Same injury
In deciding whether the recovery and barring provisions apply to a veteran under section 48, consideration must be given to whether the conditions for which compensation has been claimed under the DRCA and through another source relate to the same injury.
- Section 48 contains provisions to recover compensation where a veteran receives a damages award in respect of the same injury or death for which compensation is also payable (or has been paid) under the DRCA, and
- Sets up a bar for any further compensation to be paid under DRCA with respect to the same injury or death.
Under MRCA, the analogous provisions are enlivened where the veteran receives third party compensation for the same ‘cause of action’. For more information about ‘cause of action’ under the MRCA please refer to Chapter 4.5.4 of the MRCA Policy Manual.
Whilst same ‘injury’ under DRCA and same ‘cause of action’ under MRCA are different phrases, there is a strong basis to argue that the recovery provisions under both Acts ultimately apply to a service-related injury. It is on this basis, the provisions should be applied in the same way. Therefore, equivalent to how the MRCA provisions apply, considering the same injury for the purpose of the DRCA recovery provisions requires not only a commonality of the diagnosable condition but also a commonality of the inciting event or events which gave rise to the condition.
This approach is supported from both a policy and legal perspective of statutory interpretation. Moreover, alignment of the DRCA and MRCA recovery provisions ensures consistent outcomes for veterans across the Acts.
Example 1
A veteran receives compensation under DRCA for major depressive disorder which arose due to the chronic pain suffered as a result of a knee injury. The veteran later recovers damages from a third party for a psychiatric injury as a result of the physical and emotional abuse suffered whilst a primary school student. In this case the delegate may determine that the compensation received under DRCA is not for the same injury as that which damages were awarded by the third party. This is because even though the conditions are similar diagnostically, the evidence clearly establishes the conditions do not share a common inciting event or cause. As a result, they are not the same injury for the purposes of DRCA and the recovery provisions under section 48 do not apply in this case.
Example 2
A veteran claims compensation under DRCA for osteoarthritis of the right knee which arose following a motor vehicle accident on the way home from work. The veteran later recovers damages from a third party insurer for osteoarthritis of the right knee as a result of the same motor vehicle accident. As there is both a commonality of the diagnosable condition and the event which gave rise to the condition, the delegate may determine in this case that the compensation received under DRCA is for the same injury and therefore the recovery provisions under section 48 do apply. The veteran is required to pay back the lesser of either the amount of compensation paid under the DRCA, or, the amount of damages recovered by the third party, and, is no longer entitled to compensation for that injury under DRCA.
Example 3
A veteran claims compensation under DRCA for basal cell carcinoma which arose due to service-related sun exposure. The veteran later recovers damages from a third party for melanoma which arose due to sun exposure during civilian employment. The relevant medical evidence confirms that both basal cell carcinoma and melanoma are separate and distinct conditions from one another. In this case the delegate may determine that the compensation received under DRCA is not for the same injury, because even though the conditions share a common cause or inciting event (sun exposure), the evidence clearly establishes the conditions are different medical conditions and therefore different injuries for the purposes of the recovery provisions under section 48 of DRCA.