CM6719 Application of Chapter 19 of the Guide to Determining the Rates of Veterans' Pensions

Approved by the Commission on 28 May 2012

REPATRIATION COMMISSION GUIDELINES

Application of Chapter 19 of the Guide to the Assessment of Rates of Veterans' Pensions, 5th Edition for the purposes of Disability Pension calculation and Compensation Offsetting

Read Chapter 19 of the Guide to the Assessment of Rates of Veterans' Pensions, 5 — th Edition here
(note: links to CCPS Research Library)

Purpose and Limitations

1. This Guideline outlines the application of Chapter 19 (“Partially Contributing Impairment”) of the Guide to the Assessment of Rates of Veterans' Pensions, 5th Edition (GARP V) and its interaction with the compensation offsetting provisions of the Veterans' Entitlements Act 1986 (VEA).  This application and interaction is central to the proper application of the Disability Pension provisions and compensation offsetting provisions of the VEA and the potential effect that impairment assessments under GARP V can have on an offset rate of Disability Pension.

2. These Guidelines are not directives and should not be used as a substitute for the proper application of the law, the instruction contained within applicable Legislative Instruments, and judicial precedent to the particular circumstances of each case.

3. It is important to understand at the outset that either Chapter 19 of GARP V or the broader compensation offsetting procedures will apply to an individual case. Chapter 19 and compensation offsetting cannot be applied to offset the same incapacity, as this would result in double offsetting.

Circumstances in which Offsetting Applies under the VEA

4. Compensation offsetting under the VEA is applied when a person receives a pension for incapacity from an accepted injury, disease or for a death, but also receives, or has received, compensation from another source for the same incapacity from that injury or disease, or another injury or disease, or for the death.

5. When this occurs, the VEA requires that either the ongoing periodic payment be offset dollar-for-dollar against the applicable pension, or if the compensation is in the form of a lump sum, that it be converted to an Actuary-advised fortnightly equivalent and offset against the pension for life.  More information about the circumstances and processes for offsetting can be obtained in the compensation offsetting chapters of the Compensation and Support libraries and Guide to Policies and Procedures contained within the Consolidated Library of Information and Knowledge (CLIK).

6. Offsetting of Disability Pension is required when the other compensation is for the same incapacity.  This incapacity is measured by the impairment tables within GARP V, but must be focused on the definition of incapacity in section 5D of the VEA:

“...is a reference to the effects of that injury or disease and not a reference to the injury or disease itself.”

7. Therefore, when Disability Pension is being paid for incapacity from an accepted injury or disease (condition), and the person receives other compensation for the same incapacity in respect of a non-accepted injury or disease (condition), then either Chapter 19 will be applied to reduce their pension payable in the first instance, or the offsetting provisions will apply.

Circumstances in which Chapter 19 of GARP V applies

8. In all Disability Pension assessments, impairment from condition/s is measured using GARP V and results in an applicable impairment rating.  This impairment rating assesses the incapacity of the veteran from their condition/s and is expressed as a number that represents the percentage of impairment.

9. This calculation works quite simply if there is only one condition involved. However, if the impairment rating includes both accepted and non-accepted conditions (as their incapacity is measured the same way under GARP V), the effect of each must be separated before Disability Pension can be paid. The process for establishing these components is contained with Chapter 19 of GARP V.

10. Essentially, a condition that has been accepted under the VEA will attract a level of medical impairment.  If the person also has a non-accepted condition (not compensable under the VEA) then an impairment rating can sometimes include that condition, due to the effect on the person (the incapacity).  In these situations, Chapter 19 must be applied.

Application of Chapter 19 at primary claims level

11. Medical opinion should be sought and used to determine the relative contribution of an accepted condition and a non-accepted condition to the impairment. Chapter 19 of GARP V is used to “apportion” the contribution from the accepted condition.  An impairment rating reflecting only the contribution from the accepted condition will result.

12. Where Chapter 19 of GARP V has been applied to exclude the incapacity from a non-accepted condition, for which other compensation has been received, from the impairment assessment, the offsetting provisions of the VEA cannot be applied in respect of that compensation payment.

13. The requirement to apply Chapter 19 and the process to be undertaken is contained within GARP V itself (copy at Attachment A).  Primary claims assessors must apply this Chapter of GARP to all pension assessments where the impairment is not due solely to the effects of accepted conditions.  This will be based on sound medical evidence, requested at the time of the initial GARP V assessments.

14. This reduction means that the compensation offsetting provisions do not apply, as the incapacity resulting from the other condition has already been discounted through a lower impairment rating.  The proper application of the Chapter will ensure that offsetting is only applied where disability pension and other compensation are received for the same incapacity.

Delegate responsibilities

15. Primary claims assessors are required by law to apply Chapter 19 of GARP V to all pension assessments where impairment from a non-accepted condition contributes to the impairment.  This ensures that Disability Pension is not paid for incapacity that is not service-related, and at the same time removes the requirement to apply offsetting provisions when they are not relevant.

16. Similarly, during an assessment to calculate an offset amount to be held against a Disability Pension, offsetting delegates should use the construct within Chapter 19 of GARP V to allow for consistent and accurate calculation of contribution to a disability pension assessment, so only the relevant portion of a pension is offset.  More information of this application can be found in the Offsetting Guide to Policies and Procedures contained within CLIK.

*Note - GARP V is a legislative instrument empowered by section 29 of the VEA.

Attachment A

Read Chapter 19 of the Guide to the Assessment of Rates of Veterans' Pensions, 5 — th Edition here
(note: links to CCPS Research Library)