Delegates should be aware that a determination which accepts liability to pay compensation for an injury, disease etc. is an 'all or nothing' determination. The S — RCA and its predecessors are 'no-fault' Acts and it is not possible to concede less than 100% liability on the basis that the client bear some of the 'fault' or that some other party was partly responsible for the injury.
Similarly, where the client had an injury (or a condition predisposing him/her to injury) which predated enlistment and this was a factor in promoting a new injury or an aggravation of the old one, liability should not be denied on these grounds alone.
The accepted doctrine (reinforced by case law) within all Compensation jurisdictions is that an employer takes on an employee 'as he finds him' i.e. with all the person's defects and tendencies. The person's natural defects (i.e. a greater than usual tendency to contract osteoarthritis with moderate exercise) do not mitigate the effects of liability for that work-related injury or disease.
Naturally, this should not be interpreted to mean that the Commonwealth is liable for illnesses or injuries which originated entirely outside of the period of service and whose subsequent course was not influenced by the employment, (i.e. even though it may have manifested itself only during service). There must always be an employment-related nexus for a medical condition to be compensable.
On the other hand, failure to declare pre-existing injuries and known medical conditions at the time of enlistment in the ADF cancels any compensation claim in relation to (i.e. aggravating) that condition. This is further discussed at 27.1.1 [3].
Where an injury or disease has been diagnosed by the ADF Medical Service prior to the member's discharge, it may be possible to determine liability on the basis of existing documents (i.e. where the factual circumstances leading to the onset of the disease, are clear). Delegates, not doctors, are the decision makers. A formal medical opinion by a doctor on the causation of an injury or a disease is not necessary if the medical facts of the matter are already evident to the Delegate, i.e. on the basis of the available papers.
In many cases, it will be necessary to seek a medical opinion to confirm the diagnosis and the likely (i.e. on-balance-of-probabilities) causation of an injury or a disease. Note, that the client's authority given on the claim form allows Delegates to approach treating doctors and examine existing reports without further ado.
In an injury claim, Delegates should investigate:
In a disease claim, Delegates should investigate:
DVA engages Contracted Medical Advisors (CMA) to assist in the timely consideration of claims.
CMA advice can and should be used where appropriate. Depending on the circumstances, it may be sufficient to disallow a claim if the weight of all available evidence led the delegate to conclude that there was no liability.
It is important that contemporary (ie current) medical evidence is considered as medical records already in a claimant’s file (or obtained from Defence) can be a number of years old and it is necessary to confirm whether a diagnosis is still current, and whether the diagnosis available adequately addresses the claim. Each case should be considered on its merits. If there is sufficient information on the file already, in particular for injuries which have resolved (and there is no suggestion of a sequela condition), or a chronic disease that has stabilised, it may not be necessary to seek further contemporary medical evidence. Advice from a CMA may be helpful to confirm this. However, if further evidence is required, contemporary medical evidence is not necessarily limited to specialist reports, it may also include x-rays, test results and other reports. This does not apply to psychiatric conditions, where specialist medical evidence is required.
In some cases where a condition has stabilised (ie. it is unlikely there will be be any further change in the condition), and the medical evidence reflects this, it may be appropriate for a claim to be accepted or disallowed based on consideration of the existing medical evidence on a claimant’s file and after consultation with a CMA, without a need to seek further specialist medical advice. In addition, where it is clear that the condition cannot possibly be related to service, eg. the condition is hereditary or the causes unknown, it may be appropriate to reject the claim based on CMA opinion.
For further information on when to obtain a medical opinion refer to Chp 11.2 [10].
In circumstances where:
the claimed condition is one which ordinarily would not change over the intervening period; and
the relevant service and medical documents have been considered; and
a CMA has been consulted;
It would be open to a delegate to reject the liability claim, if they are satisfied on the balance of probabilities that a claimed condition is not related to Defence service, or to accept the claim if they are satisfied the condition is related to service.
Before a claim is rejected, the delegate should contact the claimant to discuss the matter and allow the claimant the opportunity to provide further medical evidence to support the claim before it is rejected. Refer to Chapter 3.2 [11] of CLIK for further information.
If a DVA CMA’s opinion was that there was a probable connection between a claimed disease and the employee's service in the ADF, the delegate may in such circumstances consider it reasonable and appropriate to find liability under the DRCA.
Specialist Reports
Note that, for the purposes of establishing the diagnosis and causation of a disease, the opinion of a medical specialist – i.e. a specialist in the medical field relating to the disease – is to be sought in preference to a General Practitioner. Reports from General Practitioners provided by the client and forwarded with the claim form in disease cases, should be noted but are not usually accepted as definitive.
Furthermore, in most cases, the medical opinion of the client's treating medical specialist is (at least initially) to be sought in preference to other (i.e. consultant) specialist medical opinion.
This is because the various appeal forums (AAT, Federal Court) generally give greater credence to the opinion of a specialist who has seen the client over a period of time and for the purposes of treatment, rather than a consultant who has seen the person only once and only for the purposes of writing a report.
In the case of a client who is still serving, and as a rare exception to this general rule, it may be sufficient to address the standard 'liability questionnaire' to GPs within the ADF Health Service unit responsible for that client's case management. (Note: This applies to cases when there has been as yet no specialist involvement.)
This is particularly valuable in cases where there is little delay between injury or onset of a disease and the claim for compensation. In that case, the current treating ADF doctor is likely to be the person to whom the symptoms were first reported, and may have further information relating to the circumstances surrounding causation.
Nevertheless, where the ADF Health Service has already referred a serving member to a consultant medical specialist, the liability questions should be referred to that specialist for response, i.e. rather than to the GP-staffed Health Service. Note that since the MRCA came into effect on 1 July 2004 all injuries sustained as a result of service since that time will come under that Act resulting in most claims under the DRCA in respect of an injury being already some years' old.
Where the member has discharged, the Delegate should usually address the liability questions to the current (i.e. civilian) treating specialist.
However, this does not mean that the Delegate may not also refer to a specialist consulted by the ADF whilst the member was still serving. Indeed, in some circumstances clarification of the medical reports current at the time of injury or onset of the disease, may be vital to the outcome of the case.
However, it frequently happens that a client does not have a treating specialist. Also, but more rarely, there may be a treating specialist but the Delegate may be unsatisfied with that doctor's response. In either case, the Delegate may need further medical advice to make an informed decision on liability.
The medical specialist commissioned to conduct this medical examination should be selected with care, having regard to qualifications, known experience or expertise in the field and – if known – the quality and comprehensiveness of previous reports.
While the cost of the doctor's services is certainly a factor, given the large sums potentially at stake in either a concession or denial of liability and the issues of client welfare, the quality of advice is a much higher priority. In general, therefore, Delegates should choose medical referees primarily on the basis of quality of advice rather than primarily on the cost of the service.
The Defcare Standard Letter suite contains separate letters appropriate specifically for enquiries to ADF Health, to the current treating doctor and to a consultant medical specialist commissioned to examine the client for the purposes of a medical opinion on liability. In all of those cases, the Delegate is free to ask additional questions or add remarks, but the appropriate questionnaire attachment should also be retained.
Delegates should be sure to include:
1.a clear statement of the reasons for the request, and
2.all other available medical information relevant to the case.
Delegates may of course modify this 'letter of request' to include further information they consider relevant to the case, or to ask additional, more detailed questions or those relating to issues of potential entitlement. Doctors should also be encouraged to provide detailed 'narrative' reports on their examination and assessment of the client's condition in addition to the brief formal responses to the questionnaire. In fact such details (clinical history, tests undertaken, alternatives excluded, reasons for opinion) are necessary for Delegates to form an opinion on the reliability of the doctor's conclusions. However, Delegates should not usually remove questions from the standard questionnaire, as this requests the minimum information required to process the claim beyond this point.
Delegates should ensure that specialist medical consultants are provided with all background information relevant to the examination. The letter of request should outline:
Medical examiners should also be invited to offer any comment of relevance that is not covered in the letter of request.
Section 57 of the SRCA gives Delegates the power to require the client to attend a medical examination by a doctor of the Delegate's nomination. The form of S5 — 7 is as follows:
57Power to require medical examination
57(1) Where:
a)a notice has been given to a relevant authority under Section 53 in relation to an employee, or
b)an employee has made a claim for compensation under Section 54,
the relevant authority may require the employee to undergo an examination by one legally qualified medical practitioner nominated by the relevant authority.
57(2) Where an employee refuses or fails, without reasonable excuse, to undergo an examination, or in any way obstructs an examination, the employee's rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the examination takes place.
57(3) The relevant authority shall pay the cost of conducting any examination required under this section and is liable to pay to the employee an amount equal to the amount of the expenditure reasonably incurred by the employee in making a necessary journey in connection with the examination or remaining, for the purpose of the examination, at a place to which the employee has made a journey for that purpose.
57(4) The matters to which the relevant authority is to have regard in deciding questions arising under subsection (3) include:
57(5) Where an employee's right to compensation is suspended under subsection (2), compensation is not payable in respect of the period of the suspension.
57(6) An employee shall not be required to undergo an examination under this section at more frequent intervals than are specified by the Minister by notice in writing.
Section 57:
Note that the requirement for the examination to be by 'one legally qualified medical practitioner' merely prevents the use of medical panels, i.e. examinations conducted by more than one doctor. However, the 'one doctor' provision does not relate to the number of examinations, i.e. it does not prevent the Delegate from ordering another appointment with another doctor if the first does not elicit the necessary information.
This interpretation has been confirmed by the AAT decision re Bessell and the Telstra Corporation Limited (1994) where the Tribunal decided that the Act does not limit the number of examinations.
Nevertheless, a Notice in Gazette S365 of 30 November 1988 prescribed that 'the intervals between examinations under this section by the same practitioner shall not be less than one month'
(Note the phrase 'by the same practitioner')
The issue of non-attendance without excuse and suspension from compensation is dealt with fully at 12.
Please see chapter 26 [19] in the Medical Treatment Manual for the circumstances in which costs associated with travel to obtain medical treatment can be paid under the SRCA. The same considerations listed in Section 16 apply under section 57, except that the minimum round trip of 50 km which applies under section 16 is not relevant.
Also, Delegates should ensure that any costs associated with payment for an examination under the provisions of section 57 are paid using the “General Medical Exam” codes within Defcare and not under section 16(6) for travel to attend treatment.
Some Ex Service Organisation client advocates and lawyers have adopted the practice of commissioning a Specialist Medical Review of their client without prior consultation with the Delegate, and subsequently forward this report to RCG expecting that the claim for liability be decided on the basis of it. Almost invariably, the Delegate is invited to pay the account for this report, 'forthwith'.
However, Delegates should discourage that practice wherever they have the means to do so because, where the Delegate finds that report is not useful in coming to a decision, the fee for the report is not payable by RCG. There is therefore potential for some clients to be financially disadvantaged by the practice.
Unsolicited medical reports (i.e. those not compiled at the instructions of the Delegate) are not always useful because:
Medical reports provided by the client's representative are part of the case put on his/her behalf and the doctrine of 'natural justice' requires that the case put to the Delegate should at least be considered i.e. examined to assess its bearing on the case. Equally, the Delegate as the decision-maker is entitled to decide which of that material is relevant, credible, etc. and has an appropriate bearing on the final decision.
Delegates should therefore closely examine any unsolicited medical report to determine whether, given the issues listed above, it provides a suitable basis for making a decision on liability (i.e. in conjunction with the other medical material available).
In some cases the Delegate addressing supplementary questions (or requests for clarification) to that doctor may resolve minor matters of concern.
Naturally, where a report meets all of the above tests and the Delegate has confidence in that report, it should certainly be used in the decision making process. However, just as certainly, Delegates are not obliged to accept the substance of a medical opinion simply because it has been presented. Delegates have a responsibility to inform themselves of the medical issues, to decide the relevance and weight of each, and to exercise information gathering powers under the Act.
Therefore, where a Delegate is less than fully confident of the medical opinion favoured by the advocate, he/she should commission a new medical examination by a using the powers given by S5 — 7.
In advising the advocate of the decision to seek a further medical report i.e. form another doctor, Delegates may if they choose refer to any specific deficiencies of the unsolicited report but should be careful not to make any slur on the professional competence of the doctor.
Medical reports organised unilaterally by a client or advocate (i.e. without RCG soliciting such a report) are commissioned at a financial risk. Where the Delegate does not use that opinion in forming the liability determination, the doctors fee for that report remains a mere cost of putting a case to the Delegate, and is not refundable i.e. RCG is not obliged to pay for the report. Only where the Delegate has accepted the report (i.e. all of it or only part) as evidence bearing directly on the outcome of the liability determination, should RCG bear the cost of that report.
Naturally, payment/reimbursement for reports meeting these criteria should be delayed until after the liability determination has been issued.
The identity of the doctor (medical specialist) from whom the Delegate is to accept advice is a matter of interest to some advocates, in some cases. Also, some advocates may suggest in view of the risks inherent in presenting a report that the Delegate did not commission, that some agreement be struck – i.e. between Delegate and advocate – as to a suitable medical adviser.
Although a consensus approach may indeed be an attractive option in many cases, Delegates should ensure the integrity of the decision making process by observing the following points:
In summary, the Delegate need not and should not 'compromise' unless entirely comfortable with the proposal to use a particular medical adviser.
The Delegate may of course invite the advocate to provide additional material to the doctor, but only providing that a copy of these documents goes to the Delegate as well.
In other words, Delegates should not accede to the perception or assertion that they are merely a contending advocate from the 'contra' side of the liability decision and that the real power lies with a medical expert whose opinion has been agreed to be decisive. The goal of the advocate may be to 'set up' a situation where the Delegate has by agreement abdicated their powers of decision in favour of a third party, (i.e. one more acceptable the advocate than the Delegate). In fact, you as the Delegate are the decision-maker. A medical examination – if required – is to inform you, not any other party.
The purpose of medical report from a Specialist Medical Review (SMR) is to provide expert advice to a Delegate about the nature and probable origin of the alleged condition. In disease cases in particular, the SMR will be looking for medical evidence indicating that the illness can, on the basis of probability, be attributed to some particular cause.
The significance of obtaining a medical opinion on a particular case lies in how well (i.e. how clearly and reliably) the report performs that advisory role, and not merely that, as part of a 'required process', the SMR can be said to have been done.
The medical specialist providing the report has no powers of decision under the Act. It is for the Delegate to make the decision about liability (or indeed, any entitlement referred to in the report), taking into account the doctor's whole report as well as its formal conclusions, and considered along with all other aspects of the case including the alleged circumstances of the injury.
In other words, it is up to the Delegate to thoroughly understand, to interpret and finally to weight the medical evidence against any other competing considerations. This interpretation and weighting does NOT mean that the Delegate is required to exercise medical expertise, but only to exercise common sense and judgement in the use of SMR evidence, particularly where conflicts are evident. In particular it means that Delegates should follow the guidelines below, and/or take the following factors into consideration when accessing medical reports:
Reports on the nature and causation of a disease should normally be by a legally qualified medical specialist. With very few exceptions, reports by general practitioners are not sufficient for the purpose. GP reports are generally only acceptable on health maintenance issues for those cases where liability has been accepted i.e. ongoing treatment, medication, readiness for work etc.
Legally qualified medical specialist means a licensed medical doctor with a formal higher level qualification (i.e. membership of the relevant professional association) which in effect represents a further licence to practice in a particular medical specialty. Note: This excludes members of para professional associations such as physiotherapists podiatrists and the various chiropractic associations. Also, members of 'alternative' medical associations such as practitioners of traditional Chinese medicine, those with 'natural therapy' training etc. are not acceptable for this purpose.
The specialist qualification must of course be relevant to the nature of the ailment under investigation. It is clearly not appropriate, for example, for a claim relating to a psychiatric illness to be decided on the medical advice of a specialist orthopaedic surgeon. This remains the case, even where the mental ailment has allegedly emerged out of the orthopaedic condition that this specialist has been treating in the long term.
Note: While in this example the orthopaedic specialist may certainly be able to identify that there is a depressive condition present, the precise diagnosis and a confirmed cause of that illness can only be accepted on the opinion of a psychiatrist.
In the case of psychiatric conditions, the opinion of a psychiatrist is usually required, but that of a clinical psychologist may be acceptable in some circumstances.
In general with respect to the issues of diagnosis and causation, the opinion of a psychiatrist is to be preferred to that of a psychologist.
The schedule of questions provided to the specialist with the standard letter of request, has space for brief text answers or explanations of the selected alternative responses.
Brief specialist reports confined to endorsements on the schedule of questions may sometimes be acceptable – at the discretion of the Delegate – in uncomplicated cases. However, it is not the preferred option. Delegates should expect that the specialist review the clinical history, outline the course of the examination and the tests undertaken, identify the significant issues and give reasons for the conclusions expressed against each of the questions on the schedule. This degree of detail is necessary for the Delegate to assess what weighting – i.e. what degree of credence – to give the opinion in the final assessment of liability. As noted above, the Delegate is not expected, in this context, to judge the correctness of the conclusions, but to form an opinion as to whether the doctor has exercised due care in arriving at those conclusions.
Where it is not obvious that, for example, a particular issue has been considered by the examining specialist, the Delegate should not hesitate to address further questions to that doctor or to ask for a more comprehensive explanation. Where this is not forthcoming, the opinion should be accorded a low weight in the liability assessment process.
Delegates should read the whole report and not merely the summary of conclusions. Delegates should understand the reasoning implicit in the specialist medical report. Where there is an apparent internal contradiction, faulty logic or circular reasoning within the report, the Delegate should ask for a clarification. Alternatively, where this appears to the Delegate not to be an isolated instance but so fundamental as to invalidate the recommendations, the Delegate should set that report aside and commission a report from another specialist.
Example 1
As an example, consider the case where the bulk of a psychiatric report (concerned with a depressive illness) outlines a long series of traumatic and alarming events from a client's private family life. It then concludes: 'In the absence of any non-work related factors I must conclude that the disorder has a work related origin'.
In that case, the Delegate should again approach the psychiatrist and seek an explanation as to why the non-compensable traumatic events vetted exhaustively in the report were not involved in the origin of the disease.
Example 2
In a second example, a psychiatrist accepts that objective evidence shows the client did not experience the traumatic ADF service-related events that he had originally claimed and that in fact the military service was uneventful. 'Nevertheless, because Mr X subjectively identifies his Army service as the source of his difficulties, his current condition is directly attributable to that service'.
In that case, the report should be set aside and another commissioned from a different specialist.
Links
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[3] https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/liability-handbook/ch-27-pre-existing-conditions/271-failure-declare-existing-condition-recruitment/2711-exclusion-liability-fraudulent-misstatement-recruitment
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[8] https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/liability-handbook/ch-14-survival-claims-over-time/142-denying-benefits-where-there-no-current-entitlement
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[11] https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/liability-handbook/ch-3-determinations-liability/32-natural-justice-considerations-and-prior-warning-adverse-decisions
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