Once the amount of PI compensation payable has been determined under section 74 of the MRCA [2], or the level of interim compensation has been determined under section 75 of the MRCA, section 76 and section 389 of the MRCA requires the delegate to advise the claimant in writing of:
On PI compensation becoming payable, a client is to be sent a Determination letter, with enclosed terms of decision. The letter shall draw attention to the operation of s389, which will usually be accompanied by an election form which allows the client to advise the DVA of their s389 choice. Whilst there is no legislative timeframe in relation to a choice under s389, claimants should be advised to let DVA know of any intention to institute action for damages by retuning the signed 'election form' clearly indicating their intentions. If the s389 election form is not received by the DVA within a reasonable timeframe, every reasonable effore should be made to contact the client to ensure they are aware of their choice under s389. See Chapter 5.14 "Claimants Pursing Common Law Action [3]" for more information.
Under s68, 71 & 75 of the MRCA, compensation is generally payable once a determination has been made that a person is eligible for that compensation (having regard to the requirements of s77). Other than the 'choice' under s78 (discussed below), there is no further positive action required on the part of the person of the compensation to be required to be paid. Legally a person can be put into payment without a positive indicatin in writing that they wish to receive compensation, however, in lieu of doing this within a strict non-statutory tiemframe, there is instead a responsibility on processing staff to follow-up with those clients who do not respond within a reasonable timeframe.
It is important to note that as long as the clients is still within the 6 month timeframe, they are still able to advise the MRCC that they elect to convert part or all of their compensation into a lump sum.
If interim payments have been made for a condition which has stabilised and if the new amount payable is greater than the amount of interim compensation which has been paid, section 76 requires the delegate to advise the claimant in writing:
Each notice must specify the date on which it is given.
It is imperative that a claimant understands the impacts of their decision to convert permanent impairment periodic payments to a partial or whole lump sum. The financial impact of this decision on a client, will vary depending on the client's personal circumstances, and it should always be recommended that a client seeks financial and legal advice before making this decision.
It is also important to note that a decision to convert a weekly amount into a partial or whole lump sum under s78 is irrevocable and cannot be altered after it is made.
The legal personal representative of a deceased person is not entitled to choose to convert any percentage of a weekly amount that was payable to the deceased person to a lump sum.
Generally speaking, a person who makes a claim has the right to withdraw that claim at any stage up until it is determined. This is consistent with an individual claimant’s common law right to control their own affairs. Additionally, it is good administrative practice to withdraw claims prior to determination where the department becomes aware they have made an error, so the claim can be improved before it is investigated. Withdrawal procedures are further discussed in 2.6 of the Compensation Claims Procedures Library [4].
Once a determination has been made that PI compensation is payable and the claimant is notified, the claim cannot be withdrawn. This is because the Commission has an obligation to pay compensation and the claimant has the right to receive compensation from the time the Commission determines that compensation is payable.
B&PP understand that complex matters concerning withdrawal of claims may arise from time to time and therefore we encourage delegates to seek tailored advice on those cases when they arise.
Links
[1] https://clik.dva.gov.au/user/login?destination=comment/reply/19356%23comment-form
[2] https://www.legislation.gov.au/Series/C2004A01285
[3] https://clik.dva.gov.au/military-compensation-mrca-manuals-and-resources-library/policy-manual/ch-5-permanent-impairment/510-advising-claimant
[4] http://auth-clik.dvastaff.dva.gov.au/compensation-claims-procedures/registration-procedures/2-registering-liability-claims/26-claim-withdrawals