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1.9 Operation of Chapter 19 of GARP V and interactions with offsetting
Chapter 20 vs Chapter 19
Chapter 20 of the GARP is designed to specifically cover apportionment of the impairment when it is necessary for a given accepted condition, to compare an impairment derived from one table with an impairment derived from another table. and when two or more accepted conditions contribute to the impairment ratings from either table.
Although both Chapters 19 and 20 refer to apportionment, Chapter 19 should be used to identify partially contributing impairment in offsetting cases (as would be applied for impairment from non-accepted conditions).
Application of Chapter 19
If a person is being assessed for an initial payment of disability pension, or an application for increase, there is a requirement contained within chapter 19 of GARP that any contribution to an impairment or incapacity that is attributable to another source (not entirely due to the effects of the accepted condition/s), that incapacity must be “apportioned off”, so that disability pension is only paid for the portion of the incapacity related to the VEA conditions.
The operation of this chapter of GARP is imperative to the appropriate and lawful application of the offsetting provisions. If a veteran is suffering the same incapacity from more than one condition, and a portion of that incapacity is related to a non-accepted condition, the removal of that partially-contributing impairment also removes the requirement to offset any compensation that may have been received for that incapacity.
This chapter requires that if an impairment assessment for a veteran includes a contribution/s from a non-accepted condition (that being a condition that is not compensable under the VEA), then the delegate is required to use the available medical evidence to assess the relative contribution of that non-accepted condition, to reduce the impairment rating (and the resultant disability pension) accordingly.
The application of chapter 19 in the initial disability pension assessment is not undertaken by an offsetting delegate and is the responsibility of the claims assessor, based on relevant medical evidence and opinion. If applied in the right circumstances, the application of this chapter will remove the requirement to apply any compensation offsetting, as the person will not be receiving disability pension for the incapacity that the other source of compensation was received for. This ensures that the Department does not affect the person's pension entitlement more than once.
An example of this could be where a veteran has an accepted knee condition under the VEA, but received a WorkCover lump sum for a thigh injury a few years back. The two injuries share the same incapacity (loss of function in the leg), however, the overall incapacity rating assessed under Chapter 3 of GARP could be reduced using Chapter 19, to ensure that the person only receives for the portion of the incapacity related to their knee injury. If this is applied and the pension level reduced before initial payment, then there is no requirement to offset the lump sum received for the thigh, as the person is not receiving pension for that portion of the incapacity. This must always be based on relevant medical evidence and opinion.
The application of this chapter is more difficult when the person has dual eligibility under the VEA and the DRCA for the same condition and has received a DRCA PI lump sum. The DRCA compensation has been received for the same incapacity as the disability pension, so therefore Chapter 19 could not logically be applied, as there is no portion of the incapacity that can be separated. In these situations, the only result is to apply the offsetting provisions.
Offsetting delegates must be mindful to analyse any referred cases that may potentially have Chapter 19 of GARP applied in the initial pension assessment, and if the apportioning off of the relevant contribution has not occurred, that the case is referred for review and recalculation to ensure that offsetting is not being applied in a case where Chapter 19 can remove the requirement to do so.
Guide to the Assessment of Rates of Veterans' Pensions.
Veterans' Entitlements Act 1986.
Veterans' Entitlements Act 1986.
Safety, Rehabilitation and Compensation Act 1988