The Liability Handbook is about the receipt of new claims and the determination of 'liability' for compensation. This is where you, as Delegate, decide whether the Commonwealth will accept or refuse responsibility for causing (or contributing to) the employee's death, injury or disease.
'Liability', is the first and most critical decision to be made in managing a case. 'Liability' in this context means the Commonwealth's legal liability under S14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRCA) to pay any compensation of any kind to an individual. Concession of 'liability' does not of itself grant any particular financial benefit. Rather it is a precondition, the gateway to the range of benefits provided by the legislation, each of which has its own additional criteria for payment.
In short, nothing can be paid unless liability has first been accepted. To make any payment of compensation without acceptance of liability is unlawful and may result in disciplinary action.
As outlined in Chapter 2, claims can still be made today for injuries suffered prior to the commencement of the SRCA, i.e. under any of the three workers compensation Acts which have applied to ADF members since 1949. The criteria for acceptance of liability differ slightly under each Act but are sufficiently similar for this brief summary to deal with them in a generic fashion. The differences – which may be critical in particular cases – are dealt with at Chapters 6.14 and 6.15.
An application for compensation must be in writing and in a form specified by the SRCA, currently the D2020 claim form.
The claimant must be an 'employee' within the meaning of S5 of the SRCA. For RCG purposes, this means members of the ADF including reservists, cadets and volunteer instructors of cadets. There are some other categories defined in S5(6A) of the SRCA.
Worker's compensation coverage extends from the moment of enlistment because, unlike the provisions of the VEA, no specific period of service in a designated operational zone is required.
Peacetime service within Australia and participation in overseas peacekeeping missions has had workers compensation coverage since 1949. However, operational/warlike service prior to 7 April 1994 (e.g. WW2, Korea, Vietnam) is not covered by any of the workers compensation Acts. Prior to that date, 'operational service' – i.e. actual hostilities – is covered only under the VEA.
On 7 April 1994, the Military Compensation Act 1994 amended the SRCA so that it now covers operational or 'war caused' injuries occurring after 7 April 1994. Note that the SRCA does not provide for separate or relaxed criteria for liability for alleged 'operational' injuries, as the VEA does.
Any injuries or diseases that have arisen as a result of service on or after 1 July 2004 are covered by the Military Rehabilitation and Compensation Act 2004 (MRCA). However, it is important to note that under the SR — CA the 'date of injury' for a disease is often the date of first medical treatment or diagnosis which may well be after July 2004. To determine which Act is appropriate, the critical question is to ask what was the date/period of service rendered that gave rise to the injury/disease? The appropriate Act is determined by the service rendered and not necessarily the date of diagnosis of the injury or disease (noting sometimes they may be the same).
When the MRCA was introduced, important transitional provisions relating to the interaction between the SRCA, MRCA and VEA were enacted in the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004 (the CTPA). These transitional provisions are dealt with in Chapter 12 of the M — RCA Manual and should be referred to in addition to this handbook.
Liability may be accepted only in respect of properly diagnosed injuries or diseases. Vague non-medical terms such as 'sore back' or 'injured elbow' are not sufficient for acceptance of liability, nor are symptoms (e.g. pain alone) without a diagnosed cause. Furthermore, chemical or radiation exposure per se is not compensable. Liability relates only to the medically diagnosed consequence (if any) of such exposure.
This matter of medical diagnosis is most often (but not always) resolved by reference to the employee's ADF medical file. Failing that, the Delegate has power under S57 of the SRCA to order a medical examination for this purpose. Should the claimant have a treating doctor or specialist then in the first instance that medical practitioner should be asked to provide information to assist in the decision making process.
If that is not possible, an appropriate doctor should be approached for opinion. While the final choice rests with the Delegate, discussion with the claimant as to who will provide the medical opinion is appropriate.
The core of the liability determination process is a judgement by you as Delegate, as to whether the employee's proven injury 'arose out of or in the course of' Australian Defence Force employment. Note that it is not sufficient that the injury merely originated during the same period that the employee was serving with the ADF. In the case where an injury is a 'disease', and thus may have multiple causes, it must be shown that the employment contributed 'in a material degree' or on/after 13 April 2007, 'to a significant degree' to the onset of the disease. There must be a close nexus between the claimed medical condition and the circumstances of employment. This is not always straightforward. There are many exclusions, exceptions and legal precedents and these will be outlined later in this Chapter.
While the employee has a responsibility to present the Delegate with evidence and reasons for acceptance of the claim, the Delegate also is required to investigate the case actively and fairly, and to take into account all relevant material regardless of its origin. The SRCA provides the Delegate with powers to demand information from other parties and to require medical examinations by a medical practitioner of the Delegate's choice. Cases are decided on the basis of the available evidence judged against the civil standard of proof i.e. on the balance of probabilities, (meaning 'more likely than not'). Acceptance of liability may not, therefore, be based on hypotheses, mere possibilities or unverified assertions by claimants.
In deciding liability, Delegates must classify the employee's condition or loss as either an injury, a disease, an aggravation of an injury or disease, or 'loss of property'. These are all separate categories of loss distinguished by the SRCA and its predecessors. Classification affects the criteria used for acceptance of liability.
- 'Injury' generally means a medical condition with a single, traumatic origin such as a wound, broken bone or burn. The nexus with employment is usually a simple one.
- 'Disease' generally means medical ailments of gradual onset and without a single identifiable or traumatic cause. For instance, infectious illnesses, most psychiatric illnesses and gradual attrition of the joints are all 'diseases' for SRCA purposes. The various Acts require only that ADF employment contributed to the onset of the disease, and do not require that it was the sole cause. The required degree or kind of contribution varies between the current and former Acts.
- 'Aggravation' means that a work-related factor has caused a worsening, re-emergence or acceleration of a pre-existing medical condition. Aggravations may be permanent but may often be temporary in nature. Accordingly, it is important that a Determination distinguishes between liability for an aggravation and the causation of the principal condition.
- 'Loss of Property' claims are rare, as this term is very narrowly defined by S15 of the SRCA and does not refer to general goods and chattels of an employee. It refers only to damage to artificial limbs and other prosthetic substitutes for the employee's body. In practice (i.e. applied to the ADF which does not employ the disabled), this usually means damage to spectacles, dentures and other similar aids.