The Military Compensation Act 1994 inserted a new S6A into the SRCA to provide additional protection for military personnel who suffer injury as a result of medical treatment.
Section 6A(2) provides that compensation is payable if:
Section 6A(3) makes it clear that this is the case whether or not the original condition that was being treated was compensable under the Act.
The extended protection offered by S6A applies to:
The form of S6A is:
Injury arising out of or in the course of employment – extended operation
6A(1) This section applies to the following employees:
a)members of the Defence Force
b)members of the Air Training Corps established under Section 8 of the Air Force Act 1923
c)members of the Australian Cadet Corps established under Section 62 of the Defence Act 1903
d)members of the Naval Reserve Cadets established under Section 38 of the Naval Defence Act 1910
e)persons declared by the Minister under subsection 5(6A).
6A(2)If, at any time, whether before, on, or after, 1 December 1988:
a)an employee to whom this section applies received or receives medical treatment paid for by the Commonwealth, and
b)as an unintended consequence of that treatment the person suffered or suffers an injury,
the injury to the employee is taken to have arisen out of, or in the course of, the person's employment, whether or not the person has remained an employee to whom this section applies.
6A(3) Subsection (2) applies whether or not the original condition that was being treated was compensable under this Act.
'Medical treatment' is defined in S4(1) of the SRCA. If there is any uncertainty whether the activity claimed is within the meaning of the term, see the detailed separate commentary within the Annotated Act.
The phrase 'paid for by the Commonwealth' is to be taken to refer to medical treatment provided to the member by ADF Health Services, either directly by ADF medical personnel or by a private provider on referral from, and at the expense of, the ADF.
The phrase is NOT to be taken to have the possible wider meaning of paid by the Commonwealth through Medicare bulk billing or through some other Commonwealth medical assistance program.
This policy approach is justified by the statutory context in which the phrase occurs. Section 6A was inserted by the Military Compensation Act 1994, and is clearly intended as a special supplementary benefit for members available only in a military context.
Claims for the unintended consequences of medical treatment can be quite complex. There have been a small number of cases adjudged at the AAT and Federal Court, coincidentally Defence related cases. The cases of Eaton and Comcare (2002) and Comcare v Houghton (2003) can be used as guides in these types of claims.
RCG policy is currently that:
Accordingly a treatment injury would not fall within the scope of S6A if:
It should be noted that a client may have other recourse if they are injured as a result of medical treatment in circumstances where S6A does not apply, for example:
1.A client suffers anaesthesia complications during an operation for the amputation of her leg, which had earlier been crushed in a non-compensable motor vehicle accident. The anaesthesia complications cause brain damage, leading to significant impairment and total incapacity for work.
2.A client is blinded in one eye following cosmetic eye surgery. Loss of sight is a known, but very rare, risk factor in that surgical procedure.
1.A client has his leg amputated below the knee following the infection of a crush injury sustained in a non-compensable motor vehicle accident. The impairment and incapacity for work is an intended consequence of medical treatment designed to save the client's life.
2.A client suffers nausea, weight loss and other symptoms known to be a common side effect of chemotherapy for his cancer condition. These side effects are an intended consequence of the medical treatment.
1.A client's hand is severed at the wrist in a non-compensable motor vehicle accident, microsurgery to rejoin the severed hand is unsuccessful. The impairment and incapacity for work arising from the loss of a hand is a consequence of the original motor vehicle accident, not of the subsequent medical treatment.
Section 6A was inserted into the SRCA to take account of the Military situation i.e. the requirement that a serving member be treated only by the ADF Health Service.
However, post-discharge medical treatment of a condition – i.e. where this treatment is compensable under S1 — 6 of the SRCA – represents another instance of treatment 'paid for by the Commonwealth'.
This is also the case where reservists are injured during their part-time service. The ADF pays only treatment until a claim with RCG is resolved. The case of a serving reservist therefore resembles that of a discharged full-time member.
When this treatment causes further complications, any resulting impairment or incapacity for work is also compensable as a direct result of the original injury, i.e. provided only that it was reasonable for the client to have obtained the medical treatment.
However, S6A is not relevant to such cases, as they are directly covered by S4(3) and S6(1)(b)(viii) of the SRCA. Section 4(3) states:
4(3) For the purposes of this Act, any physical or mental injury or ailment suffered by an employee as a result of medical treatment of an injury shall be taken to be an injury if, but only if:
a)compensation is payable under this Act in respect of the injury for which the medical treatment was obtained, and
b)it was reasonable for the employee to have obtained that medical treatment in the circumstances.
Whilst 'failure to diagnose' is, in isolation, not compensable there are situations where liability can be found against the Commonwealth. However in considering any claims that are based on a failure to diagnose Delegates should bear the following points in mind and establish:
The Delegate's first task in such a case is therefore to establish whether or not the condition being treated was itself compensable.
Where that original injury was compensable, liability for injury inflicted by medical treatment of that original injury, is itself compensable merely if it was 'reasonable for the client to have obtained that medical treatment'.
Where the client has obtained medical treatment at the direction of, or in accordance with the advice of a qualified medical practitioner, the medical treatment is to be regarded as reasonable for the purposes of S4(3).
The issue of medical qualifications and what constitutes reasonable treatment is discussed further at section 10.3 [12] in the Medical Treatment Guidelines Handbook.
Links
[1] https://clik.dva.gov.au/user/login?destination=node/20300%23comment-form
[2] https://clik.dva.gov.au/user/login?destination=node/20288%23comment-form
[3] https://clik.dva.gov.au/user/login?destination=node/20238%23comment-form
[4] https://clik.dva.gov.au/user/login?destination=node/20135%23comment-form
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[6] https://clik.dva.gov.au/user/login?destination=node/20240%23comment-form
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[9] https://clik.dva.gov.au/user/login?destination=node/20275%23comment-form
[10] https://clik.dva.gov.au/user/login?destination=node/20215%23comment-form
[11] https://clik.dva.gov.au/user/login?destination=node/20121%23comment-form
[12] https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/medical-treatment-handbook/ch-10-definitions/103-what-constitutes-medical-treatment