B27/1994 Determination of Compensation Claims following Royal Assent to the Legislation arising from the 1994-95 Budget.

DATE OF ISSUE:  6 JULY 1994

Determination of Compensation Claims following Royal Assent to the Legislation arising from the 1994-95 Budget.

Purpose

The purpose of this instruction is to outline the procedures to be followed by Branch Office staff when:

• determining compensation claims following Royal Assent to the VEA arising from the 1994 Budget changes; and

• receiving submissions to the Repatriation Medical Authority (RMA).

Background

The RMA was created because it has become apparent that lay tribunals do not deal with medical-scientific issues consistently and that the adversarial approach to fact finding applied in administrative tribunals is inappropriate for determining medical-scientific issues that call for detailed technical knowledge.

The RMA will provide the appropriate forum for the resolution of technical medical-scientific issues and its formal deliberations will be binding on all levels of the determining system. It will be an independent body consisting of five eminent medical specialists. The members will be appointed by the Minister following consultation with the ex-service community.

The RMA will prepare Statements of Principles (SOPs) based on sound medical-scientific evidence that will exclusively state what factors, when related to service, must exist to establish a causal connection between diseases, injuries or death and service.

SOPs prepared by the RMA, will be disallowable legislative instruments that will be binding on the Repatriation Commission. the Veterans' Review Board. the Administrative Appeals Tribunal and the Courts.

Following Royal Assent on 30 June 1994, compensation claims for injury, disease or death lodged on or after 1 June 1994 shall only be determined in accordance with a SOP issued by the RMA. In certain circumstances, the Repatriation Commission can make a favourable determination on issues of medical causation regarding a specified group of veterans but only after the question has been addressed by the RMA.

Although the law provides for the Repatriation Commission to determine a claim in the absence of a SOP, the Commission has declared that it does not wish to use this provision except for unusual or rare circumstances such as urgent claims or claims from veterans who are terminally ill. The Commission has also decided that it will exercise this power to accept, but not to reject, claims.

Claims will still have to be determined on the basis of either a "reasonable hypothesis" or "reasonable satisfaction" standard of proof, but with questions of medical causation to be determined by the RMA.

A person who is eligible to make a claim, or an organisation representing veterans, may ask the RMA to conduct an investigation to issue a SOP or review a SOP. If that person or organisation is dissatisfied with the decision of the RMA, that person or organisation may seek review by a Specialist Medical Review Council (SMRC).

Compensation Claims Processing Procedures.

Claims lodged prior to 1 June 1994

Any claim lodged prior to 1 June 1994 should be determined using the SOPs applicable as of 31 May 1994 in accordance with the previously issued Departmental instruction B08/93 (5 February 1993).

CCPS will provide guidance based on the relevant SOP.

Claims lodged on or after 1 June 1994

Any claim lodged on or after 1 June 1994 must be determined in accordance with a SOP issued by the RMA. This also means that if a claim raises a contention, the contention may only be accepted if is covered by the SOP. Advice letters are to include advice of the right to make a submission to the RMA seeking creation of a new SOP or review of a current RMA SOP.

Once the RMA has issued a SOP, it will be immediately issued to Branch Offices with an advice as to the differences (if any) between it and any previous SOP. Should a claimed condition propagate to another condition for which no RMA SOP is in existence, then a determination on the claimed condition may be made provided that the determination leads to an acceptance of the claimed condition.

Because it will not be possible to immediately include a RMA SOP within CCPS, delegates must make themselves aware of the RMA SOP and any previous SOP and any differences that might exist. In general, a minimum of three weeks could be expected between the issue of an RMA SOP and the release of a new version of CCPS in which it is included.

Central Office will examine the feasibility of providing a reference facility that will allow a delegate to identify whether an RMA SOP exists. Such a facility would be updated overnight.

The absence of a RMA SOP should not preclude any investigation of the case commencing or the gathering of any other relevant material. Guidance as to the investigative paths to be pursued should be taken from a SOP that existed on 31 May and where CCPS applies, users should utilise the guidance provided.

Delegates using CCPS to determine a case may be required to use the override function to accept a condition where the CCPS SOP has not been updated to correspond with the RMA SOP. Conversely, should the RMA SOP no longer accept a contention that was previously available within the CCPS SOP, then provided the claimed condition is not acceptable under any other contention, a delegate should ensure that the claim is rejected and manually adjust the reasons for decision to take into account the RMA SOP.

It may also be necessary to make greater use of the PART CLAIM facility and split claims where there is a combination of SOP and non SOP covered conditions.

Where no RMA SOP exists, claims should be progressed as far as possible up to, but not including, the decision stage. It should be noted, however, that once an RMA SOP has been issued, it may then be necessary to collect additional information in order to finalise the claim.

Submissions to the RMA - formal and informal

Submissions to the RMA for a new or revised SOP can be received at any office of the Department and must be forwarded to the RMA within 28 days of receipt.

Where such submissions are clearly identifiable or they can be construed as such, they should be referred to the Manager, Compensation who will then co-ordinate their referral to the Compensation and Review Branch in Central Office by advising the Compensation and Review Branch via Mail (C-B-AD-52) and fax (06 2894744), and by subsequently forwarding the original submission to the Compensation and Review Branch in Central Office.

In some instances, there will not be a formal submission, but a claim may contain information in support of a contention that is not covered by a SOP. Where, on the basis of the supporting information, the material appears to be justifiable as a submission, the claim should be progressed as normal. The new evidence or data should be immediately notified to the Manager Compensation who will then contact the claimant and ask whether a submission was intended. If that is the case, then the process will proceed as above.

Decisions of the Specialist Medical Review Council.

If the SMRC decides that the RMA should amend or make a SOP, it must notify its decision in the Gazette. Once the RMA makes the amendment or new SOP, it will have retrospective effect to the date of the SMRC's Gazette notice. Therefore, once the SMRC has published a notice in the Gazette, any undetermined claims dealing with that type of injury, disease or death must not proceed to determination until the RMA has made the amendment or new SOP. Branch Offices will be advised of any such Gazette notices.

Monitoring of the submission and the effect of RMA SOPs

Attributes will be set automatically through CCPS that identify claims lodged on or after 1 June 1994.

The Compensation Quality Assurance strategy will be modified to include monitoring of compliance with RMA SOPs, consistency of decisions, ex-service organisation and client acceptance and sub-program expenditure outcomes.

Monitoring will be a joint function of the Branches and the National Quality Assurance and Monitoring Unit.

Urgent Claims

Where, in the opinion of the State Program Manager (Benefits), a claim is received from a veteran who is terminally ill or the claim requires urgent processing and no RMA SOP is in existence, then a determination of that claim under 120A(4) or 120B(4) should be made provided that determination leads to an acceptance of the claimed condition.

Instructions for Medical Officers

Medical Officers will continue to be involved in assessment matters as in the past and the parallel changes associated with the development of GARP 4 will not be affected by the creation of the RMA or the SMRC.

As to questions of the causality of disease, injury or death, the responsibility of the medical officers will be similar to their responsibility for cases under existing SOPs. As there will not be any cases determined that are not covered by a SOP, excepting those determined under Section 120A(4) or 120B(4), medical opinions will not be sought on the causation of the disease from the medical officer.

Should medical officers become aware of postulated grounds for possible acceptance of diseases as war or defence caused that do not appear to be addressed under the existing relevant SOP, this should be communicated with all appropriate supporting papers, to the Compensation and Review Branch in Central Office as soon as possible.

A W ASHFORD

NATIONAL PROGRAM DIRECTOR

BENEFITS