6.3 Above General Rate Disability Compensation Payments - Several Accepted Conditions

In calculating a notional assessment in respect of an AGR Disability Compensation Payment, all aspects of the AGR determination must be taken into account.  It is important to determine whether the incapacity from the compensable condition has played a role in the veteran ceasing to engage in their normal remunerative work. Notional assessments for offsetting purposes have to take into account all of the rules around Special Rate eligibility, including the alone test. The question to pose is - Would the veteran/member still have been granted the AGR pension if the incapacity from the compensable condition was not included in the assessment?  In answering this question consider that the veteran is suffering from the incapacity, but it is the result of a non-accepted condition.

Section 24(1)(a) - If on completing the general rate notional assessment, it is found the veteran/member would not be assessed as being eligible for at least 70% of the General Rate, the answer to the above question would be NO.  The notional assessment would be the special rate less the General Rate assessed excluding the compensable condition.  For example, Special Rate less 60% rate.

Section 24(1) (b) or (c) These tests must also be applied if the veteran/member continues to satisfy s24(1)(a) ie assessed as eligible for at least 70% of the General Rate, excluding the compensable condition.

If it can be shown that the offset condition did not contribute in a real way to the person's incapacity, then the notional assessment is NIL. However, where a condition that contributed to the inability to work is offset, the AGR portion is subject to offsetting. This is the case even where the remaining conditions would, in and of themselves, incapacitate the client.

If it is concluded that the rate of pension would not be payable at the AGR, the notional assessment is the AGR less the General Rate assessed under GARP, excluding the compensable condition.  For example, Special Rate less 90% rate.

The following steps demonstrate the method of establishing the notional assessment for a case where pension is assessed at the Special Rate.

Scenarios

One

A client has multiple conditions accepted under the VEA. Two of those conditions, PTSD and a chronic back condition, combine to incapacitate the client. The medical evidence is that neither one of these conditions would, in and of themselves, incapacitate the client, but together they operate to make the client unfit for remunerative work. The client subsequently receives a third party lump sum for the PTSD. As the evidence shows that the PTSD is a contributor to the client’s inability to work, they are no longer eligible for the Special Rate, and should be offset accordingly.

Two

A client has multiple conditions accepted under the VEA. Two of those conditions, PTSD and a chronic back condition are each, in and of themselves, enough to fully incapacitate the client. That is to say, even if the client did not have PTSD, the back condition would be enough to fully incapacitate the client. The client subsequently receives a third party lump sum for the PTSD. As the evidence shows that the PTSD is a contributor to the client’s inability to work, they are no longer eligible for the Special Rate, and should be offset accordingly. This may seem counter-intuitive, as the client would still be incapacitated for work if the PTSD did not exist. However, the test is not whether the client would still be eligible for the AGR Disability Compensation Payment if the compensated condition did not exist. Rather, the test is whether the client would still be entitled to the AGR pension if the compensated condition was a non-accepted condition.

The rules of the Special rate operate to say that, for a client to be eligible, they must be incapacitated for work due to their VEA accepted conditions alone. This alone test operates legally to exclude from compensation those who are have a non-accepted condition which also incapacitates them for work. As such, a client in this situation must be offset as in 1. This ensures that a client is not doubly compensated for their incapacities. The same principle would also apply to the above scenarios and outcomes had the person received incapacity payments under the MRCA or DRCA for PTSD.

Three

A client has the condition ‘bilateral shin splints’ accepted, first under the DRCA then subsequently under the VEA. Before the condition was accepted under the VEA, the client commenced to be paid incapacity payments for this condition under DRCA. When the condition was accepted under the VEA, it was accepted alongside the conditions of PTSD and lumbar spondylosis. The VEA assessment indicates that the shin splints do not contribute to the incapacity for work. The DRCA assessment includes medical evidence that the shin splints condition is still contributing to an incapacity for work.

In this situation, there is an inconsistency with the medical evidence that must be remedied. In this scenario the medical evidence needs to be reconciled with one of two outcomes;

1. If the most applicable medical evidence shows that the client’s shin splints no longer contribute to their incapacity for work, then the case should be referred to the incapacity payments team to re-examine the basis on which incapacity payments are paid
2. If the most applicable medical evidence shows that the client’s shin splints do contribute to their incapacity for work, then VEA offsetting should apply to this condition resulting in them no longer being eligible for the Special Rate.