'Liability' in the context of the instructions and guidelines contained in this chapter means 'liability to pay compensation' in accordance with S14 of the SRCA or, having regard to earlier Acts, liability to pay compensation in accordance with Ss124 and 123A.
Determination of liability to pay compensation under S14 of the SRCA means the primary decision as to whether the SRCA has relevance to the employee's injury, i.e. it is the formal concession or denial of the Commonwealth's responsibility to pay compensation of any kind. It is no mere formality. Nothing is payable before/unless liability has been accepted.
This however does not prevent Delegates from gathering information and making all preparations to pay benefits (i.e. usually Incapacity) during the liability investigation process, i.e. in cases where there is urgent financial need and an eventual concession of liability appears likely. This is good client service. However, no actual payment can be made until after the date of the liability decision.
Similarly, Rehabilitation Delegates may certainly engage an employee in general discussions about rehabilitation options and offer advice etc. prior to liability determination. In fact this strategy, in the interests of 'early intervention', is recommended. However, the Delegate must not commit Commonwealths funds to (e.g.) an assessment or a rehabilitation plan until liability has been conceded.
Pre-liability rehabilitation is also possible for serving members identified for medical discharge, under the auspices of the Transition Management Service. (The TMS is administered by RCG Delegates for Dept of Defence.) Alternatively, Rehabilitation under the Veteran's Vocational Rehabilitation Scheme may be offered to employees who have no liability under a compensation Act but who qualify as a veteran for the purposes of the Veterans' Entitlements Act.
The responsibilities of Delegates in determining claims are discussed at length in this Handbook.
However, the following abbreviated version is presented in the context of 'initial' liability determinations only, i.e. so that this chapter may be self-contained.
Delegates need to be satisfied that:
1.the claimant has submitted a valid claim for compensation under the Act
2.the claimant is an 'employee' as defined by the Act(s)
3.has suffered an injury, disease, or aggravation during service of a type which is covered by the Act, and
4.the claimed injury 'arose out of or in the course of' (i.e. was caused by) this employment, or
5.the military employment contributed to any claimed disease to the extent prescribed by the Act(s)
6.the claimant has not recovered the financial loss caused by the injury by legal action or acceptance of a settlement under another Act.
Section 72 of the SRCA requires that Delegates, in deciding the above matters, shall be guided by 'equity, good conscience and the substantial merits of the case, without regard to technicalities'. The term 'technicalities' refers only to matters of minor bureaucratic import (e.g. an old accident report made on a superseded form, etc.), and does not refer to matters of doubtful or missing evidence.
Section 72 also provides that Delegates are not bound by those formal rules of evidence, which would apply during a hearing conducted by a civil court. This means that the Delegate in deciding the matter, may take into account all available evidence regardless of origin, and is not restricted to considering only those issues presented by the claimant. Thus, Delegates are required to actively investigate the claim.
Claims are in fact decided on the basis of all independent evidence available to a Delegate, and not on the basis of conjecture or supposition or only on the basis of unsupported (i.e. unverified) assertions by the claimant.
Liability to pay compensation does not exist simply because of an allegation of an injury and lodgement of a claim for compensation. All matters arising under the SRCA require the Delegate to be satisfied that it is reasonable and appropriate to find the Commonwealth liable to pay compensation in a particular case before actually determining liability in the claimant's favour.
If the Delegate is satisfied, by the evidence available in a particular case, that liability can or should reasonably be found in the claimant's favour, then it is appropriate to do so. However, if after having made sufficient efforts to investigate and establish the circumstances of the accident, the Delegate is not satisfied, either that an injury was sustained as claimed, or that a medical condition suffered by the claimant is probably the result of such an accident (if it probably occurred), then the Delegate has a duty to the Commonwealth to deny liability to pay compensation under the SRCA. Of course the claimant should be allowed a final opportunity to provide evidence to support the claim and the Delegate must provide reasons for their decision should they be denying a claim. The reconsideration and appeals processes for which the SRCA provides exist to be used by claimants in this type of situation, or in relation to any decision with which the claimant (or the Commonwealth) may disagree.
The Tribunals and the Courts frequently make judgements in the matters they hear regarding the veracity of applicants and witnesses and of the weight which should properly be accorded to any evidence they give or statements they may make. Similarly, Delegates have a right to satisfy themselves as to the truthfulness of a claimant and the merit of any statements or claims that the claimant may make. Some claimants may have proven themselves to be unreliable witnesses or not always truthful in the claims they make. In such a situation, it may be appropriate to deny liability for a particular claim. On the other hand, if a claimant has in the past shown himself/herself to be open and honest in his/her dealings with the RCG, more credence might reasonably be given to any statement or claim that that claimant may make.
Just as it is appropriate to allow a claimant an opportunity to provide evidence to support a claim for compensation (particularly where it is proposed to deny or to cease liability), so too is it appropriate, in some circumstances, to allow the Commonwealth an opportunity to object to a finding of liability if it wishes to do so.
For the purposes of liability investigation, Delegates have the following powers:
1.Under S58 of the SRCA: The power to require the production of relevant documents or information in the possession of the claimant.
2.Under S57 of the SRCA: The power to require a medical examination by a doctor of the Delegate's choosing.
3.Under the Cabinet-approved arrangements which saw RCG transferred from Defence to DVA: Access to all relevant documents and information held by the Department of Defence. Note: The practicalities of access to ADF medical files and who is responsible for seeking documents thereon is discussed further at part 9.2 [14] of this Handbook.
In assessing the unclear or apparently contradictory evidence relating to liability, the Delegate's judgements must be based on the civil standard of proof, i.e. 'on the balance of probabilities'. Note that none of the compensation Acts (except MRCA) permit the VEA test of 'reasonable hypothesis' for any category of employment. The 'balance of probabilities' test, which applies in all military workers compensation cases in fact, excludes guesses, conjectures or hypotheses. On the contrary, the matter contended must be demonstrated to be 'more likely than not'.
Delegates should also be guided by the long-standing principle that the compensation Acts have been established for the benefit of the employee – i.e. it is 'beneficial legislation'. This means if, after the above 'probability test', the employee's case remains indeterminate (i.e. where issues are finely balanced and involve contradictory evidence of apparently equal weight) the employee may be given the benefit of the doubt.
This principle definitely does not operate in the absence of independent evidence supportive of the employee's case. Applications which founder upon the absence of (or inadequacy of) supporting evidence should be decided in the negative.
Note also that it is the Delegate (i.e. you) and not some other party, who must be satisfied as to the likelihood of a particular assertion. As a Delegate you are expected to use your judgement and discrimination to interpret the evidence and investigate the contentions put to you. You are not 'processing' so much as investigating and subsequently judging a claim for compensation. The act of seeking evidence (i.e. via medical reports etc.) is to provide you with information to make an informed decision. The significance of the act of investigation is dependent upon your judgement of the worth of the evidence recovered, and is not merely that the inquiry can be said to have been made.
Delegates must decide cases in a manner consistent with the legislation, with RCG policy instructions and with the guidance of this Handbook. However, within those parameters (particularly those of S72 of the SRCA), Delegates have wide discretion and may weight or discount the significance of particular items of evidence in accordance with their own judgement and reason, rather than the expectations of advocates. Similarly, Delegates following correct guidelines should not be induced to trim their own judgement to 'second guess' a possible future decision or to conform with what an employee or advocate alleges would be found by a reconsideration or review.
Liability to pay compensation only persists while the injury continues to give rise to medical consequences. For those injuries which do not produce ongoing or permanent impairments, payment of compensation ceases when the medical condition has been 'cured' and the client is no longer incapacitated or impaired by the accepted condition. Cessation of payments may also occur where a non-compensable condition has overtaken the compensable one. For instance there would be no liability to pay compensation for loss of movement in the fingers of one hand if a later (non service-related) accident resulted in the amputation of that whole arm.
Cessation of payments due to these sorts of factors arises out of the general administration of the case and are discussed in each of the relevant compensation chapters..
There is an important difference between acceptance of Liability at the first instance following investigation of the original claim and ongoing liability to pay compensation or provide rehabilitation during the life of the client. Once 'initial liability' is accepted it can only be reversed in the exceptional circumstances outlined below. However, the client may have no entitlement to for example medical treatment or compensation if at that particular time they are not suffering the effects of the accepted condition.
The Court in Lees v Comcare found five factors which need to be present in order for a case to be accepted under s 14 (i.e. initial liability accepted):
First, that an appropriate notice of injury has been given to the relevant authority as required by s 53 of the Act; secondly, that a claim for compensation has been made as required by s 54 of the Act; thirdly, that the person who made the claim or on whose behalf the claim was made was an "employee" at the time of the alleged injury (ss 4 and 5); fourthly, that the employee suffered an injury (s 4); and finally, that the injury has resulted in death, incapacity for work or impairment.
In the case of Australian Postal Corporation v Ouyden it was clear that only those cases that do not meet all five factors above may be reversed. The Court said:
A determination on reconsideration that one or more of the elements did not exist is a determination that there was at no time a liability under s 14 of the Act to pay compensation for the particular injury. The position is different to, and to be contrasted with, the situation where a benefit is being paid under a particular section, in consequence of a determination having been made under s 14.
Therefore, liability may be reversed:
1.By a reconsideration Delegate (or the AAT) after review of the original decision, i.e. a formal re-determination of the case at the client's request. Section 62 reconsiderations are dealt with in the 'Reconsiderations and Appeals' section in Volume 1 of this Handbook.
2.By an ordinary Delegate discovering that an earlier decision was made an error. While Delegates have the power to redetermine matters 'on own motion' i.e. independently of the formal reconsideration process, you should be fully aware of the consequences of that action. Delegates considering such an action should not do so lightly. You are encouraged to discuss the matter with RCG policy personnel before taking action. Reconsideration decision 'on own motion' can only be made at the APS6 level.
3.The main points to consider when reversing liability are:
However, this should not be read as discouraging the practice of correcting errors where these occur. That is the duty of a Delegate. RCG in fact requires locations to conduct a program of regular or ongoing reviews to detect faulty decisions as well as cases where circumstances have since changed. However, care must also be taken to minimise disadvantage to clients and embarrassment to RCG.
Where a client has advised RCG that he/she retains the services of a lawyer or some other representative, Delegates are obliged to conduct the case with that representative. That means you may only initiate contact with that client – i.e. via RCG correspondence and phone calls – through that representative. Chapter 23 of the General Handbook has further information on these dealings.
In those cases where it is the client who initiates the contact, you should NOT refuse to give the client direct service, i.e. on the spurious grounds that they are represented and you are therefore prohibited from talking to him/her, in fact you are not. Note that it is the client who retains (employs) the lawyer or engages the ESO representative not the other way around. If the client chooses not to use his/her representative on that occasion, he/she is perfectly at liberty to do so, and you have a responsibility as a Delegate to deal with that person. The decision to deal with you personally or through a representative on any occasion is the client's alone.
On receipt of such a phone call, you should therefore:
However, on receipt of a letter directly from the client, you should not initiate any phone call or correspondence directly back to the client, but direct your reply, together with a copy of the client's correspondence, to the representative.
On occasion, clients with more than one claim may instruct a lawyer in one of those cases but continue to deal directly with RCG in respect to the others. In those cases, you should request that the client writes to you clarifying exactly which matters are in the hands of the representative. Following that advice, you should keep the various matters as separate as possible and apply the 'exclusive contact' rules only in respect of cases in which the client has instructed his/her lawyer.
Last amended: 28 March 2013
It is the duty of all delegates to determine all claims for compensation in an accurate and timely manner. The accuracy of determinations is not negotiable. No compromise can be accepted in the degree of care and diligence in deciding any entitlement under the Act. Claims assessors should always aim to meet the targets for time taken to process of 75 days for the VEA and 120 days for the SRCA and MRCA. Where possible, the assessment of claims should commence as soon as possible after receipt and the regular ongoing management of those claims conducted in a reasonable timeframe. To achieve this it is important that both the claims assessors and their managers closely monitor the claims that are received and on hand to ensure a good awareness of the status of claims and circumstances of the clients. The principles to be applied to claims processing to assist in achieving this goal are as follows;
In some cases however, the urgency associated with the matter means that a claim must be dealt with ahead of older claims and significant attention needs to be given to obtaining the necessary information to make a determination. This is a judgement call for the delegate and/or the manager based on the degree of personal distress, financial hardship and medical or rehabilitation concerns of the client.
Priorities need to be attributed by the claims assessor and their manager, and based on the circumstances of the claim at the time of receipt and allocation. These priorities will need to be regularly reviewed during the progress of the claim where changes to the claimant's circumstances may provide a greater urgency. This regular review can be conducted as part of the case conferencing process between claims assessors and their team leader or Director/Manager.
Effort should always be made to ensure the determination of claims within the target period. To ensure this, the commencement of the assessment of the claim must occur within 7 days of assignment to a claims assessor. In some cases claims may take longer to determine due to a number of factors such as non-availability of relevant information or being held within ongoing backlogs. However, claims that have encountered difficulty during assessment must be highlighted as part of a regular case conferencing process. It is during this process that claims nearing the target for processing may be raised to a higher priority.
The other principle in determining any priority is the needs of the client. All clients will have differing needs and expectations, but some clients' circumstances will involve a greater urgency than others. These may be based on the requirement to meet financial/medical/mental health/rehabilitation needs and to alleviate immediate distress so that the client's circumstances and requirement for benefits are met. Guidance on the circumstances in which a claim may be considered as a higher priority is detailed below. In some cases the client's circumstances can change over the course of consideration of a claim. Claims assessors must be aware of the changing circumstances of a client and, if required, reassess the priority for consideration of the claim.
Initially the priority will be assessed through the process of initial assessment of the claim and assignment to a claims assessor. However, the urgency of a claim can change in the process of determination and so the support of team leaders or the regular case conferencing process should be used to ensure that the correct priorities are regularly reviewed and identified.
The following provides guidance on the circumstances that may result in a claims assessor determining that a claim needs to be considered as a higher priority.
Some of the cases handled by the Client Liaison Unit and/or Case Co-ordinators will be considered under this priority, but it should be noted that these are potentially high profile cases as well.
It is important to take into consideration whether the member is being medically discharged and /or has chosen to have their separation from the ADF Held-In-Abeyance (HIA) pending determination of liability for the compensation claim. If HIA has been chosen, the financial hardship prospect is not as great as previously with the separation held until DVA have determined liability. However, if a member elects to be HIA and fails to submit their claim and/or is obstructive in the claims process, then the ADF may elect to separate the member regardless of the claim status. Also for the purpose of appeals ADF members will not be HI — A.
Part of the consideration with this priority should take into account the commencement/continuation of medical treatment and an appropriate rehabilitation program particularly vocational rehabilitation.
The recommendation that the member's compensation claim be highlighted as a priority for consideration by DVA will be passed to the ADF decision maker as part of the review of the person's employment status, or as part of the ongoing management and review of wounded, injured and ill members. The recommendation will be accompanied by a Defence WebForm which contains the following:
Links
[1] https://clik.dva.gov.au/user/login?destination=node/20318%23comment-form
[2] https://clik.dva.gov.au/user/login?destination=node/20256%23comment-form
[3] https://clik.dva.gov.au/user/login?destination=node/20444%23comment-form
[4] https://clik.dva.gov.au/user/login?destination=node/20097%23comment-form
[5] https://clik.dva.gov.au/user/login?destination=node/20494%23comment-form
[6] https://clik.dva.gov.au/user/login?destination=node/20252%23comment-form
[7] https://clik.dva.gov.au/user/login?destination=node/20518%23comment-form
[8] https://clik.dva.gov.au/user/login?destination=node/20141%23comment-form
[9] https://clik.dva.gov.au/user/login?destination=node/20117%23comment-form
[10] https://clik.dva.gov.au/user/login?destination=node/20173%23comment-form
[11] https://clik.dva.gov.au/user/login?destination=node/20496%23comment-form
[12] https://clik.dva.gov.au/user/login?destination=node/20208%23comment-form
[13] https://clik.dva.gov.au/user/login?destination=node/20424%23comment-form
[14] https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/liability-handbook/ch-9-defining-injury/92-need-clear-and-accurate-diagnosis
[15] https://clik.dva.gov.au/user/login?destination=node/20470%23comment-form
[16] https://clik.dva.gov.au/user/login?destination=node/20491%23comment-form
[17] https://clik.dva.gov.au/user/login?destination=node/20448%23comment-form
[18] https://clik.dva.gov.au/user/login?destination=node/20209%23comment-form
[19] https://clik.dva.gov.au/user/login?destination=node/20267%23comment-form
[20] https://clik.dva.gov.au/user/login?destination=node/20322%23comment-form
[21] https://clik.dva.gov.au/user/login?destination=node/20132%23comment-form
[22] https://clik.dva.gov.au/user/login?destination=node/20216%23comment-form
[23] https://clik.dva.gov.au/user/login?destination=node/20479%23comment-form
[24] https://clik.dva.gov.au/user/login?destination=node/20371%23comment-form