-earnings-nwe/3112-overview-basis-nwe-calculation

31.1.3 Overview - establishing the components of the NWE calculation

Note that NWE is based upon the client's earnings for the period whilst in Commonwealth employment, not earnings from subsequent employment undertaken after discharge from the ADF.

In practice, most incapacity payments made to full-time ADF members are made after the member has discharged. In all such cases the NWE is based on the higher of either the rank/pay at date of injury or the rank/pay group at discharge, and subsequently adjusted by the Wage Cost Index as per S8(9) (b&c) of the SRCA.

Section 8 does provide for adjustment to the NWE to account for promotions, changes to award payments, allowances etc. following the injury.

Some clients may have multiple periods of ADF employment, including full-time and part-time service. NWE is always based on earnings from the period of employment during which the injury occurred.

Example: an ex-member enlisted in the Army on 6 August 1968 and discharged from full-time service on 8 August 1980, at which time she held the rank of Corporal Pay Group 3.  She subsequently enlisted in the Reserves and continued to serve for 13 years before discharging in 1993, at the rank of Sergeant Pay Group 4. If she was injured during full-time service her NWE is calculated at discharge from full-time service as a Corporal Pay Group 3.  If she was injured during Reserve service then her NWE is based on Reserve plus civilian earnings at the time of her discharge from the Reserves in 1993. See 31.3 below for guidance on post-injury adjustments to NWE.

Merely notional improvements in earning capacity (e.g. likely future promotions or loss of career prospects) are not taken into account.

  • However some classes of employee (e.g. recruits and trainees, apprentices and officer cadets) are ordinarily advanced in rank and/or pay-level automatically, i.e. as the training course progresses. Subsection 8(6) requires that NWE encompass this incremental form of advancement.
  • This topic is discussed in more detail at 31.3.6 and 31.3.5.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-31-normal-weekly-earnings-nwe/311-overview-normal-weekly-earnings-nwe/3113-overview-establishing-components-nwe-calculation

31.1.4 Quick Reference Guide for Establishing Normal Weekly Earnings for Current Serving and Discharged Members

Last amended: 19 June 2014

Service giving rise to condition
Current service
Normal Weekly Earnings (NWE)
Actual Earnings (AE)
Normal Weekly Hours (NWH)
Notes

1

Permanent Forces

Permanent Forces

Full-time ADF pay & allowances

Actual ADF pay & allowances

36.75

2

CFTS

Part-time

Reserve

Full-time ADF pay & allowances

Actual reserve pay & allowances

+

civilian pay & allowances

or deemed earnings

36.75

No choice to use pre-CFTS earnings as NWE.

3

Part-time

Reserve

Part-time

Reserve

Reserve pay & allowances*

+

Civilian pay & allowances**

Actual reserve pay & allowances

+

civilian pay & allowances

or deemed earnings

Reserve hours*

+

Civilian hours**

See Part 31.9 of the SRCA Incapacity Handbook.

4

Permanent Forces

Part-time

Reserve

Full-time ADF pay & allowances

Actual reserve pay & allowances

+

civilian pay & allowances

or deemed earnings.

36.75

No Remuneration Amount.

Superannuation is offset.

5

Cadets

Cadets

Cadet pay & allowances

+

civilian pay and allowances

Actual Cadet pay & allowances

+

civilian pay and allowances

or deemed earnings.

Cadet hours

+

Civilian hours

Officers and Instructors of Cadets may be remunerated, and have Cadet pay, which is taxable.  Other Cadets may have a civilian component of NWE only.

Notes

NWE is generally based on a 2-week relevant (example) period when the person was continuously employed by the Commonwealth prior to the onset of incapacity.  Delegates have discretion to determine example periods as is considered reasonable.

*  Reserve pay and allowances :

Long-term incapacity where the member is unlikely to return to Reserve service:

current (financial) year of service – (Parades Attended + Parades expected to attend for the year) x the daily rate of Reserve Pay x 6/313. to get a weekly rate of Reserve pay. See Part 31.9.3 of the SRCA Incapacity Handbook.

history of service – (Parades Attended during the previous financial year x the daily rate of Reserve pay x 6/313 to get a weekly rate of Reserve pay. See Part 31.9.4 of the SRCA Incapacity Handbook.

Short-term incapacity used for short-term or intermittent periods of incapacity.  It is the number of parades the member would have attended if not incapacitated x the daily rate of reserve pay.  See Part 31.9.6 of the SRCA Incapacity Handbook

**  Civilian pay and allowance are based on actual civilian earnings prior to the onset of incapacity.  But NWE will default to 7 x the daily rate of reserve pay if reserve + civilian is less than 7 x the daily rate of Reserve pay.

Maximum rate weeks are counted for any periods of incapacity as a serving member.



SRCA INCAPACITY PAYMENTS - QUICK REFERENCE GUIDE.  DISCHARGED MEMBERS

Service giving rise to condition
Normal Weekly Earnings (NWE)
Actual Earnings (AE)
Normal Weekly Hours (NWH)
Notes

1

Permanent Forces

Full-time ADF pay & allowances

Actual or deemed earnings as per ss19(4)

36.75

No Remuneration Amount

2

CFTS

Full-time ADF pay & allowances

Actual or deemed earnings as per ss19(4)

36.75

No Remuneration Amount

No Choice of pre-CFTS earnings

3

Part-time Reserve

(with civilian work or skills)

Reserve pay & allowances*

+

civilian pay and allowances**

Actual or deemed earnings as per ss19(4)

Reserve hours*

+

Civilian hours**

4

Part-time Reserve

(not engaged in civilian work and no employment skills)

Reserve daily rate

& allowances x7

Actual or deemed earnings as per ss19(4)

36.75

This method of calculating NWE is also used if reserve + civilian earnings are less than 7 x the Reserve daily rate.

5

Cadets

Cadet pay & allowances

+

civilian pay and allowances

Actual or deemed earnings as per ss19(4)

Cadet hours

+

Civilian hours

Officers and Instructors of Cadets may be remunerated, and have Cadet pay.

Cadet pay is taxable.  Other Cadets may not have a civilian component of NWE only.

NWE may default to f/t rate of pay for Private PG2 if a school-aged Cadet is totally and permanently incapacitated.

Notes

Under SRCA, NWE is generally calculated as it is for a current serving members.  The amount of NWE is then set at the date of discharge and only indexed in accordance with the WPI.

*   Reserve Pay and allowances for discharged members is generally calculated using the long-term incapacity method described above for current serving members.

Last service is not relevant to calculation of NWE under the SRCA.

Special rules apply to 'former' employees under the SRCA who were in receipt  of incapacity payments on 30 November 1988.  As the term 'former' has legislative meaning given by s123 the term discharged member is used to describe those members not currently serving.  This table does not include calculation of NWE for 'former' members within the meaning of s123.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-31-normal-weekly-earnings-nwe/311-overview-normal-weekly-earnings-nwe/3114-quick-reference-guide-establishing-normal-weekly-earnings-current-serving-and-discharged-members

32.1 Client's post-injury ability to earn: 'AE' - S19(2)

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-32-ae-and-s194/321-clients-post-injury-ability-earn-ae-s192

32.1.1 AE = Able-To-Earn

The nature of 'AE' and its relationship to the amount of compensation payable, is discussed at length at 15.1 and 15.2.

In short, AE refers to the client's post-injury earning capacity and is basic to most calculations of the incapacity benefit. In contrast, NWE represents the pre-injury capacity.

While NWE is relatively static (apart from indexation) the AE varies widely depending upon the client's circumstances, including state of convalescence, progress with a vocational rehabilitation program, etc. In general, it is expected that a member's AE will improve over time with active case management, and with rising AE the formulae for calculating weekly entitlement then limits or ends payment, accordingly.

Delegates in fact will be involved in determining the client's AE at each and every period of incapacity for which the client seeks payment. Mostly, this involves requiring and examining a medical certificate of work-hour capacity and the progress of rehabilitation programs etc in order to determine the type or value of employment to which these hours may be applied.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-32-ae-and-s194/321-clients-post-injury-ability-earn-ae-s192/3211-ae-able-earn

32.1.2 Operation of AE per S19(2)

'AE' is defined in S19(2) as the greater of the following amounts:

a)the amount per week (if any) that the employee is able to earn in suitable employment

b)the amount per week (if any) that the employee earns from any employment (including self-employment) that is undertaken by the employee during that week.

This means that the AE may be either an 'actual' amount that the client is currently earning, or an amount deemed by the delegate in accord with the client's known ability, in cases where the client is either unemployed or underemployed for reasons other than the injury.

The 'AE' amount is used in three incapacity rate calculations in the SRCA:

  • calculation of the 'AE' amount in S19(2). This subsection provides that the weekly rate of incapacity compensation during the first 45 weeks after injury ('maximum rate compensation weeks') is the client's NWE less AE
  • calculation of the 'AE' amount in S19(3). This subsection provides that the weekly rate of incapacity compensation after the first 45 weeks is at a reduced rate of 75% of NWE. The subsection also provides for an increased rate of payment (combining earnings from employment and compensation) where the client undertakes actual employment during the week, and
  • where weekly compensation is paid to former employees under Part X of the SRCA, S132A provides that the amount that the client is able to earn in employment in a week is subtracted from the weekly incapacity compensation otherwise payable.

Section 19(4) of the SRCA sets out matters to which delegates 'shall have regard' when deciding the amount per week that a client is able to earn in suitable employment. These matters are relevant to all three provisions above, and are discussed in relation to Part 32.2 'Ability to Earn in Suitable Employment', below.

Note that amendments to the SRCA which commenced on 1 April 2002 provide that the AE amount includes both earnings from designated 'suitable employment' and any other amount that a client earns from employment (including self-employment) during the week.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-32-ae-and-s194/321-clients-post-injury-ability-earn-ae-s192/3212-operation-ae-s192

33.1 A Higher Rate of Compensation is Paid During the First 45 Weeks After Injury

It is important to determine whether the period of incapacity under investigation is within the first 45 weeks during which the client has been incapacitated because a higher weekly rate of compensation is paid during this period.

This results from the operation of Ss19(2)-(2D) of the SRCA which provides that compensation during 'maximum rate compensation weeks' is NWE – AE.

With the insertion of S19(2A) into the Act on 1 April 2002, the period is actually calculated on an hourly basis and comprises 45 times the employee's 'normal weekly hours'.

After the first 45 weeks, weekly compensation is paid under S19(3), which sets a rate of 75% of NWE (this may be increased if the client undertakes actual hours of employment during the week).

See chapter 34 about how to make payments after 45 weeks.

Note: The rate of weekly payment during the first 45 weeks of incapacity may also be affected by other factors such as receipt of superannuation and the maximum rate of compensation set by S19(5).

  • Superannuation issues are discussed at chapter 37.
  • Maximum rate of compensation payable is discussed at 35.1.
  • Minimum payment and statutory rates are discussed at chapter 36.

See also 'Calculation Period' at 33.3, which discusses when a week of incapacity should commence and how to calculate entitlement when the client's circumstances change during a week.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-33-payments-during-maximum-rate-compensation-weeks-s192-2a/331-higher-rate-compensation-paid-during-first-45-weeks-after-injury

33.1.1 S19(2) - before 1 April 2002

Until 1 April 2002, S19(2) provided for the amount of compensation payable in the first 45 weeks of incapacity:

19(2) Subject to this Part, Comcare is liable to pay compensation to the employee in respect of the injury, for each of the first 45 weeks (whether consecutive or otherwise) during which the employee is incapacitated, of an amount calculated under the formula: NWE – AE...

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-33-payments-during-maximum-rate-compensation-weeks-s192-2a/331-higher-rate-compensation-paid-during-first-45-weeks-after-injury/3311-s192-1-april-2002

33.1.2 S19(2)-(2D) - on and after 1 April 2002

As a result of legislative amendments commencing on 1 April 2002, the amount of compensation payable in the first 45 weeks of incapacity is worked out under Ss19(2)-(2D). The amendments introduced new terminology and additional calculations for a part of a week, however the new provisions had the same general effect as the policy adopted by DVA in relation to former S19(2) and did not require any change in the method which the Defcare Incapacity Calculator uses for calculating the first 45 weeks. The new provisions apply to all determinations made on or after 1 April 2002.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-33-payments-during-maximum-rate-compensation-weeks-s192-2a/331-higher-rate-compensation-paid-during-first-45-weeks-after-injury/3312-s192-2d-and-after-1-april-2002

33.1.3 Beneficial Amendment by Military Compensation Act - 7 April 1994

The Military Compensation Act 1994, which commenced on 7 April 1994, provided that clients continue to receive weekly compensation at 100% of normal weekly earnings for the first 45 weeks of incapacity, in respect of payments made under Ss20, 21 and 21A. This beneficial amendment applies only to clients who were discharged on or after 7 April 1994.

If a client was discharged before 7 April 1994, compensation paid under Ss20, 21 and 21A is reduced to 75%* of NWE immediately upon discharge from the ADF.

[* the percentage of NWE may be higher if the client engages in suitable employment.]

Source URL: https://clik.dva.gov.au/node/19742

33.1.4 Review procedures

Progress toward 45 weeks is monitored through the Defcare Incapacity Calculator and the Period Summary Report. A warning on Defcare issues 4 weeks before the expiry of 45 weeks incapacity at 100% 0f NWE. Action taken to ensure that, where it appears likely the 45 week total will be reached, that:

  • The client is advised of the impact of reaching the 45 weeks including the possibility of a reduction in the rate of compensation payable.
  • Action is taken by the use of resubmit to ensure that the client's case is recalculated once the 45 weeks total is reached. It is important that this action is taken promptly to reduce the possibility of an overpayment occurring.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-33-payments-during-maximum-rate-compensation-weeks-s192-2a/331-higher-rate-compensation-paid-during-first-45-weeks-after-injury/3314-review-procedures

34.1 Normal Weekly Hours ('NWH') - S19(2C), (2D)

After 45 weeks, the normal weekly hours (NWH) worked by a client in a week is relevant to the amount of incapacity compensation received for that week. Where a client is actually employed for part or all of a week, their payment is increased according to a scale set out in S19(3) based on the number of actual hours worked as a percentage of normal weekly hours.

During the first 45 weeks of incapacity, compensation is paid at 100% of NWE under S19(2)-(2C), making it unnecessary to compare actual hours of employment with normal weekly hours. See chapter 33 re: first 45 weeks.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-34-payments-after-45-weeks-and-adjustment-percentage-s192b-3/341-normal-weekly-hours-nwh-s192c-2d

34.1.1 S19(3) - before 1 April 2002

Section 19(3) was in the following form until 31 March 2002:

19(3) Subject to this Part, Comcare is liable to pay to the employee, in respect of the injury, for each week during which the employee is incapacitated, other than a week referred to in Subsection (2), compensation:

a)where the employee is not employed during that week – of an amount equal to 75% of his or her normal weekly earnings less the amount (if any) that he or she was able to earn during that week in suitable employment

b)where the employee is employed for 25% or less of his or her normal weekly hours during that week – of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 80% of his or her normal weekly earnings

c)where the employee is employed for more than 25% but not more than 50% of his or her normal weekly hours during that week – of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 85% of his or her normal weekly earnings

d)where the employee is employed for more than 50% but not more than 75% of his or her normal weekly hours during that week – of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 90% of his or her normal weekly earnings

e)where the employee is employed for more than 75% but less than 100% of his or her normal weekly hours during that week – of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 95% of his or her normal weekly earnings, and

f)where the employee is employed for 100% of his or her normal weekly hours during that week – of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 100% of his or her normal weekly earnings.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-34-payments-after-45-weeks-and-adjustment-percentage-s192b-3/341-normal-weekly-hours-nwh-s192c-2d/3411-s193-1-april-2002

34.1.2 S19(3) - on and after 1 April 2002

Section 19(3) was repealed and substituted on 1 April 2002 by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2001 with the new provision having the same general effect as the previous provision. The new provision applies to all determinations made on or after 1 April 2002.

The amendments introduced an 'adjustment percentage', defined in S19(3), however the overall effect of stepping up the amount of compensation payable according to the number of actual hours worked remained unchanged.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-34-payments-after-45-weeks-and-adjustment-percentage-s192b-3/341-normal-weekly-hours-nwh-s192c-2d/3412-s193-and-after-1-april-2002

35.1 Maximum Payment is 150% of AWOTEFA

Section 19(5) of the SRCA says:

19(5) Where an amount of compensation calculated under Subsection (3) exceeds 150% of the amount called the 'Average Weekly Ordinary Time Earnings of Full-Time Adults', as published from time to time by the Australian Statistician, the amount so calculated shall be reduced by an amount equal to the excess.

This means that the weekly incapacity compensation payable after the first 45 weeks must not exceed 150% of an amount called the 'Average Weekly Ordinary Time Earnings of Full-time Adults' (AWOTEFA).

AWOTEFA is published from time to time by the Australian Statistician and is updated on a quarterly basis. These new rates are provided to delegates in CLIK and Comcare Jurisdictional Policy Advices (JPAs) (formerly in Comcare Operational Advices (COAs)).

A new AWOTEFA rate applies from the date that it is published by the Australian Bureau of Statistics until the day (approx. three months later) when ABS publishes an updated AWOTEFA rate.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-35-maximum-payment-s195/351-maximum-payment-150-awotefa

36.1 Statutory Minimum Earnings Rate

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-36-minimum-payment-and-statutory-rates-s196-14/361-statutory-minimum-earnings-rate

36.1.1 Content of SRCA 19(6) to (9)

The SRCA provides for a minimum level of compensation (calculated at statutory rates, rather than based on a NWE), in some cases. This provision is governed by S19(6)-(9) which reads as follows:

6.Where an amount of compensation calculated under paragraph (3)(a) is less than the minimum earnings, the amount so calculated shall be increased by an amount equal to the difference between that amount and the minimum earnings.

7.For the purposes of Subsection (6), the minimum earnings of an employee shall be taken to be:

a)$202, or, if Subsection (8) or (9) applies in relation to the employee, the sum of $202 and the amount or amounts required to be added under whichever of those subsections applies, or

b)an amount equal to 90% of the employee's normal weekly earnings

whichever is less.

8. If there are prescribed persons wholly or mainly dependent on the employee, there shall be added to the amount of $202 specified in the paragraph (7)(a) the amount of $50.

9. If there are prescribed children in relation to whom this Act applies (whether born before, on or after the date of the injury) wholly or mainly dependent on the employee, there shall be added to the amount of $202 specified in paragraph (7)(a) the amount of $25 for each of those children, but an amount shall not be so added for a child in relation to any period before the date of the birth of that child.

The actual $ amounts specified in these subsections have been updated regularly since proclamation of the Act and delegates should apply the amounts specified in the table at 36.1.3

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-36-minimum-payment-and-statutory-rates-s196-14/361-statutory-minimum-earnings-rate/3611-content-srca-196-9

36.1.2 The meaning of the 'minimum earnings' provisions

This provision means that:

  • after the first 45 weeks of incapacity, and
  • if the client is not engaged in actual employment during the week,

where compensation calculated under S19(3)(a) is less than 'minimum earnings' i.e. the lesser of:

  • a statutory rate set by Ss19(7)(a), (8) and (9), or
  • 90% of the employee's normal weekly earnings,

the compensation payable shall be raised to that minimum level.

Note that the 'minimum earnings' floor does not apply where the client is engaged in some actual employment during the week. Where the client is so engaged,

Ss19(3)(b)-(f) provide for a higher rate of compensation based on their relevant 'adjustment percentage'.

Note also that Section 19(7)(a) specifies the 'minimum earnings' amount for a client and Subsections (8) and (9) provide for a higher amount when the employee has 'prescribed persons' or 'prescribed children' (respectively) wholly or mainly dependent on him or her. The identity of prescribed persons, prescribed children and the matter of dependency is discussed in detail at Parts 36.2 to 36.6. These instructions are of some importance when applying the minimum earnings provisions and delegates should read those Parts now.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-36-minimum-payment-and-statutory-rates-s196-14/361-statutory-minimum-earnings-rate/3612-meaning-minimum-earnings-provisions

36.1.3 Historical Statutory Minimum Earnings Rates

Historical weekly minimum earnings under Ss19(7)(a), (8) and (9) are set out in the Table below:

Date

S19(7)(a) Rate Employee

S19(8) Rate Prescribed person

S19(9) Rate Prescribed child

1 December 1988

$202.00 pw

$50.00 pw

$25.00 pw

1 July 1989

$217.55 pw

$53.85 pw

$26.93 pw

1 July 1990

$234.52 pw

$58.05 pw

$29.03 pw

1 July 1991

$250.70 pw

$62.06 pw

$31.03 pw

1 July 1992

$254.46 pw

$62.99 pw

$31.50 pw

1 July 1993

$255.22 pw

$63.18 pw

$31.59 pw

1 July 1994

$260.07 pw

$64.38 pw

$32.19 pw

1 July 1995

$266.57 pw

$65.99 pw

$32.99 pw

1 July 1996

$280.17 pw

$69.36 pw

$34.67 pw

1 July 1997

$284.37 pw

$70.40 pw

$35.19 pw

1 July 1998

$284.37 pw

$70.40 pw

$35.19 pw

1 July 1999

$288.92 pw

$71.53 pw

$35.75 pw

1 July 2000

$294.12 pw

$72.82 pw

$36.39 pw

1 July 2001

$311.18 pw

$77.04 pw

$38.50 pw

1 July 2002

$320.83 pw

$79.43 pw

$39.70 pw

1 July 2003

$330.45 pw

$81.81 pw

$40.89 pw

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-36-minimum-payment-and-statutory-rates-s196-14/361-statutory-minimum-earnings-rate/3613-historical-statutory-minimum-earnings-rates

37.1 Effect of Superannuation on Incapacity Payments

Content contained within Chapter 37 (37.1 to 37.12) has been removed as information has been replaced by content in Chapter 6.6 of the MRCA Policy Manual - Effect of Commonwealth superannuation on incapacity payments.

 

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-37-superannuation-ss20-21-and-21a/371-effect-superannuation-incapacity-payments

38.1 Overview

Incapacity payments are made as economic loss compensation by way of income replacement, as distinct from non-economic loss compensation such as for permanent impairment.  Incapacity payments are generally linked to a person's pre-injury earnings and, are taxable at the appropriate marginal tax rate prior to payment to the client.  Instructions as noted on a person's Tax Declaration form must be followed.

The following types of incapacity payments are exempt from taxation by virtue of sections 51-32 and 51-33 of Income Tax Assessment Act 1997:

  • Payments for the loss of pay and allowances while on a period of warlike service;
  • Payment for the loss of allowances while on a period of non-warlike service; and
  • Payment for the loss of pay or allowances as a part time reservist.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-38-taxation-arrangements-applicable-incapacity-payments/381-overview

44.1 Overview

Division 3 of Part X of the SRC Act sets out special transitional provisions for weekly incapacity payments for certain employees who were incapacitated before the commencement of the SRC Act on 1 December 1988. These special provisions apply only to "former employees", as defined in s 123:

"former employee" means a person who, immediately before the commencing day, was receiving weekly payments of compensation under the 1971 Act in respect of an injury resulting in an incapacity and had ceased to be an employee within the meaning of that Act before that day;

Thus the essential requirements for a person to be a "former employee" are:

  • they were receiving weekly payments of compensation immediately before 1 December 1988 (the "commencing day" of the SRC Act); and
  • they had ceased to be a Commonwealth employee before 1 December 1988.

"was receiving weekly payments of compensation"

It is important to note that the person must actually have been receiving weekly compensation; it is not sufficient that they were entitled to compensation at that day (Comcare v Neil).

This is illustrated by the AAT decision in Re Delaney where the Office of Commonwealth Employees Compensation accepted liability for the applicant's injury on 9 July 1987, but a rate of incapacity payment was not determined until 1991 because of delays in obtaining medical reports and in the determination process. The Tribunal, following Comcare v Neil, held that it was necessary for the applicant to be in actual receipt of weekly compensation; being entitled to receive compensation did not bring him within the definition of "former employee".

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-44-transitional-incapacity-provisions-former-employees/441-overview

44.1.1,"Current employee" or "non-former employee"

For policy and administrative purposes, clients are often described as "current employees" or "non-former employees". These terms have no statutory basis, but they are a convenient way of describing any person covered by the SRC Act who is not a former employee.

A "current employee" may have been injured, and have retired, before 1 December 1988; the critical issue of distinction is whether they were receiving weekly compensation at the commencing day.

This distinction means that it is both possible and correct for two people, who received similar injuries in the same training accident before 1 December 1988 and who retired at about the same time, to have quite different compensation entitlements.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-44-transitional-incapacity-provisions-former-employees/441-overview/4411current-employee-or-non-former-employee

44.1.2 Implications of being a former employee

Division 3 of Part X of the SRC Act (ss 131 - 137), which sets out transitional and savings provisions, provides incapacity compensation benefits for former employees which are generally more favourable than the incapacity benefits available to current employees. In particular, former employees continue to receive weekly incapacity compensation after [glossary:Age Pension age:469], a benefit which is not available to current employees because of the age bar in s 23(1) in Part II of the Act.

 

Note, however, that s 134 reduces the amount of compensation payable to former employees, when the former employee turns [glossary:Age Pension age:469], by 5% for each year since the commencement of the Act. This formula ensures that, after 2008, former employees will not receive compensation once they turn [glossary:Age Pension age:469], and will be in the same position as those who were injured after 1 December 1988. Former employees who turn [glossary:Age Pension age:469] before 2008 will continue to receive the appropriate reduced rate of compensation until their incapacity ceases or until their death.

 

A new s 134(2), which was inserted into the SRC Act by the Industrial Relations and other Legislation Amendment Act 1995 with effect from 15 January 1996, makes it clear that the reduced rate of weekly compensation paid under s 134 remains frozen. Neither s 8 (which provides for calculation and indexation of normal weekly earnings) nor s 13 (which provides for calculation and indexation of certain compensation benefits in accordance with the consumer price index) apply to the reduced amount of compensation calculated in accordance with s 134(1).

 

 

 

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-44-transitional-incapacity-provisions-former-employees/441-overview/4412-implications-being-former-employee

44.1.3,"Former employee" - special cases

The vast majority of eligible former employees were identified as such and recorded in December 1988. Occasionally, however, special cases arise and must be considered by delegates.

Former employees who cease to receive incapacity payments and later re-establish entitlement

If a former employee ceased receiving incapacity payments (eg. because of improvement in their condition) and subsequently re-establishes an entitlement to compensation, whether for the original injury or a fresh injury, they must continue to be treated as a former employee. The rule is: "once a former, always a former".

Benefits were suspended or wrongly cancelled as at 1 December 1988

If weekly compensation was suspended or cancelled as at 30 November 1988, and it was later reinstated (in respect of that day) by the Administrative Appeals Tribunal, or on a reconsideration, the client is to be treated as "receiving compensation" for the purposes of the definition of former employee.

Compensation entitlements affected by damages

Under s 99 of the 1971 Act, weekly compensation for incapacity was not payable to an employee who recovered lump sum damages until the amount of compensation foregone equalled the amount of damages received. Where the lump sum was large, this suspension of compensation payments could extend for 10 - 20 years.

In these cases, when compensation once again becomes payable, the client may be entitled to be treated as a former employee.

The client should be treated as a former employee if investigation clearly shows that:

  • they retired from Commonwealth employment before 1 December 1988; and
  • their entitlement to payment of weekly compensation was suspended under s 99 of the 1971 Act, before 1 December 1988, because of the recovery of damages.

Note: This does NOT include situations where compensation was redeemed in a lump sum.

Before compensation is paid, evidence must be obtained which demonstrates that the compensation which would have been paid during the intervening period equals or exceeds the common law award. The following points should be noted:

  • contemporaneous medical evidence must support the proposition that the client was incapacitated and identify the period or periods of incapacity;
  • medical expenses should be supported by receipts or accounts;
  • rates of compensation should be calculated at the applicable rate under the legislation applying at the time for each period of proven incapacity;
  • periods of incapacity before 1/12/1988 should be calculated under the 1971 Act (usually ss 45 or 46). Under the 1971 Act, generally the first 26 weeks of incapacity were paid at 100% of NWE and thereafter statutory rates applied;
References
  • DCA 66 : "Former employee"
  • Comcare v Neil (1993) 41 FCR 517 : Definition of former employee; "was receiving weekly payments" of compensation
  • Re Delaney and Comcare [2002] AATA 110 (21 February 2002) : "was receiving weekly payments" of compensation
  • Reserve Bank & Comcare and Wheeler (1990) 12 AAR 160 : Compensation wrongly cancelled

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-44-transitional-incapacity-provisions-former-employees/441-overview/4413former-employee-special-cases

50.1 Background

At any time during the life of an Incapacity claim, delegates may decide that medical review is appropriate to confirm ongoing Incapacity and/or a clients potential to benefit from a rehabilitation program.  This may be at the very beginning of a new Incapacity claim or a new period of Incapacity, or it may be at some stage during long term Incapacity.

When arranging medical reviews delegates should take into account whether the person has a treating Specialist or General Practitioner who they consult regularly.  In the first instance it is preferable to obtain a report from the person's treating Specialist, or General Practitioner if there is no treating Specialist.  If the circumstances of the case warrant it, a review by an independent Specialist may be desirable.  When arranging an assessment by an independent Specialist consideration should be given to client's ability to attend and consideration for travel arrangements particularly for rural and/or remote clients.  Clients should be given sufficient notice about an appointment where possible to allow time for them to confirm their attendance and/or have it changed to a more suitable date or time.  There are standard letters in DEFCARE and CADET for this purpose.

If a client fails to attend an appointment arranged by DVA, there will be an account for non-attendance.  We should pay the account to the provider as normal but then write to the client (there is a standard letter in DEFCARE) and advise them they may be liable to pay the non-attendance fee unless they can provide us with a reasonable cause as to why they did not attend.

Under Section 57 of the SRCA, if a client refuses or fails, without reasonable excuse, to undergo an examination their rights to compensation can be suspended until the examination takes place. This means all benefits are ceased including Incapacity payment, rehabilitation and treatment, and these are not recommenced until after the examination takes place.

If an appointment is made by a client or their legal representative and DVA do not use the information contained in the resultant report then there is no responsibility for DVA to pay for the appointment or the report.  If, on the other hand, the report is used or relied upon when making a decision about the claim (or to overturn the decision at reconsideration), then the cost of the appointment and report should be reimbursed to the client and/or their lawyer.  This needs to be considered on a case by case basis and if there is any doubt it should be discussed with a team leader or assistant director.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-50-incapacity-review-procedures/501-background

11.2 Relationship of Incapacity for work to 'Impairment'

Incapacity should not be confused with 'impairment', which is also defined by the SRCA, i.e. at S4(1).

Briefly, an impairment means damage or malfunction of the body or a bodily system. It includes psychiatric disabilities. An impairment may be temporary or permanent. Permanent impairments are not compensated by weekly payments, but by means of a lump sum under Sections 24 and 27 of the SRCA. In contrast, the meaning of 'incapacity' relates specifically to an inability to work. See 11.1 on the previous pages.

Some clients mistakenly assert that they should continue to be paid weekly payments while they continue to experience an impairment, however a bodily impairment and an incapacity for work are not one and the same. Damage to the body (or psychiatric effects) may of course lead to an incapacity for work in many cases. Nevertheless this is not necessarily so in all cases. Furthermore, 'incapacity' means an actual inability to work, (or work at the same level) and does not mean merely that work while possible is now more painful, more difficult, harder to obtain or less pleasant than before.

Capacity for work is clearly a separate issue to the persistence of the effects of an injury. Capacity or incapacity for work is demonstrated by medical and other criteria which are different to those used for measuring impairment. It is an assessed ability to engage in suitable employment under all the circumstances. If the persistent effects of an injury prevent employment in one field (perhaps the clients preference), but not in an alternative, equally remunerative suitable employment, it can not be said the client is 'incapacitated for all employment'.

In this respect, see 11.1 re: 'incapacitated for all work' and 32.2 re: 'suitable employment'.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-11-incapacity-work/112-relationship-incapacity-work-impairment

12.2 Criteria for Determining whether Employment is Suitable Employment

The definition of 'suitable employment' sets out four statutory criteria indicating whether particular employment is suitable:

(i)              the client's age, experience, training, language and other skills

(ii)              the client's suitability for rehabilitation or vocational retraining

(iii)              where employment is available in a place that would require the client to change his or her place of residence – whether it is reasonable to expect the client to change their place of residence

(iv)              Any other relevant matter.

A Delegate must 'have regard to' these criteria when determining whether employment is suitable for the particular client. In making this assessment, the following points should be noted:

  • regard must be paid to all four criteria – no one criteria alone can be determinative of the issue
  • regard must be paid to the client's individual circumstances as well as to any general rules designed to ensure consistency in decision-making in this complex area
  • the inclusion of 'any other relevant matter' as a criteria invites consideration of special circumstances and unusual features of each individual case.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-12-suitable-employment/122-criteria-determining-whether-employment-suitable-employment

12.2.1 Age, experience, training, language and other skills - para (i)

This criterion makes it necessary to have regard to the client's background. For example, if a RAAF General Hand was injured to the extent that their employment prospects were limited to sedentary clerical work, such work would be inappropriate if the client were illiterate. Similarly, employment as a cleaner may not be considered suitable employment for a RAAF pilot or a skilled Officer Engineer.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-12-suitable-employment/122-criteria-determining-whether-employment-suitable-employment/1221-age-experience-training-language-and-other-skills-para-i

12.2.2 Suitability for rehabilitation or vocational retraining - para (ii)

This criterion is generally guided by a formal rehabilitation assessment provided under S36 of the SRCA. The RAAF General Hand discussed in (i) above could be provided with literacy and office skills training as part of a rehabilitation program, and therefore become suitable for clerical work.

 

 

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-12-suitable-employment/122-criteria-determining-whether-employment-suitable-employment/1222-suitability-rehabilitation-or-vocational-retraining-para-ii

12.2.3 Reasonable requirement to change place of residence - para (iii)

If it is unreasonable for the client to move, the employment would not be suitable employment within the meaning of the SRCA. Factors affecting the reasonableness of a requirement to move could include:

  • continuity of school attendance for the client's children
  • existing or potential employment of the client's spouse
  • availability of family support
  • long-standing social networks
  • continuing contact with children after marital separation
  • availability of appropriate and affordable housing
  • access to medical services.

Where a client moves to an area of low employment (without a reasonable explanation such as family support or medical need), it may be appropriate to consider suitable employment in either the new location or the previous location.

This is discussed further at Part 20.18.

 

 

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-12-suitable-employment/122-criteria-determining-whether-employment-suitable-employment/1223-reasonable-requirement-change-place-residence-para-iii

Last amended

12.2.4 Any other relevant matter - para (iv)

This criterion is broadly stated and properly encompasses a wide variety of special circumstances in the client's case. The criterion certainly includes the client's medical restrictions, whether or not they arise out of the client's compensable condition. For example a client may not be considered suitable for work as a barperson if they suffer from asthma and would be required to work in smoke filled rooms, even though the asthma condition is not itself compensable.

This criterion does not specifically provide for consideration of the state of the labour market in making 'suitable employment' decisions. However, when considering a client's capacity for employment, it is appropriate to consider the effect of the client's injury on their ability to secure work on the open labour market.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-12-suitable-employment/122-criteria-determining-whether-employment-suitable-employment/1224-any-other-relevant-matter-para-iv

13.2 Distinguishing 'Former Employees' from others

The vast majority of eligible former employees were identified as such  in December 1988. Occasionally, however, special cases arise and must be considered by delegates.

Payment of incapacity benefits to former employees is discussed at 30.4 and 30.5 in this handbook.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-13-former-employee/132-distinguishing-former-employees-others

13.2.1 Former employees who cease payment and later re-establish entitlement

If a former employee ceased receiving incapacity payments (e.g. because of improvement in their condition) and subsequently re-establishes an entitlement to compensation, whether for the original injury or a fresh injury, they must continue to be treated as a former employee. The rule is:

'Once a former, always a former'

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-13-former-employee/132-distinguishing-former-employees-others/1321-former-employees-who-cease-payment-and-later-re-establish-entitlement

13.2.2 Benefits were suspended or wrongly cancelled as at 1 December 1988

If weekly compensation was suspended or cancelled as at 30 November 1988, and it was later reinstated (in respect of that day) by the Administrative Appeals Tribunal, or on a reconsideration, the client is to be treated as 'receiving compensation' for the purposes of the definition of former employee.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-13-former-employee/132-distinguishing-former-employees-others/1322-benefits-were-suspended-or-wrongly-cancelled-1-december-1988

13.2.3 Compensation of 'Formers' and effects of awards of damages

Under S99 of the 1971 Act, weekly compensation for incapacity was not payable to an employee who recovered lump sum damages (i.e. from a civil action) until the amount of compensation foregone equalled the amount of damages received. Where the lump sum was large, this suspension of compensation payments could extend for 10 – 20 years.

In these cases, when compensation once again becomes payable, the client may be entitled to be treated as a former employee.

The client should be treated as a former employee if investigation clearly shows that:

  • they retired from Commonwealth employment before 1 December 1988, and
  • their entitlement to payment of weekly compensation was suspended under S99 of the 1971 Act, before 1 December 1988, because of the recovery of damages.

Note: This does NOT include situations where compensation was redeemed by payment of a lump sum.

Before compensation is paid, evidence must be obtained which demonstrates that the compensation which would have been paid during the intervening period equals or exceeds the common law award. The following points should be noted:

  • contemporaneous medical evidence must support the proposition that the client was incapacitated and identify the period or periods of incapacity
  • medical expenses should be supported by receipts or accounts
  • rates of compensation should be calculated at the applicable rate under the legislation applying at the time for each period of proven incapacity
  • periods of incapacity before 1/12/1988 should be calculated under the 1971 Act (usually Ss45 or 46). Under the 1971 Act, generally the first 26 weeks of incapacity were paid at 100% of NWE and thereafter statutory rates applied.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-13-former-employee/132-distinguishing-former-employees-others/1323-compensation-formers-and-effects-awards-damages

14.2 Structure of NWE (Content of S8 and S9 of SRCA)

The calculation of NWE is governed by the joint action of Sections 8 and 9 of the SRCA, and the various elements of those sections can be tabulated as follows:

8(1)

determines how the NWE for ordinary hours of employment is to be calculated. In brief, S8(1) provides a formula which is, in effect:

(hours worked per week x rate paid per hour) + allowances also paid

with both rate and hours averaged from a 'relevant period' defined by S9

8(2)

supplements the NWE calculated at 8(1) by taking account of overtime the client was 'required to work' on a 'regular basis' during the same 'relevant period' as referred to in 8(1). Note that while full-time (permanent force) members of the ADF work long and irregular hours they do not work 'overtime'. This SRCA S8 provision therefore relates only to the civilian employment of part-time reservists.

S9

defines the term 'relevant period' used in Ss8(1) & (2). In short, Subsection 9(1) provides that the 'relevant period' is to be the latest 2 week period before the injury. Subsequently, Ss9(2), (3) & (4) make special provision where the clients pay rate changed during this period, or contained an interval without income etc.

8(3)

makes provision for the NWE of part-time employees, i.e. in the DVA context,

this = Reservists. In summary, the NWE of a part-time employee is to incorporate all other income received, not just the earnings from the Commonwealth. Thus, Subsection 8(3) is the authority to take reservists' civilian earnings into account when formulating NWE.

8(4)

provides that where it is impractical to calculate an NWE because of the short duration of employment during the relevant period, the delegate may set the NWE by reference to the earnings of another employee doing similar work. In effect, this permits the use of standard pay scales to set NWE, and the generality of service conditions and expectations to set the level of allowances.

8(5)

is similar to S8(4) in that it provides for an alternative method of determining NWE where that derived from the usual S9(1) 'relevant period' does not provide a fair representation (e.g. where the client has an irregularly variable income). In this case a new relevant period may be chosen 'as Comcare considers reasonable' i.e. at the delegates discretion.

8(6) & (7)

allow for changes ('updates') to the NWE after injury, i.e. by indexation of pay rates or through regular pay increments that would have occurred automatically had the client not been injured.

8(8)

provides that where a part-time employee has no other earnings (i.e. other than from that part-time employment with the Commonwealth) the delegate must calculate the NWE to incorporate an amount 'that the employee would have been able to earn at the date of injury'. In the DVA context, this applies only to reservists who do not have civilian employment.

8(9)–(9D)

specify procedures for the annual update of post-injury NWE for ex-employees i.e. discharged ADF members. The original pay rates used to calculate NWE are now adjusted by percentage in line with a specified Wage Cost Index, rather than varied in timing and amount with the rates applicable to the ADF (or the industrial award etc. relevant to the civilian employment of a reservist). These current procedures date from an amendment to the SRCA effective from 1 October 2001.

8(10)

sets an upper limit on the amount of NWE. In short, it may not exceed the amount which would have been earned had the client not been incapacitated.

Note: Procedures for calculation of NWE in accordance with the above sections, is described in more detail at Chapter 31.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-14-normal-weekly-earnings-nwe/142-structure-nwe-content-s8-and-s9-srca

15.2 What does 'Deeming Able-to-Earn' mean?

The abbreviation 'AE' means 'Able-to-Earn'.

While NWE is a representation of what the client could earn but for the injury, the AE is a representation of what he/she is capable of earning after that accident. Although NWE is a relatively fixed amount (although subject to annual indexation) the AE may be a more variable amount contingent upon the client's actual circumstances, i.e. including the degree of physical recovery from injury, retraining status etc. Thus, 'Ability to Earn' in suitable employment may vary from week to week with changes in his/her medical condition and progress of the rehabilitation program. Delegates are responsible for ensuring that the AE is an accurate reflection of ability to work rather than mere employment status.

Delegates may at the termination of a successful rehabilitation program deem a client AE an amount the delegate is satisfied the client could earn in suitable employment, even though the client in fact remains unemployed (i.e. unemployed for reasons other than the effects of the injury). This of course affects the amount of compensation for incapacity paid to the client under S19(2), S19(3) or S132A.

It is sometimes asserted by some clients or their representatives that the SRCA does not contain any explicit 'deeming' provisions and that the delegate therefore has no power to make any such determination about AE. That assertion is clearly not correct, as the necessary legislative authority lies with S19(4). Subsection19(4) quite clearly states that 'the amount per week that an employee is able to earn in suitable employment' is a matter for determination by the delegate.

Nevertheless, operation of S19(4) requires the delegate to take into account a wide range of issues in determining an AE.

Detailed discussion of S19(4) provisions, processes and the practical matter of determining AE are included in Chapter 20.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-15-able-earn-ae/152-what-does-deeming-able-earn-mean

20.2 No payment without liability

Delegates may only determine an entitlement to incapacity payments where the Commonwealth has already accepted liability for the injury that allegedly caused (or contributed to) that alleged incapacity.

In urgent cases where the liability claim and the request for incapacity payments are received together, the investigation of origins, duration, etc. of the incapacity may sometimes be completed before that in relation to liability. Regardless of the degree of urgency, under no circumstances is any incapacity payment – even one purporting to be an 'interim' payment – to be made prior to that determination of liability. Such payments are not lawful.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-20-investigating-entitlement-payment/202-no-payment-without-liability

21.2 Each Claim Must Be Separately Investigated

When using the Incapacity Calculator to determine a claim, the Delegate must:

  • ensure that only one claim is investigated at the same time
  • identify which of several claims (e.g. a 'back claim' or a separate 'neck claim') is currently under investigation.

Each of several claims should be separately investigated for a number of reasons:

  • liability may be accepted in relation to one claim, but not another
  • a new medical condition arising from a different event may restart the 45 week period in which incapacity compensation is paid at 100% of NWE
  • a new medical condition arising from the same event may found a separate claim for permanent impairment.

Note that it is important to differentiate between the existence of a new medical condition and an increase in symptomatology (e.g. increased pain from a cervical condition, increased volume and frequency of a tinnitus condition).

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-21-using-defcare-calculator/212-each-claim-must-be-separately-investigated

30.2 Overview - SRCA - client is receiving Superannuation

Content contained within Chapter 37 (37.1 to 37.12) has been removed as information has been replaced by content in Chapter 6.6 of the MRCA Policy Manual - Effect of Commonwealth superannuation on incapacity payments.

 

 

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-30-determining-rate-compensation-incapacity/302-overview-srca-client-receiving-superannuation

31.2 Calculation of NWE

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-31-normal-weekly-earnings-nwe/312-calculation-nwe

31.2.1 Calculation of core NWE: The basic formula

Subsection 8(1) of the SRCA says:

8(1) For the purposes of this Act, the normal weekly earnings of an employee (other than an employee referred to in Subsection (2)) before an injury shall be calculated in relation to the relevant period under the formula:

(NH x RP) + A

where:

NHis the average number of hours worked in each week by the employee in his or her employment during the relevant period.

RPis the employee's average hourly ordinary rate of pay during that period.

Ais the average amount of any allowance payable to the employee in each week in respect of his or her employment during the relevant period, other than an allowance payable in respect of special expenses incurred, or likely to be incurred, by the employee in respect to that employment.

This means that the NWE is normally to be set by the above-specified method of averaging income over a 'relevant period', to which are added the average amount of allowances also paid over that same 'relevant period'.

  • For discussion of 'relevant period' see 14.2 and 31.2.4.
  • For discussion of (NH x RP) – i.e. salary or earnings:
  • In relation to members/ex members of full-time ADF see 31.2.5 and 31.2.6.
  • In relation to members/ex members of the Reserve see 31.2.7 31.2.9.
  • In relation to cadets, see 31.2.10.
  • For a discussion of 'A' – i.e. allowances – see 31.11.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-31-normal-weekly-earnings-nwe/312-calculation-nwe/3121-calculation-core-nwe-basic-formula

31.2.2 Inclusion of Overtime in Reservists NWE

S8(2) also makes provision for inclusion of earnings from overtime into NWE, thus:

8(2) Where an employee is required to work overtime on a regular basis, the normal weekly earnings of the employee before an injury shall be the amount calculated in accordance with Subsection (1) plus an additional amount calculated in relation to the relevant period under the formula:

NH x OR

where:

NHis the average number of hours of overtime worked in each week by the employee in his or her employment during the relevant period, and

ORis the employee's average hourly overtime rate of pay during that period.

This provision has no application to full-time (permanent force) ADF members who, although they may work long or irregular hours, do not work formal 'overtime' within the meaning of any industrial award, i.e. they do not earn extra pay for extra hours.

However S8(2) may have application to the civilian employment of some Reserves members.

  • See 31.9 and 31.10 below for calculation of reservists NWE.
  • See also 14.2 and 31.2.4 for discussion of the term 'relevant period' used in 8(2).
'Required to work overtime on a regular basis'

It is clear from S8(2) that compensation is not automatically payable in respect to any occurrence of overtime in a 'relevant period'.

  • The delegate must be satisfied that the client was required to work that overtime.
  • The requirement to work overtime must have been part of a requirement to do so on a regular basis.

In the case of Re Zarb and Comcare (1997) the AAT:

'...formed the view that the word 'required' should be given its ordinary everyday meaning in the context in which it appears. In the Tribunal's opinion, the ordinary everyday meaning of 'required' is the imposition, by the employer in an authoritative fashion, of an obligation upon the employee to work overtime on a regular basis.'

Furthermore:

'The Tribunal is of the view that 'regular' means a uniform or symmetrical pattern over time which can be described as usual or customary. To establish whether the overtime of an employee occurs on a 'regular' basis, one would look to the overtime worked during the relevant period to determine whether the pattern is 'uniform or symmetrical'.

This means that clients who work overtime only occasionally or sporadically or seasonally or in response to crises etc. in the workplace should not have that overtime included in his/her NWE. Given that a 'relevant period' as defined by S9 means a period of only two weeks, delegates should expect that 'regular' means at least weekly, and of ongoing occurrence.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-31-normal-weekly-earnings-nwe/312-calculation-nwe/3122-inclusion-overtime-reservists-nwe

31.2.3 Calculation of ordinary time NWE for Reservists

NWE forms the basis for setting rates of compensation under the SRCA. It represents a deemed value in respect of the client's pre-injury earnings. This applies equally to part-time and full-time employees.

Reservists are part-time employees of the Commonwealth

Except rare occasions when called up for Full-Time Service (e.g. a deployment overseas), Reservists are part-time employees of the Commonwealth.

  • During call–up and full-time service their conditions of service and compensation entitlements become those of members of the permanent force, i.e. for that period only.
  • Note full-time service does not include participation in periodic multi-day courses and annual two-week training camps incidental to part-time service.
NWE of part-time employees = part-time earnings PLUS full-time (i.e. non-C'wth)

In respect to part-time service, Subsection 8(3) says:

8(3) Where an employee was, at the time of the injury, employed by the Commonwealth or a licensed corporation in part-time employment, any earnings for the employee from any other employment shall, for the purposes of this section, be treated as earnings of the employee from his or her employment with the Commonwealth or the licensed corporation.

Subsection 8(3) recognises that a person incapacitated for work by an injury in part-time employment is thereby incapacitated for all other (concurrent) employment also. The intent of Ss8(3) is therefore that the weekly compensation must encompass all earnings lost due to the injury.

Military/civilian earnings to be separately investigated.

This means that in addition to the payments for reserves attendance, a reservist's civilian earnings (i.e. earnings other than from the Commonwealth) must also be taken into account, i.e. a reservist's NWE is composite and consists of both:

  • military salary and allowances from Reserve employment, and
  • salary and allowances from civilian employment.

Determining Reservists' NWE therefore requires two separate investigations from a delegate.

  • 31.9 deals specifically with Reservists' military salary and allowances.
  • 31.10 deals only with Reservists' civilian salary and allowances.
Calculation

S8(1) requires that NWE for any employee be calculated as (NH x RP) + A where

NH = average weekly hours, RP = average pay rate and A = average allowances paid for the period. (see 31.2.1)

This means for reservists, where the earnings are split between two sources with differing rates, conditions and allowances, that the composite NWE be calculated as:

[military (NH x RP) + A] + [civilian (NH x RP) + A]

or, more succinctly:

[(average reserves earnings & allowances) + (average civilian earnings & allowances)]

  • The average reserves and civilian earnings/allowances are derived from applying the relevant strategy in 31.9 and 31.10, respectively.
  • 31.11 gives guidance as to which allowances may be included.

Where the client is required to work regular overtime in his/her civilian employment, the resultant aggregate NWE can be expressed as:

[(average reserves earning/allowances) + (average civilian earning/allowances + average overtime)]

Re: Tax status of Reserves earnings

Reserves payments (earnings) are tax-free. All other earnings, i.e. earnings from civilian employment, are subject to tax. However there is only one NWE. Both civilian and reserves earnings combined, form a single amount, only part of which is taxable. The Defcare Incapacity Calculator identifies what portion of any compensation paid is taxable and non-taxable.

That obviously adds some complication with respect to the actual calculation of the amount payable.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-31-normal-weekly-earnings-nwe/312-calculation-nwe/3123-calculation-ordinary-time-nwe-reservists

31.2.4 Identifying the 'Relevant Period' for establishing averages

The calculation of Normal Weekly Earnings (NWE) is dependent upon the concept of a 'relevant period'. This 'relevant period' is significant because it is the period of employment from which the client's pre-injury earnings are to be sampled and 'averaged' into an NWE.

'Relevant period' is a phrase defined by Subsection 4(1) to be 'the period calculated under Section 9'. Section 9 then says:

9(1) For the purposes of calculating the normal weekly earnings of an employee before an injury, a reference in Section 8 to the relevant period is, subject to this section, a reference to the latest period of 2 weeks before the date of the injury during which the employee was continuously employed by the Commonwealth or a licensed corporation.

This means that for ordinary purposes,

'relevant period' is the two-week period of employment preceding injury

Special circumstances (1) – S9 adjustments to 'relevant period'.

Subsections 9(2), (3) and (4) provide for a number of circumstances where the 2-week period referred to in 9(1) may not provide a fair representation of the client's NWE. These circumstances will be of only infrequent occurrence, and may therefore be summarised briefly as follows:

  • 9(2) provides that where the industrial agreement, award, law etc. governing the client's pay rates actually changed that rate during this same period, only the final (i.e. resulting) pay rate should be taken into account.
  • 9(3) operates where a pay rate variation occurs at or very near the end of the 'relevant period' and as a result, the operation of 9(2) reduces the NWE to an impractical or unrepresentative amount. In those cases, the delegate shall instead deem the pay variation to have applied from the beginning of the period and calculate the NWE on that basis.
  • 9(4) provides that, if for any reason a client was not paid for an interval during the 2 week 'relevant period', that interval without income should be disregarded (i.e. disregarded when calculating average income for NWE purposes).
Special circumstances (2) – S8 adjustments to 'relevant period'.

Subsection 8(4) says:

8(4) Where, because of the shortness of the relevant period, it is impractical to calculate the normal weekly earnings of an employee before an injury under Subsections (1) or (2), the normal weekly earnings of the employee before the date of injury shall be taken to be the normal weekly earnings before that date of another employee performing comparable work, being normal weekly earnings from employment by the Commonwealth or a licensed corporation and calculated under Subsection (1) or (2), as the case requires.

This means that where a 'relevant period' is of insufficient duration to produce a meaningful NWE in a particular case, a delegate may establish NWE by reference to the employer's generic pay scales, i.e. the normal weekly earnings of other employees 'performing comparable work'.

  • This method should of course also take account of the average level of allowance paid to similarly employed persons of that classification/rank.
  • Note that the strategies specified by Ss9(2), (3) and (4) relate only to changes to pay rates or from gaps in payment during that period. Subsection 8(4) on the other hand operates where the deficiency is due to the period's 'shortness'.

Furthermore, Subsection 8(5) says

8(5) Where because of the shortness of the relevant period, the normal weekly earnings as calculated in relation to the relevant period under Subsection (1) or (2) would not fairly represent the weekly rate at which the employee was being paid in respect of his or her employment before the injury, the normal weekly earnings before the date of the injury shall be calculated in relation to such other period as Comcare considers reasonable for the purpose of arriving at an amount that does fairly represent the weekly rate at which the employee was being so paid.

This subsection might be applied for example, in a case where a reservist had only irregular or fluctuating casual civilian employment from casual employment, of which the ordinary Ss8(1) period (i.e. the 2 weeks before injury) was not typical or not a fair representation. For instance, it may have been that the client was (uncharacteristically) unemployed during that fortnight, or alternatively was unusually busy, i.e. while generally unemployed was as an exception engaged in seasonal work (e.g. fruit picking) during that period. Where an injured employee is a shift worker the relevant period could be extended to cover the full range of shift rotations. This obviously gives a more accurate of an employees NWE over an appropriate period.

Note that S8(5) allows the delegate to calculate the NWE in accordance with whatever period is considered 'reasonable'. This provides delegates with a wide discretion. Obviously no specific guidance can cover all eventualities which may lead to one period rather than another being considered 'reasonable'. However delegates are reminded that the purpose of the NWE is establish a value of the client's pre-injury earnings, so that compensation can be paid for the degree to which this earning power has been lost. The discretion under S8(5) should be used to produce a just and moderate result.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-31-normal-weekly-earnings-nwe/312-calculation-nwe/3124-identifying-relevant-period-establishing-averages

31.2.5 NWE Summary by category of client - Full-time member (still serving)

1.NWE is (military salary for rank/pay-level) + (allowances rec'd), all at injury.

2.Using DocTracker, request information on the client's rank/pay group and nature/amount of any allowances payable (see 31.8) via the DVA Single Access Mechanism (SAM).

3.This request should confirm the duration of any disability allowances i.e. 'but for' the injury:

–note this does not apply to skill and qualification allowances.

4.Adjust NWE at point in time where the disability allowance would have ceased:

–i.e. when it would have ceased anyway, had the injury not happened.

5.Adjust NWE by applying new Military pay rates directly to current rank/pay group.

6.NWE is updated to the new rank/pay group with clients post injury promotions:

–but of course AE then rises also and will equal or exceed the lost pay levels.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-31-normal-weekly-earnings-nwe/312-calculation-nwe/3125-nwe-summary-category-client-full-time-member-still-serving

31.2.6 NWE Summary by category of client - Full-time member (Discharged)

1.NWE is [(military salary for rank/pay-level) + allowances] at discharge.

2.Using Doctracker, request confirmation of the client's salary and allowances at discharge (see 31.8).

3.Where the discharge is a medical discharge, use DocTracker to request confirmation of the date when any disability allowance cut short by the discharge, would have ceased anyway. (Note allowances for skills/qualifications are not affected i.e. have no end-date).

4.Calculate the NWE from the formula above, including any increases in the Military rates of pay/allowances on the date that they occurred, up to the date of discharge.

5.Reduce the NWE by the amount of any disability allowance included, from that point in time where the disability allowance would have ceased anyway (i.e. the date the allowance would have ceased even if the injury had not happened).

6.Adjust NWE by applying all of the Military pay/allowance scales which would have applied to the client, from the date of discharge to the last one prior to

1 October 2001.

7.Adjust NWE of ex-recruits, ex-officer cadets, ex-apprentices etc. in accordance with the incremental progression from the trainee classification to the lowest post-trainee classification (i.e. Pte Pay level 3 in the case of Army recruits or other service equivalents). Each increment should be implemented at the time it would have otherwise have come into effect 'but for' the injury.

8.Then, adjust NWE for Award and National Wage indexation increases after 1 October 2001 by annual application of the Wage Cost Index % for that year

(see 31.3.1 and 31.3.2).

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-31-normal-weekly-earnings-nwe/312-calculation-nwe/3126-nwe-summary-category-client-full-time-member-discharged

31.2.7 NWE Summary by category of client - Part-time Reservist (still serving)

1.NWE is:

(average reserves earnings & allowances) + (average civilian earnings & allowances)

at injury

  • see 31.9.2 to 31.9.4 for guidance re: averaging reserves income.
  • see all of 31.10 re: averaging civilian income.
  • Where using the method discussed at 31.10.2 for averaging civilian earnings (i.e. 'Option A'), delegates should obtain civilian pay slips or other documentary evidence to confirm the client's earnings or have reference to published civilian pay scales, whichever is appropriate.

2.If the client was also required to work regular overtime in civilian employment at the time of the injury the NWE then becomes:

(average reserves earning & allowance) + (average civilian earning & allowance + average overtime)

  • See 31.2.2 re: required to work regular overtime.

3.Alternatively, where the client had no civilian income (or only a small part-time civilian income) the NWE is (7 x Reserves daily rate for rank/pay level) at injury.

  • See 31.9.1 for more guidance on this method.

4.Adjust both the civilian and military components of the NWE according to the latest pay, allowance and overtime rates applicable to the client's a) military and b) civilian classification

  • i.e. as each pay/allowance increase becomes available to an uninjured person, it is applied directly to the injured client's NWE.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-31-normal-weekly-earnings-nwe/312-calculation-nwe/3127-nwe-summary-category-client-part-time-reservist-still-serving

31.2.8 NWE Summary by category of client - Part-time Reservist (Discharged)

1.NWE is :

(average reserves earnings & allowances) + (average civilian earnings & allowances)

at date of discharge

  • see 31.9.2 to 31.9.4 for guidance re: averaging reserves income
  • read all of 31.10 re: averaging civilian income
  • where using the averaging method in 31.10.2 for averaging civilian earnings (i.e. 'Option A'), delegates should obtain civilian pay slips or other documentary evidence to confirm the client's earnings or have reference to published civilian pay scales whichever is appropriate.

2.If the client was also required to work regular overtime, the NWE is:

(average reserves earning & allowance) + (average civilian earning & allowance + average overtime)

at discharge

3.Alternatively, where the client had no civilian income (or only a small part-time income), NWE = (7 x Reserves daily rate for rank/pay level) i.e. rate at discharge.

  • See 31.9.1 for more guidance on this method.

4.Adjust the NWE annually, after discharge, in line with the Wage Cost Index.

  • Actual amendments to former pay rates are no longer relevant.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-31-normal-weekly-earnings-nwe/312-calculation-nwe/3128-nwe-summary-category-client-part-time-reservist-discharged

31.2.9 NWE Summary by category of client - Reservist in Full-Time Service

The NWE of a Reservist injured whilst engaged in a period of full-time service – i.e. either call-up under the Defence Act or a contract of temporary full-time service – is determined in exactly the same way as for a permanent member of the full-time ADF.

Note, therefore, that the client's status was as a full-time employee of the ADF at the time of the injury and civilian earnings are not taken into account, i.e.:

  • neither while the period of full-time service runs its course
  • nor after return to part-time reserves status
  • nor after discharge from the Reserve.

Refer to 31.2.5 and 31.2.6 above for calculation of NWE for a full-time member.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-31-normal-weekly-earnings-nwe/312-calculation-nwe/3129-nwe-summary-category-client-reservist-full-time-service

31.2.10 NWE Summary by category of client - Cadets

Delegates should read 31.6. However, by way of summary:

Members of the Cadet are not paid but cadets with part-time incomes may have a NWE computed on the basis of that proven income.

Cadets with long term injuries which prevent entry into the work-force, should have their NWE deemed as a recruit in the single Service with which they were a cadet, and have that salary increased incrementally up to the Private, Pay level 3 or equivalent.

See 31.3.6 for advancement of NWE.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-31-normal-weekly-earnings-nwe/312-calculation-nwe/31210-nwe-summary-category-client-cadets

32.2 Ability to Earn in Suitable Employment - S19(4)

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-32-ae-and-s194/322-ability-earn-suitable-employment-s194

32.2.1 Summary - The nature of Suitable Employment

(Note: discussed at chapter 12)

'Suitable employment' is defined in S4(1) of the SRCA.

Section 40 of the SRCA is also relevant in that it places a duty on the employer to 'take all reasonable steps to provide the employee with suitable employment or to assist the employee to find such employment'. Section 40 infers an obligation on the Commonwealth even though the employee may no longer be employed by the Commonwealth.

The application of this definition of suitable employment is discussed at length at chapter 12.

Note that the issue of what constitutes suitable employment in a particular case, should be resolved before considering the question of ability to earn.

Source URL: https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/incapacity-handbook/ch-32-ae-and-s194/322-ability-earn-suitable-employment-s194/3221-summary-nature-suitable-employment

32.2.2 AE Client is actually in employment - S19(4)(a)

Section 19(4)(a) of the SRCA establishes the amount per week that a client is able to earn in suitable employment (AE) where the client is in employment (including self-employment) during that week. Any amount that a client actually earns by their own labour is to be used in the S19(2) and 19(3) formulae, i.e. the amount that a client earns in employment in any week is in most cases, his or her AE for that week.

Note that S19(4)(a) makes no reference to 'suitable employment'. There is no need to accept some earnings and discount others. If the client is actually earning the income from his/her own labour, it may be used as the AE.

To make a decision about AE on the basis of actual earnings, a delegate needs:

  • Pay slips (or similar documents) to establish hours worked and amount received.
  • Medical certificates (medical capacity for work should = hours worked).
  • Liaison with the Rehab Coordinator re: past programs and outcomes.

Whether the actual earnings do in fact represent the AE is a matter for the delegate