Last amended: 21 March 2013
Claims for compensation in respect of death can be usefully divided into two types:
Since the introduction of the Military, Rehabilitation and Compensation Act 2004 (MRCA), most deaths covered under the SRCA will be as a result of diseases related to SRCA service.
Section 54 of the SRCA provides that no compensation is payable under that Act except where there has been a written claim 'in accordance with the form approved by Comcare'. The form currently approved by the Military Rehabilitation and Compensation Commission (MRCC) in lieu of Comcare is the DVA Form D9182: 'Claim for compensation of Funeral expenses and/or Compensation following death for Dependants of deceased members and former members of the Australian Defence Force [4]' [4].
While section 54(5) provides that strict compliance with an approved form is not required and substantial compliance is sufficient, DVA would need to ensure there was sufficient information provided by the claimaint to enable reasonable investigation and determination of the claim. For more information about lodgement of claims refer to Chapter 6.3 of the SRCA Liability Handbook [5].
Where a death results from an 'injury' (including a disease) for which the Commonwealth has already accepted liability, the D9182 is required as it provides details of both the reason for death and dependency aspects of the claim. In this situation no investigation into the nexus with employment is necessary. However, the delegate must be satisfied, on the balance of probabilities that there is a causal connection between the accepted condition and the death. The test is still that death must have arisen out of, or in the course of employment, or in cases of death from disease, be materially contributed by service. As liability for the condition has already been established, to satisfy the connection between service and the death, the delegate need only be satisfied that the death was as a result of the accepted condition.
Where a D9182 is lodged and the deceased had no prior claim for a disease or injury which contributed to the death, that is, a 'new' case involving death by an injury not previously investigated for liability, payment of compensation must be preceded by a full liability investigation. Such cases follow the same general initial liability process for injury or disease, and the D9182 must be lodged.
A grieving spouse may not be in a position to deal with the Commonwealth's paperwork immediately after the death. Nevertheless, the advancement of claims for death (and the provision of financial support to dependants as soon as possible) has the highest of all of the MRCC's priorities. In such circumstances, a delegate should be prepared to advance the investigation and the D9182 facilitates this process.
Claims relating to a death (i.e. 'injuries resulting in death') initially resemble other claims for injury or disease. The processing and investigation of new injury and disease claims is dealt with at length in the 'Initial Liability' chapter of this Handbook. Delegates should first turn to that chapter and follow those procedures, so as to establish whether there is a sufficient nexus between the death and ADF employment to determine 'liability'.
Please Note:
Delegates are reminded that it is DVA policy to take every appropriate action to avoid unecessary duplication of claims and, as much as possible, to simply the claims process for bereaved family members. There is no capacity to register a Permanent Impairment (PI) investigation, determiantion or payment once a death claim has been opened. Therefore, a separate liability claim record and determination may be registered to enable the PI claim to be processed and s24 payments made.
The PI liability investigation may rely on the connection to service established through investigating the death claim.
It will still be necessary for a specialist to ascertain a level of impairment prior to the client’s death. Obviously the client can no longer be examined, estimates will, therefore, have to be made on the basis of any earlier assessments undertaken (if possible).
It is also important to remember that while section 55 of the SRCA does not prevent a posthumous claim being lodged by a person with the appropriate authority to do so, subsection 55(4) is very clear that no payment can be made against the claim for non-economic loss (s27) after the person’s death.
For information relating to Voluntary Assisted Dying, please see 7.2.1 Voluntary Assisted Dying [8].
As related above, many deaths will (at least initially) be notified to the Department informally, for instance via a telephone call by a relative who may or may not be a dependant or by contact from ADF personnel. Telephone contact by a senior NCO from the deceased member's unit is the common method of initial notification where the death occurred in service.
Delegates should note that in death cases, the identity of persons entitled to a benefit or even entitled to claim is not always clear at the time of the death. Clarification of this point is one of the objects of any investigation. It is not always clear who to encourage to submit a claim, nor are such persons always in a state of mind which would permit them to submit a formal claim soon after the death.
With respect to late claims for compensation – i.e. those made years after the death – the guidance given at Parts 17, 18 and 19 of the Initial Liability chapter of this Handbook may be relevant, but delegates should not under any circumstances attempt to deny claims of the dependants of a person (particularly dependants of an employee who died after discharge) merely on the basis that the notification was late. The merits of the case must be judged on the basis of the evidence relating to relationship and economic dependency rather than compliance/non-compliance with the notification provisions of the Act.
Progression of compensation cases potentially involving payment of a death benefit represents the highest priority claim process. It is to be given the delegates full attention in preference to all other types of claim or requests for benefit. The reason for this status lies in the need to provide financial support to persons who have had income (and perhaps access to an ADF residence etc.) suddenly removed by the death.
Deaths for which compensation is only claimed years after that death are of course not in the same urgent category, unless the dependant can demonstrate that he/she is currently in dire need. Nevertheless, delegates should investigate all such claims as quickly as possible.
Nothing in the above Part 2.3 [12] about the urgency of claims for recent deaths should be taken to imply that speed is preferred to accuracy in cases where there is a conflict between the two. In fact, the correctness of the final determination is absolutely vital to Death cases and should be regarded as paramount to all other considerations.
Subsection 17(10) of the SRCA says:
Ss17(10) Where claims for compensation under this section are made by or on behalf of 2 or more dependants of a deceased employee, Comcare shall make one determination in respect of those claims
Claims made by or on behalf of 2 or more dependants of a deceased employee may be made on 1 or more Claim for compensation of Funeral expenses and/or Death Benefits for Dependants of deceased members and former members of the Australian Defence Force Forms but must all be determined at one time and in the same determination.
Section 56 of the SRCA also says:
S56 Where an amount is paid to, or in accordance with the directions of, a relevant authority under Subsection 17(3) or (4), for the benefit of a dependant of a deceased employee, by whom, or on whose behalf, a claim was made for compensation under Section 17, no other dependant of that employee is entitled to claim compensation under that section after the day on which that amount is so paid.
In fact the scheme of the Act is rather, that S17(3) and (4) provides a single lump sum only, and the delegate is constrained to make a single determination which makes a once-only division of that lump sum between all claimants.
However the reverse side of S56 is that, where the claim of a particular dependant with a good case for entitlement is not made known to the delegate before that once-only determination, there is no legislative basis to pay that person should they emerge at a later date. This situation has practical effect as instances have occurred in the past, particularly in relation to ex-nuptial dependent children.
Delegates should exercise particular care in determining who was financially dependent upon the deceased, to the extent of requiring details of persons to whom the deceased made pay allotments, or in respect of whom did the deceased contribute child support through the Child Support Agency etc.
In cases such as the above or in other cases involving the division of the SRCA lump sum between persons on the basis of claimed loss, delegates should guard against sacrificing the completeness of an investigation for the need to make an urgent determination. In cases of 'error' or where new claimants unexpectedly emerge, the only available corrective action is to withdraw and re-determine the original determination as a 'reconsideration on own motion' under S62. There is no prospect of awarding any more than the single maximum lump sum amount. Adjustments therefore inevitably require the recovery of funds from the earlier-known individuals who may have already spent that lump-sum share, thus causing a high degree of hardship and distress.
Links
[1] https://clik.dva.gov.au/user/login?destination=node/20617%23comment-form
[2] https://clik.dva.gov.au/user/login?destination=node/20682%23comment-form
[3] https://clik.dva.gov.au/user/login?destination=node/20674%23comment-form
[4] http://www.dva.gov.au/sites/default/files/dvaforms/D9182.pdf
[5] https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/liability-handbook/ch-6-claims-compensation/63-claim-format
[6] https://clik.dva.gov.au/user/login?destination=node/20675%23comment-form
[7] https://clik.dva.gov.au/user/login?destination=node/20626%23comment-form
[8] https://clik.dva.gov.au/military-compensation-mrca-manuals-and-resources-library/policy-manual/ch-7-compensation-death/72-need-accuracy-death-claims/721-voluntary-assisted-dying
[9] https://clik.dva.gov.au/user/login?destination=node/20665%23comment-form
[10] https://clik.dva.gov.au/user/login?destination=node/20613%23comment-form
[11] https://clik.dva.gov.au/user/login?destination=node/20621%23comment-form
[12] https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-2-claims/23-death-high-priority-claim