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 [3]' [3].
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 [4].
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 [7].
Links
[1] https://clik.dva.gov.au/user/login?destination=node/20682%23comment-form
[2] https://clik.dva.gov.au/user/login?destination=node/20674%23comment-form
[3] http://www.dva.gov.au/sites/default/files/dvaforms/D9182.pdf
[4] https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/liability-handbook/ch-6-claims-compensation/63-claim-format
[5] https://clik.dva.gov.au/user/login?destination=node/20675%23comment-form
[6] https://clik.dva.gov.au/user/login?destination=node/20626%23comment-form
[7] 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