It has long been the practice within the SRCA jurisdiction to obtain legal advice on complex claims. This has been particularly so with reconsideration and AAT decisions. It is still considered necessary to make legal panels available for delegates due to the complexity of the law and the potential high ongoing costs of claims. The MRCC has used a panel of five firms, established by Comcare, for obtaining legal advice on reconsiderations and AAT matters.
The Military Rehabilitation and Compensation Commission has determined that before a reconsideration cases can be referred to legal panel law firms one or more of the following factors in each category must be present:
Category 1
- the client is represented;
- the issue under review is complex; and
Category 2
- the potential ongoing liability is significant;
- the merits suggest that liability for an injury or payment of a benefit should be denied; and
- the claim is considered “borderline” (eg the evidence does not clearly support a decision).
It should be noted that not all cases that meet the criteria would necessarily require referral for legal advice. The decision to seek advice would depend on the merits and circumstances of the particular case. A record needs to be placed on each file to indicate why the referral is considered necessary and which criteria have been met. This process will be incorporated into the Quality Assurance program.
It is also required that the relevant Manager of the Reconsiderations Section (Brisbane and ACT Office) examines all matters to be referred for advice before such advice is actually sought. It is further required that the manager examine all advice received from the legal panel and provide guidance to reconsideration delegates on the appropriate decision or course of action to take in each case. The responsibility for the final decision on the claim will continue to rest with the individual delegates.
For primary decisions it is only in the most exceptional matters that legal advice would be sought. Where a primary delegate requires advice on a particular matter they should in the first instance consult senior delegates in their own office. If the matter is still unresolved it should be referred to the Director SRCA Policy via the MRCC discussion line. If warranted that Director, in consultation with the Director ACT office, will refer the matter to a member of the legal panel.
When it is really necessary and appropriate to obtain a legal opinion regarding a particular matter, the relevant Delegate must bear in mind that the final decision is his or her own and he or she should not seek to abrogate that responsibility to a member of a legal panel. Any such legal opinion is one piece of evidence that should be take into account when making a decision.
Cases should not be referred to the legal panel as a matter of course, or to find a way to reject a claim. It is the responsibility of the Delegate to arrive at the correct decision, based on the available evidence. Obtaining a legal opinion is an expensive and time consuming process that needs careful consideration before being undertaken.
If a legal opinion is obtained, the Delegate is not obliged to follow it if the weight of evidence supports another view. For that reason, Delegates should ensure that they provide a full and unbiased statement of the facts and evidence in a particular case. Often the legal panel will also provide a statement of reasons for inclusion in a determination advice. Again, these reasons should not be lifted in their entirety from the legal advice and included in the letter to the compensation claimant. Rather, the reasons obtained as a result of obtaining legal advice should be used by the relevant Delegate as a guide to what can and should be included in the reasons for decision.