Under subsection 7(1) of the CTPA, the MRCA applies to a claim for clinical onset if two criteria are met:
Both criteria must be met before the MRCA can apply to a claim for clinical onset. The MRCA does not apply to a claim for clinical onset if the condition occurred after 1 July 2004 and the condition only relates to defence service rendered before 1 July 2004.
The condition must occur on or after 1 July 2004. Delegates should use the date of clinical onset as the date a condition occurred (see 3.4.3 [3] of Chapter 3: Liability). Therefore, it will be vital for delegates to establish a date of clinical onset based on the medical evidence, with particular weight given to the specialist medical report (SMR). Assistance can be sought from a Departmental Medical Officer (DMO) if required. If the date of clinical onset is before 1 July 2004 the MRCA does not apply to that condition.
Example 1:
On 4 August 2006 a member submits a claim for osteoarthrosis (OA) of the right knee. The member enlisted in the Army in 1995 and is still serving. The delegate confers with the DMO regarding the medical evidence on file, and establishes the date of clinical onset to be 11 May 2004, when x-rays were conducted following complaints from the member regarding right knee pain. The MRCA does not apply to the member's condition because the condition occurred before 1 July 2004.
Example 2:
On 30 March 2007 a former member submits a claim for diabetes. The former member enlisted in Army in 1999 and was discharged in December 2005. The former member started suffering symptoms such as excessive urination and excessive thirst, accompanied by weight loss, in August 2005. The former member underwent a diabetes screening test in February 2006 and was diagnosed with diabetes mellitus. After conferring with the DMO, the delegate decides that clinical onset of this condition was in August 2005, when the former member first started displaying symptoms of the condition. As the date of clinical onset is after the 1 July 2004, the MRCA may apply to this claim, but only if the condition also relates to service rendered on or after the 1 July 2004, as discussed below.
The condition must relate to defence service rendered on or after 1 July 2004 (see 3.2 [5] of Chapter 3: Liability). However, it is not necessary for the condition to relate solely to defence service rendered on or after 1 July 2004. The MRCA will also apply to a condition that relates to defence service rendered before 1 July 2004, but only if the condition also relates to defence service rendered on or after 1 July 2004. In other words, the MRCA will apply if clinical onset relates to service before and on or after 1 July 2004. Defence service taken into account can span 1 July 2004 or be rendered during separate periods (including periods of service separated by a period of non-service).
Example 1:
On 19 May 2006 a former member submits a claim for pleural mesothelioma. The former member enlisted in the Royal Australian Navy (RAN) in 1963 and was medically discharged on 14 March 2006. He first began to suffer symptoms such as shortness of breath, coughing and chest pain in around 2005. The condition was diagnosed on 25 November 2005 following a thoracoscopy. The former member claims his condition arose out of exposure to asbestos whilst serving at sea during the 1960s. The delegate determines on the balance of probabilities that the date of clinical onset of pleural mesothelioma was after the 1 July 2004. Although the former member has rendered defence service after 1 July 2004, defence service after that date does not relate to his condition. Therefore, the MRCA would not apply to the former member's condition because the condition only relates to service rendered before the 1 July 2004.
Example 2:
On 7 October 2005 a former member submits a claim for right rotator cuff syndrome (RCS). The former member enlisted in the Army on 25 April 2002 and was medically discharged on 13 November 2005. The delegate confers with the DMO, and from the service documents establishes the date of clinical onset to be 9 August 2005. The delegate notes the former member contends that his RCS arose out of participation in regular battle training spanning his entire period of service and the evidence on file supports this contention. The MRCA does apply to the former member's condition because it occurred after the 1 July 2004 and relates to defence service rendered on or after 1 July 2004. It does not matter that condition also relates to defence service rendered before 1 July 2004 – the MRCA still applies.
The Military Rehabilitation and Compensation Commission has approved the following forms for the purposes of making a claim for the acceptance of liability under section 319 [7] of the MRCA:
Where a claim for the acceptance of liability for clinical onset has been lodged in accordance with section 323 [8] of the MRCA on Form D2020 or Form D2582, and the delegate decides the MRCA applies to the claim, the delegate should contact the claimant and ask whether he or she wishes the claim to be determined under the MRCA. If the claimant agrees to have the claim determined under the MRCA, the following release needs to be signed by the claimant:
“I (Name) of (Address), consent to the information collected pursuant to this form being used for the purposes of investigating my entitlement to benefits under the MRCA.
Signature Date”
If the claimant does not provide his or her permission for the claim to be determined under the MRCA, the claim should be determined under either the VEA or the DRCA.
Links
[1] https://clik.dva.gov.au/user/login?destination=comment/reply/18877%23comment-form
[2] https://clik.dva.gov.au/user/login?destination=comment/reply/18850%23comment-form
[3] https://clik.dva.gov.au/military-compensation-mrca-manuals-and-resources-library/policy-manual/ch-3-liability/34-investigating-claim/344-establishing-clinical-onset-andor-worsening
[4] https://clik.dva.gov.au/user/login?destination=comment/reply/18883%23comment-form
[5] https://clik.dva.gov.au/military-compensation-mrca-manuals-and-resources-library/policy-manual/ch-3-liability/32-heads-liability
[6] https://clik.dva.gov.au/user/login?destination=comment/reply/18879%23comment-form
[7] clik://LEGIS/MRC-ACTS/MRCA/S319
[8] clik://LEGIS/MRC-ACTS/MRCA/S323