Under section 68 of MRCA [2], the Commonwealth is liable to pay PI compensation to a person if:
More information on how a claim for PI compensation can be lodged can be found at Chapter 2.1.8 [3].
Broadly speaking, the intention of section 322 is to prohibit the making of multiple simultaneous claims, but does not necessarily preclude a person from making subsequent claims.
In summary:
A client can make a PI claim for any new or aggravated condition/s other than the condition/s subject to a current appeal, or that are within the 12 month appeal period;
A client is not able to make a subsequent PI claim which relates to the same condition/s that have been previously determined and are either under active appeal or within the appeal period.
Section 68 of the MRCA operates, and is supplemented by section 71, to provide permanent impairment compensation with reference to the ‘whole of person impairment’ as a result of the accepted service-related injuries or diseases. The Act expressly contemplates that a person’s permanent impairment compensation would be adjusted where there are subsequent conditions accepted by the Commission. Therefore the same matter provisions are not designed to prevent a subsequent claim for PI compensation in respect of conditions that were not the subject of the initial compensation claim.
Examples
Scenario 1
A client recently had liability accepted for osteoarthritis of the right knee and lumbar spondylosis, and subsequently submits a claim for compensation for permanent impairment. While an assessment is still ongoing for these 2 conditions, the client’s liability claim for posttraumatic stress disorder is accepted and submits a further claim for permanent impairment for the condition.
The claimant can submit a claim for permanent impairment for the posttraumatic stress disorder. Where the Commission has accepted liability for the condition, it then forms part of the ‘compensable conditions’ in section 68 of the MRCA, and the permanent impairment of the claimant would then be assessed on the basis of all three conditions.
Scenario 2
A client submits a claim for permanent impairment for two accepted conditions, general anxiety disorder and sensorineural hearing loss. An assessment is made and the client is found to have 40 impairment points.A month following this determination, the client submits a claim for a PI with respect of a new condition, bilateral osteoarthritis for which liability was accepted after the initial PI determination.
The client is not prevented under section 322(4) from submitting a claim for additional permanent impairment compensation, because once liability for the new condition is accepted by the Commission, it constitutes ‘one or more additional service injuries or diseases of the person’ for the purposes of section 71 of the MRCA. The ‘person’s overall impairment’would then be assessed on the basis of all three conditions, and the amount of compensation would added together with the permanent impairment compensation for the ‘original compensable conditions’, up to the maximum prescribed by section 74.
Practically, the impairment points found in the original determination (i.e. 40 points) should be added to the impairment points awarded with respect of the new condition following an assessment to find the degree of impairment resulting from that condition.
Scenario 3
A client submits a claim for permanent impairment for their accepted conditions, general anxiety disorder and sensorineural hearing loss.An assessment is made and the client is found to have 40 impairment points. The client lodges an appeal with respect of the determination with the VRB. Two months later, liability is accepted for a new condition, bilateral osteoarthritis and the client submits a claim for a PI with respect of the condition.
As above, the client is not prevented from submitting a claim for permanent impairment compensation with respect of the new condition. Section 71(1) will apply and the additional impairment from the additional service injury or disease should be assessed and compensated where the person meets the 5 point impairment threshold.
Scenario 4
A client recently had liability accepted for lumbar spondylosis, hearing loss and tinnitus and subsequently submits a claim for compensation for permanent impairment. The claim is finalised and the person is offered compensation under section 68 with respect of the conditions. Six months later the client submits a further claim for permanent impairment compensation for the accepted conditions, during this period the client has not had liability accepted for any other service-related conditions.
The claimant is not entitled to claim for additional permanent impairment for the three accepted conditions. The same matter provisions apply here and the client is still within the 12 month appeal period with respect of the section 68 determination. The client will only be entitled to claim for additional compensation if liability is accepted for a new condition, or after the appeal period expires.
Scenario 5
A client submits a claim for permanent impairment for the accepted condition of major depressive disorder.An assessment is made, and it is found the condition is permanent but not yet stable, so interim compensation is offered on the basis of 30 impairment points. The client lodges an appeal with respect of the determination with the VRB. Six months later, liability is accepted for two new conditions, rotator cuff syndrome of the left shoulder and subacromial bursitis of the left shoulder. The client submits a new claim for a PI with respect of the left shoulder conditions.
The previous interim determination of compensation will not preclude the assessment of additional compensation payable to the client, and they can make a valid claim for permanent impairment compensation with respect of their two newly accepted conditions.
The original interim determination and impairment points with respect of the major depressive will remain and is a matter for the VRB to consider.
Practically, where there is a permanent impairment with respect of the left shoulder conditions, the impairment points found in the original interim determination (i.e. 30 points) should be added to the impairment points awarded for the new conditions. Where the degree of impairment constitutes a 5 point increase overall, the person will have met threshold and be entitled to additional compensation. The calculation of compensation payable will be based on the difference of impairment between the 30 points and the new overall impairment rating with the inclusion of the left shoulder conditions. The delegate will able to award the amount of compensation payable by way of a further section 75 determination.
Section 69 of the MRC [2]A requires that PI compensation is not payable unless a person's WPI constitutes 10 IPs. IPs from more than one accepted condition can be combined to meet the 10 IP requirement. The impairments excepted from the 10 IP requirement are impairments of the fingers, the toes, the sense of taste and smell, and hearing loss. For these impairments section 69 of the MRCA requires that PI compensation is not payable unless WPI constitutes 5 IPs. IPs from more than one condition cannot be combined to meet the 5 IP requirement.
Under subsection 70(2) [6] of the MRCA [2], the amount of PI compensation payable in respect of an accepted aggravation of a pre-existing condition is the amount payable in respect of the IPs and lifestyle effects constituted solely by the aggravation.
GARP M contains no specific method for apportioning the aggravated component of a condition. Delegates should use Chapter 19: Partially Contributing Impairment and treat the impairment from the pre-existing condition as if it were an impairment from a non-accepted condition. Impairment from the aggravation should be treated as if it were an impairment from an accepted condition. The relative contributions of the pre-existing condition and the aggravation should be based on appropriate medical advice.
Aggravations are subject to the same minimum IP requirements discussed above.
Overview:
Aggravations of signs and symptoms are subject to the same permanent impairment (PI) consideration as other service injuries or diseases. Clients who have had aggravation of signs and symptoms accepted under section 30 of MRCA will not be automatically disqualified from claiming PI on the basis of the assumed temporary nature of their aggravation. Instead, a claim for PI should only be rejected where they do not meet the criteria for PI provided in Chapter 4, Part 2 of the MRCA, based on medical and other relevant evidence. Whilst there is a reasonable assumption that a claim for liability under s30 will by its very nature not attract a claim for PI, this should not be the only reason provided for rejecting such a claim.
Background:
Section 30 of MRCA allows claims to be considered for signs and symptoms of an injury or disease sustained or contracted while the person was a member rendering defence service, or where a pre-existing sign or symptom was materially contributed to, or aggravated by their service. The explanatory memorandum to section 30 provides that while accepted aggravations are compensable under MRCA, only permanent aggravation or worsening contributed to by defence service can attract compensable periodic payments for permanent impairment.
While, in general, cases involving the aggravation of signs and symptoms usually result in a short term or temporary aggravation, this may not always be the situation. Therefore each case must be assessed on its own merits. For this reason, the determination of liability should never state whether or not an aggravated condition is of a temporary or permanent nature. Nor should any determination state in advance a period during which compensation will be available. This means that PI claims cannot be automatically rejected based on the fact that liability has been accepted under s30 in isolation. Instead, each case must be considered on its own merits against the criteria set out in chapter 4 Part 2. In the majority of cases, particularly where the liability decision is recent, the evidence on file used to determine the claim under s30 will be sufficient to satisfy the PI delegate that Chapter 4 Part 2 criteria has not been met. However if this is not the case, then further investigation and medical assessment may be necessary.
Eligibility to receive PI is therefore dependent on a claim meeting the criteria provided in Chapter 4, Part 2 and not the head of liability under which DVA has accepted liability.
In summary, the Commonwealth is only liable to pay compensation under Chapter 4 Part 2 to the extent of the contribution or aggravation and only for as long as the worsening, aggravation or contribution applies.
Policy:
Section 30 should be used where the signs or symptoms of a pre-existing condition are aggravated by defence service. That is, where defence service has not aggravated the underlying pathology of a pre-existing condition. Accepting liability under this section will not automatically prevent a PI claim being considered. Claims for PI must be considered based on the eligibility criteria set out in Chapter 4 part 2.
PI will be payable if it is considered that any impairment resulting from the aggravation will continue indefinitely, is stable and meets the minimum threshold for payment of PI. Legislative requirements will apply regardless of the section under which liability has been assessed. Liability for the aggravation will continue even if the member is not eligible or has ceased to be eligible for the compensation or benefit.
Should a claimant already be in receipt of or entitled to PI (including interim) compensation for an accepted condition or conditions and suffers another condition, additional PI compensation is payable under subsection 71(1) of the MRCA [2] to a person if:
Under subsection 71(2) [6] of the MRCA [2], if a person has been paid or is entitled to be paid PI (including interim) compensation and one or more of the accepted conditions deteriorates, additional compensation for PI may be paid if:
“Natural deterioration” means that a condition has become worse, not that it has been made worse (see Windeyer J in Federal Broom Co Pty Ltd v Semlitch (1964) [10] 110 CLR 639-640). In other words, it must be distinguished from aggravation, and includes a situation whereby a progressive condition increases in gravity by running its ordinary course.
Links
[1] https://clik.dva.gov.au/user/login?destination=comment/reply/19341%23comment-form
[2] http://www.comlaw.gov.au/Series/C2004A01285
[3] https://clik.dva.gov.au/military-compensation-mrca-manuals-and-resources-library/policy-manual/ch-2-claims/21-making-claim/218-claims-compensation
[4] https://clik.dva.gov.au/user/login?destination=comment/reply/19375%23comment-form
[5] https://clik.dva.gov.au/user/login?destination=comment/reply/19360%23comment-form
[6] https://clik.dva.gov.au/service-eligibility-assistant-updates/all-determinations-order-date-signed-oldest-most-recent/determinations-under-mrca
[7] https://clik.dva.gov.au/tags/signs-and-symptoms
[8] https://clik.dva.gov.au/user/login?destination=comment/reply/19350%23comment-form
[9] https://clik.dva.gov.au/user/login?destination=comment/reply/19354%23comment-form
[10] http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/1964/34.html?stem=0&synonyms=0&query=semlitch%201964