Deaths from accepted conditions are often the simplest to determine, because the nexus with the condition alleged to produce the death has already been tested and accepted. However delegates will still have to confirm on the basis of the death certificate or by means of other medical advice, that the condition (i.e. for which the Commonwealth had previously accepted liability) resulted in death.
A separate D2020 claim form is not required in respect of the death as liability has already been accepted in respect of the 'injury' which has now resulted in death. Delegates are provided with a specific claim form for funeral expenses and death compensation (D9182), presented as one of the standard letters in the Defcare Standard Letter database. This claim form has been designed primarily to cope with the typical 'nuclear family' situation where the informant will be a spouse living with the client at the time of death. The form acknowledging entitlement and acceptance of payment at the end of the assessment process is deemed to be a sufficient application for the death lump sum.
The link between accepted condition and death is undertaken primarily by two means:
In some cases, delegates may require further confirmation or explanation as to the relationship between the accepted condition and the official cause of death. This additional medical advice may be required when, for example:
1.the degree of contribution of the compensable condition to the cause of death on the death certificate is not clear, and
2.the doctor attending the death and signing the death certificate (who may not have been the treating specialist) has given an explanation of that nexus which is unsatisfactory and/or apparently beyond the scope of his/her expertise and specialty.
Having established that the accepted condition was the cause of death or a significant contributor thereto, the delegate then needs to investigate the identity of the 'dependants' in this case, and the degree to which each was 'dependent' upon the deceased employee
Virtually all claims for deaths after discharge will relate to a disease rather than a simple injury. For a death benefit to be payable in respect to a death certified to be from that disease, that disease must have been materially (or significantly where date of diagnosis is on/after 13 April 2007) contributed to by ADF employment.
In effect, the case has become one of 'initial liability' for the causative injury/disease. Delegates faced with these cases should apply the principles and procedures contained in this Handbook's chapter on 'Initial Liability'.
However, as S57 examinations have been precluded by the death, medical opinion on causation of those diseases not caught by S7(1) of the SRCA will be restricted to Service medical records (and, possibly, retrospective opinion by any relevant medical specialists who had treated the client since discharge).
Having established that the certified cause of death had the required nexus with ADF employment, no separate determination on 'initial liability' is necessary.
Deaths in service will in almost all circumstances be covered under the Military, Rehabilitation and Compensation Act 2004 (MRCA). However, in some circumstances a member may be suffering from a condition which is as a result of SRCA service, but dies during MRCA service.
For example, a member who suffers from cancer that has been materially or significantly contributed to by SRCA service pre 1 July 2004. Sometime later they die from cancer whilst on duty. At first the delegate should investigate whether the death can be accepted under the MRCA. Refer to the MRCA Death and Liability Chapters for further guidance. If the death cannot be accepted under the MRCA, the delegate should then look at a connection to SRCA service – that is the death was a result of a condition that can be accepted under the SRCA. Whilst the following comments will more often relate only to MRCA death cases, it is still important to bear them in mind for any death in service no matter which Act is covered.
'In service' deaths have some other distinguishing features which impact on the liability investigation process as follows:
Where a member dies whilst on duty there will be at the very least an assessment inquiry by the CO of the unit, and almost certainly a person appointed to investigate and report on the circumstances surrounding, or leading to, that death. Furthermore, there may well be a more formal Defence Board of Inquiry under the auspices of the Defence (Inquiry) Regulations. The CO of the unit is also constrained by instructions under ADFP202 to inform ADF 'higher authority', the civilian police and the coroner, and all of those organisations may, at their discretion, conduct their own investigations.
The Administrative Inquiries Manual, (ADFP202) at Chapter 2 – relating to 'quick assessments' – says:
Accidental death of Australian Defence Force members 2.6
2.6 An accident involving the death of one or more ADF members involved in ADF activities is to be reported to higher authority immediately. The Chief of the Defence Force or Service Chief, as appropriate, will refer the matter to the Minister to determine whether the appointment of a General Court of Inquiry or a Board of Inquiry is warranted. The deaths of ADF members on duty are also to be reported immediately to civilian police and the relevant State or Territory coroner. A liaison officer is to be appointed to assist the coroner.
Inquiries conducted by the ADF may be wide ranging and involve matters for which public disclosure may transgress personal privacy or ADF security. Thus, not all details may be released to delegates in all cases. Nevertheless, it is reasonable to expect that the conclusions of that inquiry or at least those portions impacting on the Commonwealth's compensation liability be communicated to the delegate. The reports of a formal Board of Inquiry or the proceedings of a Court-Martial, however, are public documents and it is expected that these complete documents should be released to delegates. Furthermore, in addition to this reasonable access to Defence's investigations about the death, it would be expected that the liaison officer appointed by the Unit CO in accordance with ADFP202 would also assist the delegate (i.e. in addition to that officer's duty to assist the coroner).
Failure of the unit to offer reasonable cooperation or information should be referred to Management for correction via the Defence/ADF chain of command.
Delegates should initiate all requests for documents and other information through DVA's Single Access Mechanism (SAM) team. In cases of death it may then be appropriate to directly deal with those areas of the ADF dealing with the member's case. Generally the ADF will appoint a liaison officer and the delegate should deal with them and the Defence Community Organisation (DCO) in respect to the welfare of the deceased's dependants. It may be helpful for the dependants if the DCO or liaison officer is informed about the Department's evidentiary needs with respect to the claim.
Sometimes the first Departmental/spouse contact may actually be initiated by the spouse. However where it is up to the delegate to take initiative, the initial contact with dependants living with a deceased serving member should always be performed through the unit, or alternatively by clearing that initial contact with the unit chaplain or with the Defence Community Organisation (DCO) first.
Later contacts may then be made directly, unless those family members are so distressed that it seems preferable to continue to transmit compensation information or the delegate's questions only via DCO or the unit's other personal support resources.
As discussed in subsection 1.1 [9] of this handbook, the criteria for investigating whether a death occurred in compensable circumstances are essentially the same as for any other grade of injury or disease. That is, the death must be shown to have resulted from a compensable injury (including disease).
This means that in general, the procedures set out in this Handbook's chapter on 'initial liability' should also be applied to investigations of deaths.
Note that the SRCA, although primarily a 'no fault' Act, provides for a number of circumstances where the actions of the employee are deemed to have excluded him/her from compensation. These exclusions are summarised at Parts 82 to 98 of the Initial Liability chapter of this Handbook. In brief, deaths arising from a reaction to reasonable disciplinary action, failure to obtain promotion transfer or benefit from employment, a condition concealed at enlistment or from a self inflicted injury are non-compensable and do NOT attract the Death benefit.
ALSO
There are also similar exclusions from compensation (re: S14(3) and S6(3) of SRCA) for:
but these particular exclusions are waived by the Act where 'the injury results in death, or serious and permanent impairment'.
Note: This concession does not apply to the other exclusions listed above (discipline, self inflicted etc.).
Note that by virtue of the definition of 'injury' at S4(1), those injuries contributed to by alcohol are deemed to have arisen from serious and wilful misconduct. Thus:
Section 17 of the DRCA (Compensation for injuries resulting in death) sets out the circumstances in which the Commonwealth is liable to pay compensation for ‘an injury to an employee [that] results in death’.
When considering whether the Commonwealth is liable to pay compensation under s 17(1) in relation to a veteran’s suicide, it will be necessary to determine whether the injury that resulted in the veteran’s death is excluded under s 14(2) of the DRCA.
Subsection 14(2) of the DRCA says:
Compensation is not payable in respect of an injury that is intentionally self‑inflicted
Note that, unlike the MRCA, the DRCA contains no waiver of this exclusion if the intentionally self-inflicted injury results in death or serious and permanent impairment.
However, this does not mean that an injury that resulted in a veteran’s death by suicide or attempted suicide should always be excluded under s 14(2). In some circumstances an injury resulting in death may not have been ‘self-inflicted’ for the purposes of s 14(2), and in others, the individual may have lost volition such that the injury cannot be taken to have been ‘intentionally’ self-inflicted for the purposes of s 14(2).
Overview
In order for subsection 14(2) to apply, three requirements must be met:
If any of these requirements are not met, the exclusion set out in s 14(2) does not apply to the claim.
1. Injury
In order for the Commonwealth to be liable to pay compensation under s 17(1) in respect of a veteran’s suicide, the death must have resulted from an ‘injury’ as defined in s 5A of the DRCA. This includes “a physical or mental injury arising out of, or in the course of,” a veteran’s service, except where it arose “as a result of reasonable administrative action taken in a reasonable manner”.
When considering whether an injury was present, it is important to take into account all injuries of this kind which were present at the time of death by suicide and which may have contributed to the death by suicide.
If the injury has not been accepted under the DRCA prior to the death, a service related injury contributing to the death may potentially be established via the posthumous mental health diagnosis policy, see CM6267 Guideline for Operation of Posthumous Psychiatric Diagnosis Panel | Compensation and Support Reference Library, Commission Guidelines (dva.gov.au) [11].
If a veteran’s death did not result from an ‘injury’ as defined in s 5A of the DRCA then s 14(2) will not apply to the claim. However, the veteran will also not be entitled to compensation under s 17 of the DRCA due to the absence of an ‘injury’.
However, if the death did result from an ‘injury’ as defined in 5A, the next step is to consider whether all contributing injuries were self-inflicted.
2. Self-inflicted
When considering whether a contributing injury was self-inflicted, it is important to remember that the injury in question is the service-related injury or injuries identified in step 1. Even though other injuries may be present which contributed to the death by suicide, only those which meet the definition under 5A are considered in relation to s 14(2).
It is important to remember that while a death by suicide clearly involves a self-inflicted injury, it is possible that a veteran:
Ultimately, it is possible that an injury can have resulted in a veteran’s death even in the presence of another fatal self-inflicted injury, so long as there is a sufficient connection between this previous injury and the veteran’s death.
For example, a veteran could have incurred a significant depressive disorder injury that arose from, or in the course of their service. This depressive disorder injury was not self-inflicted and is not excluded under s 14(2) of the DRCA. If this injury materially or significantly contributed to the death of the veteran then both the self-inflicted injury that directly ended the veteran’s life and the depressive disorder injury could be taken to have resulted in the veteran’s death. While the self-inflicted injury may be excluded under s 14(2), the depressive disorder injury is not excluded and, should the depressive disorder have contributed to the death then the Commonwealth may then be liable to pay compensation under s 17 of the DRCA in respect of a death arising from this depressive injury.
This was, essentially, the factual circumstance in the Administrative Appeals Tribunal (Tribunal) matter of Sadlo and Comcare [2005] AATA 1006 (Sadlo). In Sadlo, the Tribunal found that a work related depressive disorder injury caused the employee’s death, for the purposes of s 17 of the DRCA, notwithstanding that the employee had committed suicide.
A common-sense approach should be taken to considering the causal chain and the question of whether a particular injury resulted in a veteran’s death. Delegates should be aware that the presence of intervening links in the chain or other contributory causes of death does not necessarily preclude a finding that a previous service-related injury contributed to and resulted in the veteran’s death.
Taking into account all of the above, if the injury (or one of the injuries) contributing to the death was not self-inflicted then it is not excluded under s 14(2). If it was self-inflicted, it needs to then be considered whether this was intentional.
3. Intentional
Whether the injury was intentionally self-inflicted only becomes a consideration in relation to s 14(2) if it has already been established that:
If either of those facts have not been established, s 14(2) already does not apply and the question of intentionality is irrelevant.
An injury may not be intentionally self-inflicted where there is a demonstrated loss of volition such that the veteran was unable to understand or appreciate the consequences of their actions.
In some circumstances an injury inflicted by the veteran's own hands may be deemed not to be intentional, by virtue of them having – due to a compensable mental disease – lost the power of volition (intention) i.e. the power to make a decision or exercise their will in relation to living or dying. In such a case, the injury would not be excluded under s 14(2) and the Commonwealth may be liable to pay compensation for the death or injuries arising from suicide or attempted suicide
It is not the case that the fact of a suicide attempt or suicide demonstrates, of itself, a loss of power of volition. This circular argument cannot be admitted, even when presented by a medical practitioner.
In Re Pamela McLaren and Comcare [1992] AATA 202, the AAT found that the question was 'has the workman's mind become so unhinged as to dethrone his power of volition' (citing Church v Dugdale & Adams Ltd (1929) 22 BWCC 444 [12]). On the facts of this case, the Tribunal found that ‘the work related stress and major depressive illness [was such that] he was no longer able to choose whether he would or would not continue to live or whether he could or could not restrain the temptation to suicide' (at [17]).
The state of the veteran's mind is a question of fact. Such factual findings can be made with reference to expert opinion, such as by a psychiatrist. An expert opinion about the veteran’s state of mind including, specifically, an ability to form an intention, should (where possible) be based on a psychiatric examination conducted shortly before the death by suicide or suicide attempt to give the delegate an indication of the veteran's prior mental health. Where this is not available, there should be other evidence that can be assessed by an expert.
Provided all other steps have indicated the injuries or disease(s) resulting in death was an injury and self-inflicted and intentional, in the absence of an informed expert opinion about the veteran's state of mind and loss of volition, the delegate should find that the suicide or attempted suicide was the result of an intentional, self-inflicted injury that is excluded under s 14(2).
No determination about liability or compensation for Death may be made unless the delegate has been provided with a copy of the death certificate. It must be considered mandatory for death claims.
Death certificates are essential for two reasons:
Provision of death certificates to validate a claim is analogous to the provision of a medical certificate demonstrating an injury for other classes of claim. It is the claimant's responsibility to provide that death certificate. Delegates should however provide reasonable assistance particularly where the dependant/claimant is either distressed or under some disability (i.e. is a child).
Links
[1] https://clik.dva.gov.au/user/login?destination=node/20691%23comment-form
[2] https://clik.dva.gov.au/user/login?destination=node/20610%23comment-form
[3] https://clik.dva.gov.au/user/login?destination=node/20616%23comment-form
[4] https://clik.dva.gov.au/user/login?destination=node/20663%23comment-form
[5] https://clik.dva.gov.au/user/login?destination=node/20620%23comment-form
[6] https://clik.dva.gov.au/user/login?destination=node/20712%23comment-form
[7] https://clik.dva.gov.au/user/login?destination=node/20589%23comment-form
[8] https://clik.dva.gov.au/user/login?destination=node/20651%23comment-form
[9] https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-1-legislation-and-definitions/11-compensation-injuries-resulting-death-s17-srca
[10] https://clik.dva.gov.au/user/login?destination=node/20650%23comment-form
[11] http://auth-clik.dvastaff.dva.gov.au/compensation-and-support-reference-library/commission-guidelines/cm6267-guideline-operation-posthumous-psychiatric-diagnosis-panel
[12] http://www.austlii.edu.au/cgi-bin/LawCite?cit=%281929%29%2022%20BWCC%20444
[13] https://clik.dva.gov.au/user/login?destination=node/20609%23comment-form