Claims for injuries are fairly straightforward as there is a discrete event that occurs at a period in time that dictates which Act applies. If the injury is prior to 1 July 2004 then it is VEA and or SRCA; if it is on or after 1 July 2004 then it is the MRCA.
Claims for diseases which develop over time, such as osteoarthrosis and psychiatric conditions, are not as straightforward. For these types of conditions, the determining consideration in regard to which Act applies is which period of service contributed to the development of the disease. It is important to remember that the MRCA allows for liability to be accepted where the contribution is before, and on or after 1 July 2004. For MRCA to potentially apply for this type of condition, the disease must either have onset or have been aggravated after 1 July 2004.
As a starting point, any disease that meets the above conditions should be considered under the MRCA first, regardless of the contention. The disabling provisions in the VEA and SRCA indicate that those Acts do not apply where there is a contribution from MRCA service.
If the disease cannot be accepted under the MRCA, only then would you consider whether it could be accepted under the VEA and/or SRCA.
Section 27 of the MRCA establishes that liability may be accepted where an injury, disease or death is a service injury, service disease or service death, because one of the listed heads of liability applies and the person was rendering defence service (as described in s6).
Section 27 establishes that an injury sustained or a disease contracted, by a person is a service injury or a service disease if one or more of the following heads of liability apply:
(a) the injury or disease resulted from an occurrence that happened while the person was a member rendering defence service;(b) the injury or disease arose out of, or was attributable to, any defence service rendered by the person while a member;
(c) in the opinion of the Commission:
(i) the injury was sustained due to an accident that would not have occurred; or
(ii) the disease would not have been contracted;
but for
(iii) the person having rendered defence service while a member; or
(iv) changes in the person’s environment consequent upon his or her having rendered defence service while a member;
(d) the injury or disease:
(i) was sustained or contracted while the person was a member rendering defence service, but did not arise out of that service; or
(ii) was sustained or contracted before the commencement of a period of defence service rendered by the person while a member, but not while the person was rendering defence service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service rendered by the person while a member after he or she sustained the injury or contracted the disease*;
Note: This paragraph might not cover aggravations of, or material contributions to, signs and symptoms of an injury or disease (see Repatriation Commission v Yates (1995) 38 Administrative Law Decisions 80). This is dealt with in section 30
(e) the injury or disease resulted from an accident that occurred while the person was travelling, while a member rendering peacetime service but otherwise than in the course of duty, on a journey:
(i) to a place for the purpose of performing duty; or
(ii) away from a place of duty upon having ceased to perform duty.
Section 61(d) of the MRCA defines defence service as including warlike, non‑warlike, or peacetime service rendered on or after 1 July 2004.
May initial liability be accepted under MRCA for a disease with a diagnosed clinical onset after 1 July 2004, where the applicable SoP factor is “having trauma to the affected joint before the clinical onset of osteoarthritis in that joint”, and where the trauma occurred rendering defence service prior to 30 June 2004?
No. Liability may only be accepted under MRCA where the disease was contracted on or after 1 July 2004, and relates to MRCA defence service. Where a SoP factor is of a type that is not ongoing, (e.g. a discrete event, such as trauma that occurred at a specific point in time), and which occurred prior to any MRCA service, then the claimed disease cannot be found to relate to MRCA service.
To accept liability under the MRCA where clinical onset of a disease occurs during a person’s MRCA service, delegates may wish to consider whether another SoP factor applies that either occurred only during the claimant’s period of MRCA defence service, or occurred during their defence service before, and on or after, 1 July 2004.
BACKGROUND
Section 7 of the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004 establishes that:
(1) The MRCA applies to a person’s injury, disease or death if:
(a) the injury is sustained, the disease is contracted**, or the death occurs, on or after the commencement date; and
(b) the injury, disease or death either
(i) relates to defence service rendered by the person on or after that date; or
(ii) relates to defence service rendered by the person before, and on or after, that date.
Note: After the commencement date, benefits stop being provided under the VEA and the SRCA for such injuries, diseases and deaths (see sections 9A and 70A of the VEA and section 4AA of the SRCA).
Liability for a ‘consequential’ condition may only be accepted under the SRCA or the VEA where there is no contribution to that condition from the claimant’s MRCA service (e.g. the member develops OA of the knee after 1 July 2004 and had only suffered a knee injury during SRCA service), and following consideration of whether the condition suffered by the claimant constitutes an injury, a disease, an aggravation (i.e. of either an injury or a disease), or a sequela to another injury or disease. Each of these different classifications has significance for its administration under the appropriate Act.
Liability for a disease with a clinical onset date on or after 1 July 2004 where there was any contribution by the claimant’s MRCA service, must be considered under the MRCA (for example the member develops OA of the knee after 1 July 2004 and had suffered a knee injury during SRCA service and another knee injury during MRCA service) Where the ‘trauma’ factor is being considered, and the trauma occurred during defence service rendered before 1 July 2004, delegates may wish to consider whether another SoP factor applies that either occurred only during the claimant’s period of MRCA defence service, or occurred during defence service before, and on or after, 1 July 2004.
Links
[1] https://clik.dva.gov.au/user/login?destination=comment/reply/80574%23comment-form
[2] https://clik.dva.gov.au/user/login?destination=comment/reply/80576%23comment-form
[3] https://clik.dva.gov.au/user/login?destination=comment/reply/80578%23comment-form
[4] https://clik.dva.gov.au/user/login?destination=comment/reply/80579%23comment-form