This question is asked to determine whether amendments to the SRC Act relating to payment of compensation and redemption for persons aged over 63 have effect. The amendments, insofar as they affect Defence Force personnel, commenced on 1 October 2001 and have effect in relation to members and clients:
- who are injured after 1 October 2001; or
- who had reached 63 and were receiving, or were eligible to apply for, incapacity compensation on 1 October 2001.
(see the Application clause in item 25 in Part 5 of Schedule 2 to the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2001.)
The amendments are beneficial in that they provide for up to 104 weeks of incapacity payment after injury even if a person turns 65 during that period and would otherwise lose their entitlement to compensation at age 65 (s 23(1)). Amendments to s 30 provide for an adjustment to redemption amounts to reflect the additional entitlement.
The impact of these provisions on MCRS claims will almost exclusively involve diseases where the date of medical treatment is taken to be the date of injury (and therefore may be many years after discharge).
Entitlement to 104 weeks of incapacity payments (s 23(1),(1A))
Section 23(1A) of the SRC Act makes special provision for employees who are injured after they have reached 63 years of age:
23(1)Compensation is not payable under section 19, 20, 21, 21A or 22 to an employee who has reached 65.
23(1A)However, if an employee who has reached 63 suffers an injury (whether before or after the commencement of this subsection):
(a)subsection (1) does not apply; and
(b)compensation is payable under section 19, 20, 21, 21A or 22 in respect of the injury:
(i)to the extent that this Act (other than subsection (1)) allows; and
(ii)for a maximum of 104 weeks (whether consecutive or not) during which the employee is incapacitated.
Section 23(1A) initially applied only to APS employees, with effect from 5 December 1999, however it was extended to all employees covered by the SRC Act by Part 5 of Schedule 2 to the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2000.:
Effect on redemption under s 30
The amount payable in a redemption is affected by a new definition of “number of days” in s 30(3) which takes into account the fact that entitlement to incapacity compensation may extend beyond age 65 where the employee is injured at age 63 or over:
30(1)Where:
(a)Comcare is liable to make weekly payments under section 19, 20, 21 or 21A to an employee in respect of an injury resulting in an incapacity;
(b)the amount of those payments is $50 per week or less; and
(c)Comcare is satisfied that the degree of the employee's incapacity is unlikely to change;
Comcare shall make a determination that its liability to make further payments to the employee under that section be redeemed by the payment to the employee of a lump sum.
30(2)The amount of the lump sum is the amount worked out using the formula:
52 X amount per week X [(specified number + 1)n - 1].
specified number X [(specified number + 1)n]
30(3)For the purposes of subsection (2):
“amount per week” means the amount per week payable to the employee under section 19, 20, 21 or 21A, as the case may be, at the date of the determination;
“specified number” means the number specified by the Minister;
“n” means the number worked out using the formula:
number of days
365
where:
“number of days” means the number of days in the period beginning on the day after the day on which the determination is made and ending:
(a)if the employee is injured before reaching 63 years of age - on the day immediately before the day on which the employee reaches 65 years of age; and
(b)if the employee is injured on or after reaching 63 years of age – on the day immediately before the employee would cease to be entitled to receive compensation under section 19, 20, 21 or 21A of this Act.
30(4)The Minister may, from time to time, by notice in writing, specify a number (being a specification of the number in decimal notation) for the purposes of subsection (2).