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Plain English Guide to the Military Rehabilitation and Compensation Act 2004This document is an unofficial explanation of the Military Rehabilitation and Compensation Act 2004 (MRCA) and is current as at 1 July 2006. The MRCA, the case law and any instructions made by the Military Rehabilitation and Compensation Commission can overtake any comment made in this document. A fuller explanation of the MRCA can be gained from the Explanatory Memoranda and the supplementary information provided during the Senate Inquiry and during the Senate debate. August 2006
CHAPTER 2 - ACCEPTING LIABILITY FOR SERVICE INJURIES, DISEASES AND DEATHS
CHAPTER 4 - COMPENSATION FOR MEMBERS AND FORMER MEMBERS
CHAPTER 5 - COMPENSATION FOR DEPENDANTS
CHAPTER 6 - TREATMENT FOR INJURIES AND DISEASES
CHAPTER 8 - RECONSIDERATION AND REVIEW OF DETERMINATIONS
CHAPTER 9 - THE MILITARY REHABILITATION AND COMPENSATION COMMISSION (MRCC) CHAPTER 10 - LIABILITIES ARISING APART FROM THIS ACT
GLOSSARY OF TERMSAdministrative Appeals Tribunal (AAT) The AAT provides independent review of a wide range of administrative decisions made by the Australian Government and some non-government bodies. This includes certain determinations made under the MRCA. For further information, see Chapter 8 of this Guide and the AAT’s website www.aat.gov.au . Consumer Price Index (CPI) The CPI measures quarterly changes in the price of a ‘basket’ of goods and services that account for a high proportion of expenditure by metropolitan households. This ‘basket’ covers a wide range of goods and services, arranged in the following eleven groups – food, alcohol and tobacco, clothing and footwear, housing, household furnishings, supplies and services, health, transportation, communication, recreation, education and miscellaneous. GARP GARP is a disallowable instrument made by the Repatriation Commission under section 29 of the VEA. It is used to assess the extent of war or defence-caused incapacity and convert this to the rate of disability pension payable to a veteran under the VEA. Currently the 5th edition of GARP is being used. GARP M GARP M is a modified version of GARP V. It is a disallowable instrument made by the MRCC under section 67 of the MRCA. It is used to assess the extent of a member’s permanent impairment which enables the calculation of the amount of permanent impairment compensation payable to a member. GARP M assesses permanent impairment in the same way as GARP assesses incapacity. Gold Card The Gold Card is the common name for the Repatriation Health Card – for All Conditions. This card enables the holder to obtain health care benefits for all conditions, whether they have been accepted as related to service or not. Income Support Supplement (ISS) ISS is an income and assets tested pension payable under the VEA to war widow/ers on the ground of age or incapacity for work. It is also payable under the VEA to widowed partners eligible for the MRCA death benefit. MRCA Pharmaceutical Benefits Scheme The instrument providing for this Scheme is a disallowable instrument made by the MRCC under section 286 of the MRCA. It is based on the Repatriation Pharmaceutical Benefits Scheme established under the VEA. The scheme provides a wide range of pharmaceuticals for the treatment of Gold and White Card holders under the MRCA. MRCA Private Patient Principles This document is a disallowable instrument made by the MRCC under section 286 of the MRCA. The MRCA Private Patient Principles are based on the Repatriation Private Patient Principles determined under the VEA. They contain the rules for providing private patient treatment to persons eligible for a White or Gold Card under the MRCA as private patients. This includes the rules about the provision of hospital treatment and specialist treatment. MRCA Treatment Principles This document is disallowable instrument made by the MRCC under section 286 of the MRCA. The MRCA Treatment Principles are based on the Treatment Principles made under the VEA. They set out the circumstances in which, and conditions subject to which, treatment, social and domestic assistance may be provided for persons eligible for treatment under the MRCA. Military Rehabilitation and Compensation Commission The Military Rehabilitation and Compensation Commission (MRCC) is a statutory authority responsible under the MRCA for determining claims for benefit under that Act. It also advises the Minister for Veterans’ Affairs on the MRCA’s operation and administers the MRCA subject to the Minister’s control. Repatriation Commission The Repatriation Commission is a statutory authority responsible under the VEA for determining claims for benefit under that Act. It also advises the Minister for Veterans’ Affairs on the VEA’s operation and administers the VEA subject to the Minister’s control. Repatriation Medical Authority The RMA is an independent statutory authority responsible to the Minister for Veterans’ Affairs. The RMA consists of a panel of five practitioners eminent in fields of medical science. Their role is to determine Statements of Principles (SoPs) for any injury, disease or death that could be related to military service, based on sound medical-scientific evidence. The RMA is supported by a secretariat of clerical, medical and research staff. For further information, visit the RMA’s website www.rma.gov.au . Safety, Rehabilitation and Compensation Act 1988 (SRCA) The SRCA is the legislation under which rehabilitation, compensation and treatment is provided to Australian Government employees who suffer injury or disease as a result of their employment. It also provides compensation for their eligible dependants for work-related death. This includes ADF peacetime service before 1 July 2004 and warlike and non-warlike service between 7 April 1994 and 1 July 2004. The DVA administers the SRCA as it relates to ADF service. Statements of Principles The SoPs state the factors which must or must as a minimum exist to cause a particular kind of disease, injury or death. The SoPs are disallowable instruments and they are binding on the various decision-makers. The matters of fact relating to an individual’s claim, including the nature of service and any connection between eligible service and the factors in the SoPs, are still determined by the various decision-makers. Veterans’ Entitlements Act 1986 (VEA) The VEA is the legislation under which compensation, treatment, some rehabilitation and income support is provided to veterans of the ADF and their eligible dependants for injury, disease or death related to service rendered before 1 July 2004. The VEA mostly covers veterans of the ADF with service in wars, warlike and non-warlike operations (including peacekeeping operations) but peacetime service between 7 December 1972 and 8 April 1994 is also covered. The VEA is administered through the DVA. For further information, visit the DVA website at www.dva.gov.au. Veterans’ Review Board The Veterans’ Review Board (VRB) is an independent tribunal that exists to review decisions made by the Repatriation Commission under the VEA and decisions under the MRCA made by the MRCC and Service Chiefs. For further information, visit the VRB’s website www.vrb.gov.au. White Card White Card is the common name for the Repatriation Health Card – for specific conditions. This card enables the holder to obtain health care benefits for conditions for which treatment eligibility has been accepted.
CHAPTER 1 - INTRODUCTIONPurpose of the MRCAThe Military Rehabilitation and Compensation Act 2004 (MRCA) provides treatment, rehabilitation and compensation for members and former members of the Australian Defence Force (ADF) and their dependants in respect of service rendered on or after 1 July 2004. The MRCA also sets governance, administration and reporting requirements. CommencementThe operative provisions of the MRCA commenced on 1 July 2004. The MRCA is prospective in operation and only applies to injuries or illnesses that occur on or after the commencement day of 1 July 2004. The Veterans’ Entitlements Act 1986 (VEA) was not repealed as a consequence of the passage of the MRCA. This means that people with compensation coverage under the MRCA remain eligible for certain other benefits that continue under the VEA, such as the service pension. It also means that people with compensation coverage under the VEA continue to be covered under the VEA for injuries or illnesses from eligible service before 1 July 2004. Persons with compensation coverage under the Safety, Rehabilitation and Compensation Act 1988 (SRCA) continue to be covered by that Act for injuries or illness that occur before 1 July 2004. DefinitionsWho is covered by the MRCA?Members and former members of the ADF, including members of the Permanent Forces and the Reserves All members and former members of the permanent Navy, Regular Army and the permanent Air Force are covered for injuries or illnesses arising from service rendered on or after the commencement day of 1 July 2004. Reservists on continuous full-time service and part-time service are also covered. Members of the ADF cadets Officers and Instructors of cadets and school cadets are covered for periods of instruction, training, performing duty and travel to and from the place of an eligible activity. Persons covered by a Ministerial determination The MRCA gives the Minister for Defence a discretion to extend coverage to a person or a class of persons who engage or have engaged in activities or who perform or have performed acts:
This provision offers the flexibility to extend coverage to philanthropic representatives and holders of honorary rank. Kinds of service covered by the MRCAThe MRCA applies to the following categories of defence service:
The Minister for Defence determines what service constitutes warlike or non-warlike service. Service that is not the subject of such a determination is peacetime service. Definitions relevant to determination of the liability issueThe definitions of "injury" and "disease" in the MRCA are based on the definitions found in the VEA. The definitions of "service injury", "service disease" and "service death" are also based on the VEA liability provisions. They are the main heads of liability and are used in deciding whether a person’s injury, disease or death has the necessary relationship with service for liability to be accepted. The Repatriation Medical Authority (RMA) is the same authority as established under the VEA. The RMA’s Statements of Principles (SoPs) are applied to claims for liability to determine the medical issue as to whether there is the requisite causal connection between the person’s injury, disease or death and relevant service. The further operation of these definitions and the determination of the liability issue are detailed in Chapter Two. Definitions relevant to the heads of compensationAn integral concept to the assessment of incapacity payments is the person’s "incapacity for service" or "incapacity for work". These refer to an incapacity of the person to engage in ADF service or civilian work that he or she was engaged in before the incapacity. If a person was not previously engaged in work, the incapacity of the person is assessed having regard to any work to which the person would be suited. The definition of "impairment" is critical to the issue of whether a person qualifies for permanent impairment compensation. It is defined by reference to the loss, the loss of the use, or the damage or malfunction, of any part of the person’s body, of any bodily system or function, or of any part of such system or function. The concept of permanent impairment in the MRCA is based on the concept of permanent impairment in the SRCA.
CHAPTER 2 - ACCEPTING LIABILITY FOR SERVICE INJURIES, DISEASES AND DEATHSIntroductionThe liability provisions in the MRCA are primarily modelled on those contained in the VEA with some additions derived from the SRCA. By using provisions modelled on or adapted from the VEA and SRCA, any relevant case law applicable to the interpretation of those provisions is intended to apply as far as possible within the context of the MRCA. The definitions of "injury" and "disease" are based on the definitions in section 5D of the VEA. The basic liability provisions are to be found in the definitions of "service injury", "service disease" and "service death". These definitions are adapted from the liability provisions contained in the VEA and describe the various connections with service that are required in order to establish the necessary relationship between a person’s injury, disease or death and service. To add clarity, provisions that exclude liability (for example certain claims based upon tobacco use) have been separated out from the liability provisions and placed in Part Four of Chapter Two. When the MRCC must accept liability for service injuries, diseases and deathsPart Two of Chapter Two describes the interrelationship between the liability provisions set out in Part Three and the provisions that operate to prevent the acceptance of liability (the exclusions) in Part Four. The Military Rehabilitation and Compensation Commission (MRCC) is required to accept liability only if a claim for acceptance of liability has been made and the person’s injury, disease or death, is a "service injury", "service disease" or "service death". This is unless liability is otherwise excluded by any other effect of the MRCA. There are separate grounds of liability in respect of a service injury, disease or death arising from the unintended consequences of medical treatment paid for by the Commonwealth. The acceptance of liability only has effect for the purposes of compensation provided in the MRCA and does not imply or mean acceptance for any purpose under any other legislation such as the VEA or the SRCA. Definitions of service injury, service disease and service deathPart Three of Chapter Two contains the definitions of "service injury", "service disease" and "service death" which set out the basic connections with service that are required in order to establish the necessary relationship between the person’s injury, disease or death and service. Liability cannot be accepted if one of the exclusions in Part Four of Chapter Two applies. "Resulted from an occurrence"An injury, disease or death is regarded as a service injury, service disease or service death if it resulted "from an occurrence that happened while the person was a member rendering defence service". This is adapted from paragraphs 8(1)(a) and 9(1)(a) of the VEA. The relationship that is required under this provision to establish liability between the "occurrence" and "defence service" is a temporal one, that is, the occurrence must have occurred at some point of time during the rendering of defence service. Under the VEA this head of liability is restricted to claims for operational service only but applies to all defence service under the MRCA. "Arose out of, or was attributable to"An injury, disease or death is regarded as a service injury, service disease or service death if it "arose out of, or was attributable to" any defence service rendered by the person while a member. This is adapted from paragraphs 8(1)(b) and 9(1)(b) of the VEA. This requires a causal relationship to be found between the defence service and the relevant condition. This means that service must be a cause of the injury or disease as opposed to being part of the circumstances in, or on which, the cause operates. "But for" the circumstances of serviceAn injury or disease is regarded as a service injury or service disease if, in the opinion of the MRCC:
but for:
This provision is adapted from subsection 9(2) of the VEA. Similarly, a death is a service death if, in the opinion of the MRCC, the death was due to:
but for:
This provision is adapted from paragraph 8(1)(d) of the VEA. The "but for" test requires a direct causal connection between the defence service or changes to the environment and the event (the sustaining of the injury etc). AggravationAn injury, disease or death is a service injury, service disease or service death if it "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". This paragraph is adapted from paragraphs 8(1)(e) and 9(1)(e) of the VEA. Aggravation relates to a pre-existing injury or disease in circumstances where something occurred during defence service to make that pre-existing injury or disease worse. Most of the RMA’s SoPs contain specific factors relevant to the assessment of an aggravation claim. The application of the SoPs to determine liability in relation to a claim involving an aggravation of a pre-existing disease or injury is similar to that under the VEA. Under the SRCA, aggravation of a pre-existing injury or disease is treated as a separate injury or disease. Compensation is only payable under the SRCA for incapacity for work or permanent impairment caused by the aggravation, as opposed to the incapacity arising from the person’s overall condition which includes any incapacity attributable to the pre-existing injury or disease plus any incapacity arising from the aggravation. The MRCA adopts a similar approach. Journey provisionsThe MRCA covers members 24 hours a day while they are serving in warlike or non-warlike service. Members rendering peacetime service are generally covered only whilst they are on duty. However, the MRCA will cover an injury, disease or death resulting from an accident that occurred while the person was travelling while rendering peacetime service which was not in the course of duty:
Death from service injury or diseaseThe death of a person is a service death if the injury or disease from which the person died is an injury or disease that has been determined to be a service injury or disease. This provision is adapted from paragraph 8(1)(f) of the VEA. The words "from which" require a causal connection, the issue being whether the cause was due to the service injury or disease. This issue is determined on the balance of probabilities irrespective of whether the claim involves warlike, non-warlike or peacetime service. Service injury, disease or death arising from medical treatment paid for by the CommonwealthThis is an additional head of liability adapted from section 6A of the SRCA. An injury sustained or a disease contracted is a service injury or disease if:
This provision would apply, for example, where Defence Health has paid for a serving member to have wisdom teeth removed under a general anaesthetic and, as an unintended consequence of the surgery, a nerve is damaged and the member losses their sense of taste and smell. The loss of taste or smell is compensable. The provision also applies where, as an unintended consequence of treatment paid for by the Commonwealth under the MRCA, or under the Defence Regulations on or after 1 July 2004, the earlier injury or disease is aggravated or the person dies. When the MRCC is prevented from accepting liability for service injuries, diseases and deathsPart Four of Chapter Two sets out the circumstances where the MRCC cannot accept liability for an injury, disease or death. The exclusions apply even if the case otherwise satisfies one of the heads of liability set out in Part Three and the relevant SoPs. The standard of proof applicable to the application of these provisions is the "balance of probabilities". Serious defaults or wilful acts, serious breaches of discipline and intentionally self inflicted injuries or diseasesThe MRCC must not accept liability for an injury sustained, or a disease contracted, by a person if:
This exclusion does not apply if the injury or disease results in serious and permanent impairment. This reflects the provisions of section 14 of the SRCA. An injury or disease is deemed to have resulted from a person’s serious default or wilful act, if:
It also applies to the exclusion of aggravations etc resulting from a serious default or wilful act, except if the injury or disease results in serious and permanent impairment. Reasonable counselling about performanceThe MRCC must not accept liability if the injury or disease resulted from:
This also applies to material contributions and aggravations. False representationsLiability must not be accepted if a person has made a wilful and false representation, in connection with his or her defence service or proposed defence service, that he or she did not suffer, or had not previously suffered, from that disease or injury. The exclusion also applies to claims involving aggravations and death. TravelThis exclusion only applies to peacetime service. Liability must not be accepted for an injury or disease resulting from an accident that occurred while the person was a member travelling on a journey that had been delayed. Compensation is possible only if the person had delayed commencing the journey for a substantial time after he or she had ceased to perform duty at that place because:
The exclusion also applies to claims involving routes that are not reasonably direct and to substantial interruptions to journeys unrelated to the travel. TobaccoThe MRCA provides that the MRCC must not accept liability if the injury, disease or death resulted only from the person’s use of tobacco products. There is no allowance for serious impairment or death as a result of such tobacco use. The factors in the SoPs relevant to tobacco use are redundant in the MRCA. Similar exclusions were made in subsections 8(6) and 9(7) of the VEA and have applied since 31 December 1997. Passive smoking is not the "use of tobacco".
CHAPTER 3 - REHABILITATIONOverviewThe rehabilitation provisions in the MRCA reflect to a large extent those contained in the SRCA and encompass medical, vocational and social rehabilitation. The aim of rehabilitation is to maximise the potential to restore a person who has suffered impairment from a service injury or disease to their pre-injury or disease physical, psychological, vocational, educational and social capabilities. The MRCA requires that people assessed as capable of benefiting from rehabilitation participate in a rehabilitation program formulated for them. If a person refuses or fails to undergo an examination in connection with rehabilitation or to undertake a rehabilitation program without reasonable excuse, payment of compensation (but not treatment) under the MRCA may be suspended until they undergo the examination or undertake the program. People who have been assessed as unable to benefit from a vocational rehabilitation program may undertake a rehabilitation program on a voluntary basis. Persons to whom the rehabilitation provisions applyThe rehabilitation provisions in the MRCA apply to any serving member of the Permanent Forces and members of the Reserves on continuous full-time service if they are incapacitated for service or have an impairment that results from an injury or disease for which the MRCC has accepted liability. The provisions also apply to former members of the ADF, part-time Reservists, Cadets and declared members if they are incapacitated for service or work or have an impairment because of an injury or disease for which the MRCC has accepted liability. Rehabilitation authorityThe MRCA provides for two rehabilitation authorities:
The functions of the rehabilitation authority are to:
The MRCA also requires the rehabilitation authority to take all reasonable steps to assist a person to find suitable work. For serving members of the Permanent Forces or full-time Reservists, the Service Chief, as the rehabilitation authority, must take all reasonable steps to assist the member to find suitable work within the Permanent Forces or full-time Reserves as appropriate. Where a member is identified for medical discharge, the MRCC becomes the rehabilitation authority. It is the responsibility of the MRCC to take all reasonable steps to assist that person in finding suitable civilian work. In all other cases, such as former members of the Permanent Forces, former full-time Reservists, former part-time Reservists, Cadets or declared members, the MRCC, as the rehabilitation authority, must take all reasonable steps to assist the person to find suitable civilian work. Rehabilitation assessmentBoth members and former members of the ADF can have a rehabilitation assessment to determine their suitability for rehabilitation. The rehabilitation authority may undertake an initial assessment and further assessments of a person’s capacity to undertake rehabilitation of its own initiative. The rehabilitation authority must carry out an initial assessment if the member or former member requests one. The rehabilitation authority may seek the assistance of a suitably qualified person to carry out the assessment. The rehabilitation authority may require a person to undertake an examination to enable a rehabilitation assessment to be made. The rehabilitation authority will pay for the costs of examinations it has asked the person to attend and will also pay the cost of reasonable travel and accommodation expenses associated with attending these examinations. If a person refuses or fails to undergo or obstructs an examination without a reasonable excuse, they cannot receive compensation payments under the MRCA (but will still receive treatment) until the examination takes place. Once the assessment is completed, the rehabilitation authority will make a determination as to whether the person is capable of undertaking rehabilitation and, if so, specifying the type of rehabilitation the person must undertake. The rehabilitation authority’s decision must take into account such things as:
Reviews and rehabilitation assessments must be sensitive to the circumstances of the individual. Rehabilitation programIf the rehabilitation authority decides that a member or former member is capable of undergoing rehabilitation, a rehabilitation program is formulated in consultation with the person by an approved program provider having regard to the person’s particular needs and circumstances. The MRCA allows for the use of program providers approved by Comcare under the SRCA. It also allows the rehabilitation authority to appoint or approve other program providers where it is satisfied that they possess the skills and expertise required to design and provide rehabilitation programs. The rehabilitation authority will pay for the cost of the design and provision of the rehabilitation program which can cover a number of aspects including medical, dental, psychiatric, hospital in-patient and out-patient services, physical training and exercise, physiotherapy, occupational therapy, vocational rehabilitation, training, psycho-social training and counselling. If a person refuses or fails to participate in a rehabilitation program without reasonable excuse, payment of compensation under the MRCA (but not treatment) may be suspended until they undertake the program. The rehabilitation authority is able to cease or vary a rehabilitation program after arranging for another assessment of a member’s capacity for rehabilitation either on its own initiative or at the written request of the member. Power to suspend compensation paymentsThe power to make decisions to suspend compensation payments where a person refuses or fails to undergo an examination or undertake a rehabilitation program without reasonable excuse is vested in the rehabilitation authority and is delegated only at a high level. Suspension may only take place where all reasonable steps have been taken to resolve the issue. Payment for modification, aids and appliances related to rehabilitationThe MRCA makes provision for payment of the cost of alterations to a person’s place of work, education or residence, and aids and appliances and their repair and replacement if these are reasonably required having regard to:
These provisions are designed to assist those who are undertaking or have completed an approved rehabilitation program, as well as those who have been assessed as being incapable of undertaking a rehabilitation program. To be eligible the person must be undertaking or have completed a rehabilitation program or have been assessed as not having the capacity for rehabilitation. The provisions for vehicle modifications, repair and replacement are contained in Chapter 4, which enables the MRCC to establish a Motor Vehicle Compensation Scheme to provide vehicle assistance. Transition managementThe relevant Service Chief must appoint a case manager for members of the Permanent Forces, or the Reserves on continuous full-time service, who have been identified as likely to be discharged on medical grounds. The case manager is required to assist the member in the transition to civilian life by ensuring that they have information about, and access to, entitlements and services available. Reconsideration and review of decisions about rehabilitationDecisions about rehabilitation matters that are made by the MRCC or a Service Chief are reviewable in most cases — see Chapter 8.
CHAPTER 4 - COMPENSATION FOR MEMBERS AND FORMER MEMBERSPERMANENT IMPAIRMENTOverviewAs a result of sustaining an injury or disease, a member or former member of the ADF may suffer permanent impairment. Impairment is defined in the MRCA as "…the loss, the loss of the use, or the damage or malfunction, of any part of the person’s body, of any bodily system or function, or of any part of such a system or function" (Section 5 of the MRCA). Where liability for an injury or disease has been accepted and the member or former member suffers a permanent impairment from that condition, the MRCA enables compensation to be paid either by way of periodic payments or a lump sum payment or a combination of the two. Permanent impairment compensation payments are non-economic loss payments for pain, suffering, functional loss or dysfunction and the effects of the injury or disease on lifestyle. Lump sum payments are age-based, that is, for a given level of permanent impairment they are constant up to age 30 for males and age 35 for females and will reduce after those ages according to a formula provided by the Australian Government Actuary. The age used for making the adjustment is the age of the person at the date at which the MRCC advises the person that permanent impairment compensation is payable. All permanent impairment payments are tax-free. Guide for assessment of level of impairmentIn assessing issues of permanent impairment, the MRCC must decide if the injury or disease is likely to continue indefinitely and if so, it must determine the level of impairment that the injury or disease causes. In order to assess the level of impairment to determine compensation payable, the MRCA contains a provision that enables the MRCC to prepare and use an assessment guide. Section 67 of the MRCA also contains provision for the MRCC to repeal or amend the assessment guide and that the guide is a disallowable instrument. These provisions are similar to those contained in section 29 of the VEA, which specifies the Repatriation Commission’s powers in relation to the Guide to the Assessment of Rates of Veterans’ Pensions (GARP). The MRCC has issued a guide called the Guide to Determining Impairment and Compensation. This guide is referred to as GARP M (for Military) and is the same as the GARP that is used in the VEA with changes only to the way impairment and lifestyle ratings are combined and weighted to determine compensation payable. Impairment is expressed as a rating on a scale of zero to 100. The impairment rating is combined with a lifestyle rating (zero to seven) to give a compensation factor on a scale from zero to one. This is then applied to the maximum amount of financial compensation for permanent impairment to determine how much a person is entitled to in the form of a pension or a lump sum. Up to 50 impairment points, taking a weighted average of impairment and lifestyle assessments, determines the compensation factor. Impairment is weighted at 85 per cent and lifestyle at 15 per cent. Between 50 and 80 impairment points the weighting applied to lifestyle drops and from 80 impairment points the compensation factor will be one, irrespective of lifestyle. Tables are published in GARP M which enable the amount of compensation to be readily calculated for various combinations of impairment and lifestyle. Assessment of amount of permanent impairment compensation payableWarlike and non-warlike service v peacetime service The MRCA stipulates that the assessment guide must specify different methods for combining the impairment points and lifestyle rating for conditions related to warlike and non-warlike service as opposed to conditions related to peacetime service. Compensation for more than one condition If the two conditions lead to impairment ratings, then a combined impairment rating must be calculated. If the two conditions are claimed at the same time, they are determined at the same time and the level of compensation is calculated using the combined impairment. If the conditions are claimed at different times, a combined rating is calculated to work out the level of compensation payable. Compensation where two conditions arise from different service If the two conditions lead to impairment ratings of A and B and are caused by warlike/non-warlike service and peacetime service respectively, then the compensation payable is a weighted average of the compensation that would be payable if both conditions were caused by warlike/non-warlike service and peacetime service. A and B are the weights used. What constitutes permanent impairment?The MRCA provides for permanent impairment compensation to be paid to a member or former member who suffers an impairment from a service injury or service disease for which liability has been accepted, where the impairment has stabilised and is likely to continue indefinitely. This is assessed having regard to factors such as the duration of the impairment, the likelihood of improvement, whether the person has undertaken all reasonable rehabilitative treatment, and any other relevant matters (Section 73 of the MRCA). Minimum level of impairment for which compensation is payableThe MRCA stipulates that permanent impairment compensation is not payable where:
Additional compensationAdditional injuries or diseases The MRCA enables the payment of additional compensation for additional injuries or diseases to people who have been paid, or are entitled to be paid, permanent impairment compensation or an interim payment if:
Deterioration of an already accepted condition Additional compensation can also be paid if:
Interim compensationThe MRCA enables interim impairment payments to be made where the MRCC is satisfied that the person is entitled to a permanent impairment payment (where the impairment suffered constitutes at least 10 impairment points) but it is not able to decide the degree of impairment because the condition has not stabilised. The amount of an interim impairment payment is determined by the MRCC on its best estimate of the final degree of impairment but excludes assessment of lifestyle effects. When the condition has stabilised and the MRCC is able to make a decision on the final degree of impairment, the permanent impairment compensation payable is the difference between:
Maximum amount of compensation payableThe maximum amount of permanent impairment compensation payable is either a periodic payment of $259.27 a week (or an aged-based lump sum of up to $339, 747.40), indexed to the Consumer Price Index (CPI) each July. These amounts are payable once a person’s impairment rating reaches 80 points and do not depend on the type of service. An additional amount (in the form of a lump sum only) may be paid in respect of a dependent child in certain circumstances (see Additional Amounts for Children below). The maximum lump sum is payable up to age 30 for a male and 35 for a female. It will reduce after those ages according to a formula provided by the Australian Government Actuary. Date from which periodic compensation is payablePermanent impairment periodic compensation Permanent impairment periodic compensation is payable from the later of:
Additional periodic compensation Additional periodic permanent impairment compensation for additional injuries or diseases is payable from the later of:
Interim periodic compensation Interim periodic compensation is payable from the later of:
Permanent impairment payment choiceThe VEA only provides fortnightly periodic payments of compensation and the SRCA only enables permanent impairment compensation to be paid in a lump sum. Permanent impairment compensation under the MRCA can be paid as:
For permanent impairment assessed at 10 percent to 20 percent of the maximum weekly amount of compensation a person may choose 50 percent paid as a lump sum and 50 percent paid as periodic payments. For permanent impairment assessed above 20 percent of the maximum weekly amount of compensation a person may choose between 25 percent as a lump sum and 75 percent as periodic payments, 50 percent as a lump sum and 50 percent as periodic payments or 75 percent as a lump sum and 25 percent as periodic payments. Once permanent impairment compensation or interim compensation has been determined by the MRCC, the MRCA requires the MRCC to notify the person of the amounts of the various payment choices. A person who wishes to receive a lump sum or lump sum/periodic payment combination instead of periodic payments must make that choice in writing within six months after receiving advice of the periodic payment amount. The MRCA enables the MRCC to extend this period in special circumstances. Interim periodic payments which have been made are deducted from the lump sum. A lump sum is payable within 30 days after the MRCC becomes aware of the person’s decision to choose a payment option involving a lump sum. Interest is payable to the person, at a rate specified by the Minister, for any period over 30 days that compensation remains unpaid. These provisions do not apply where either the person or the MRCC lodges an application for reconsideration of the amount of compensation payable. Once a person chooses the lump sum, they cannot revert to periodic payments. They may later become entitled to additional compensation for additional injury or disease or deterioration in an injury or disease for which permanent impairment compensation has already paid. In that case they may choose periodic payments, a lump sum or a combination for payment of that additional compensation irrespective of the choice made for earlier compensation. Additional amounts for childrenThe MRCA provides that a member or former member who is entitled to the maximum amount of permanent impairment compensation is entitled to $66, 746.56 for each dependant who is an eligible young person — see Chapter five. This requires that the child must have been dependent on the member or former member at the date the claim for acceptance of liability for the condition was made or, the date the MRCC determined that the degree of impairment was 80 points or more. The compensation is paid to the person who has primary responsibility for the care of the child if the child is under 18 or to the child if aged 18 or over. Financial adviceWhere a member or former member is entitled to permanent impairment compensation, the level of impairment is assessed at 50 points or more, reimbursement of up to $1,334.93 (indexed) can be made for the reasonable costs of financial advice obtained from a suitably qualified person. This is intended to enable the member or former member to obtain advice on which payment option best suits his or her individual circumstances. A person whose impairment is assessed at or above 50 impairment points may also be entitled to assistance with the cost of financial advice obtained in regard to a choice between incapacity payments and a Special Rate Disability Pension safety net payment (SRDP). If the person was advised of the impairment assessment and their eligibility for SRDP at the same time, they cannot receive two $1,334.93 payments for financial advice. If a person has received a payment for financial advice and later becomes eligible for SRDP, a further payment for financial advice can be made under the SRDP provisions. INCAPACITY PAYMENTSOverviewThe MRCA provides financial compensation for loss of earnings (termed economic loss) in the form of incapacity payments. Incapacity payments may be made to members of the ADF who are still serving and are incapacitated for service and to former members of the ADF who are incapacitated for work. Entitlement to incapacity paymentsIncapacity payments may be made to members and former members of the ADF, including reservists, cadets and declared members, who are incapacitated for service or work as a result of an injury or disease for which liability is accepted. Incapacity payments are payable from the date of onset of the incapacity and will continue to be paid until such time as:
Incapacity payments will cease at age 65 (the current retirement age) because they are paid as compensation for loss of earnings. The exception to this is where the person is over 63 at the time of the injury or contraction of the disease for which liability is accepted. In these cases, incapacity payments may be paid in respect of a period not exceeding 104 weeks from the time of incapacity for service or work even if that covers a period past attaining age 65. Calculation of incapacity paymentsIncapacity payments are calculated by looking at what a member would normally earn and any amount that is actually earned. If the amount actually earned is less than the amount that is normally earned, incapacity payments will cover that difference. Under the MRCA, normal earnings are calculated in a number of ways. In the case of a Permanent Force member, normal earnings are calculated against the member’s service earnings. In the case of Reserve members, normal earnings are calculated against either civilian or reserve earnings or a combination of both. In all cases, the normal earnings are calculated by looking at what the member was earning at the time of the incapacity, for serving members, or what was earned at the date of discharge for former members. Incapacity payments for serving members are paid at 100 per cent of the member’s normal earnings at the time of incapacity, less any income the member is actually earning. Once the member is discharged, incapacity payments are paid at 100 per cent of normal earnings at time of discharge, less any actual earnings, for a period equal to 45 full weeks after the date of discharge. The 45-week period need not be continuous and represents a total of 45 weeks worth of incapacity payments. After 45 weeks, incapacity payments are reduced to a maximum of 75 per cent of normal earnings if the person is unable to return to work. Where the former member undertakes a return to work program, incapacity payments are calculated as a higher percentage of normal earnings depending on the number of hours worked per week. The following table shows how a graduated return to work process will impact on the calculation of incapacity payments using the formula "percentage of normal earnings minus actual earnings".
Remuneration loadingWhere incapacity payments are calculated against full-time ADF wages, the MRCA provides a loading of $117.10 per week to be added to the normal weekly earnings calculation of former members. The loading is designed to recognise the loss of non-salary related benefits such as Defence housing that were provided while in service. It is indexed to ADF pay and allowance increases in accordance with section 183 by regulation each 1 July. Incapacity payments for Reserve serviceThe MRCA contains provisions that recognise the income support needs of members of the Reserves who become incapacitated as a result of their service. Particular regard has been given to the range of circumstances faced by members of the Reserves who are injured during periods of service with the ADF and are subsequently unable to engage in their usual civilian occupation. Reserve members injured on continuous full-time service and incapacitated for work will receive incapacity payments based on the greater of their military earnings or their normal civilian earnings. The latter may also include earnings from part-time Reserve service if that was regularly rendered prior to full-time service. This will ensure that high earning Reservists, such as medical specialists, are not financially disadvantaged if injured during service. Reserve members injured on part-time service and incapacitated for work will receive incapacity payments based on a combination of their part-time military earnings and their normal civilian earnings. Superannuation offsetsIncapacity payments are offset $1 for $1 by any Commonwealth-funded component of superannuation a person receives, which accrued during their ADF service, as is the current practice under the SRCA. The benefits derived from the members’ own contributions to the affected superannuation funds (the employee components) are not offset against incapacity payments under the MRCA. Unlike the SRCA, incapacity payments in the MRCA are not reduced by the notional member superannuation contributions that would have been paid had the person still been in the scheme. Minimum earnings provisionThe MRCA provides minimum normal weekly earnings for incapacity payments, equivalent to the federal minimum wage. Where a person’s normal earnings are less than this amount, such as some part-time Reservists and philanthropic representatives, the federal minimum wage is taken to be the person’s normal earnings for the purpose of incapacity payments. Lump sum redemptionThe MRCA provides an option for certain people to take incapacity payments in a lump sum, where the weekly payment is $166.87 or less. This option is available where the person is engaged in work or is receiving Commonwealth superannuation pension or has received a ComSuper lump sum and the MRCC is satisfied that their incapacity for work is unlikely to change. Date of effect for incapacity compensationThe earliest date from which any incapacity payments can be made is the first date on which the inability to undertake normal work occurred. Payments can be made from this date for loss of income and for any rehabilitation or treatment provided after that date in connection with the incapacity for work. The maximum level of incapacity payments is not capped in the MRCA, as is the case with the SRCA and the prescribed maximum levels of pension in the VEA. This provision is particularly relevant for high income earning Permanent Force members and Reservists. Incapacity payments that take account of service earnings are adjusted in line with movements in the relevant ADF pay and allowance rates. Incapacity payments that take account of civilian earnings are adjusted in accordance with the SRCA method of indexation, that is a wage cost index. SPECIAL RATE DISABILITY PENSION (THE SAFETY NET)Nature of benefitThe MRCA former members provides a choice of receiving tax-free Special Rate Disability Pension safety net payment (SRDP) or taxable incapacity payments to certain members. The SRDP provides an alternative form of compensation for people whose capacity for work has been severely curtailed because of injury or disease accepted under the MRCA. Eligibility criteria for SRDPA former ADF member must meet the following criteria to be eligible for a SRDP:
Administrative procedures and one-time choiceProvision of the SRDP is dependent on acceptance of an offer that the MRCC is required to make as soon as possible after determining that the person meets the eligibility requirements. A maximum of 12 months from the date of the offer is allowed for the response. If no choice is made, the default benefit is continuation of incapacity payments until age 65. The person must satisfy the eligibility criteria at the time of acceptance. Financial adviceThe person offered the choice of taking the SRDP or incapacity payments must seek financial advice about the choice. Reimbursement of up to $1,334.93 (indexed) can be made for the reasonable costs of financial advice obtained from a suitably qualified person. This is intended to enable the person to obtain advice on which payment option best suits their individual circumstances. Rate of SRDPThe SRDP rate is based on the Special (Totally and Permanently Incapacitated) Rate Disability Pension provided under the VEA. It is offset by the member’s MRCA permanent impairment payments and the Commonwealth-funded component of superannuation the member receives, which accrued during their ADF service. Offsetting arrangementsEffect of permanent impairment payments The MRCA provides for the SRDP to be offset by payments for permanent impairment. Periodic payments are offset $1 for $1 while lump sum payments are offset in accordance with the values of the periodic payment that was converted to the lump sum. Effect of Commonwealth-funded component of superannuation SRDP is offset at the rate of 60 cents for each $1 of any Commonwealth-funded component of superannuation a person receives, which accrued during their ADF service. The benefits derived from the members’ own contributions to the affected superannuation funds (the employee components) are not offset against SRDP payments under the MRCA. Other mattersSRDP payments are tax-free. Incapacity payments are subject to taxation where they replace taxable salary or allowances. There are varying welfare and taxation rebate benefits arising from the alternative payments. The SRDP is paid for life while incapacity payments cease at age 65. On the death of those eligible for the SRDP, their dependants may become eligible for benefits under Chapter Five of the MRCA, similar to the automatic eligibility which applies on the death of VEA Special Rate pensioners. OTHER TYPES OF COMPENSATIONMotor Vehicle Compensation SchemeOverview The MRCA enables eligible people to receive motor vehicle modifications and, in certain circumstances, assistance with the provision of a motor vehicle under a scheme established by the MRCC. These provisions are intended for members and former members who need modifications to a motor vehicle because of impairment arising from an injury or disease for which liability has been accepted. Establishment of the Motor Vehicle Compensation Scheme The MRCA empowers the MRCC to establish the Motor Vehicle Compensation Scheme (MVCS). The MVCS is a disallowable instrument which means it has been subject to parliamentary scrutiny. Eligibility criteria The MRCA specifies that assistance under the scheme may be provided where there is a need for motor vehicle modification because of impairment arising from an injury or disease for which liability has been accepted. Type of assistance The MRCA enables modifications to a person’s vehicle and the maintenance or repair of modifications. The details are included in the MVCS. It is recognised that in some cases, the necessary modifications to the person’s vehicle may not be possible. For this reason, the MRCA enables the MRCC to subsidise the purchase of a suitably modified vehicle or purchase a motor vehicle for a person. In some cases it may be necessary to supply an eligible person with a suitably modified vehicle where they do not already own one. The circumstances under which this assistance may be provided are detailed in the MVCS. This may include, for instance, a person who never previously owned a car and cannot use public transport because of severe impairment as a result of an accepted condition. Conditions The MVCS sets out the conditions under which a vehicle or modifications to a vehicle are supplied. The person accepting compensation under the MVCS is responsible for the registration, running and proper maintenance of the motor vehicle. Insurance for the vehicle is also the responsibility of the person although the MRCC will pay for additional insurance costs that relate to any modifications provided. Household and Attendant CareOverview The provisions of the MRCA relating to household and attendant care are modelled on those in the SRCA. They apply to members and former members who need household and/or attendant care because of an injury or disease for which liability is accepted. Many of these people will also be eligible for a White Card or Gold Card. Household services Compensation can be paid for household services reasonably required by a person because of an injury or disease for which liability is accepted. Household services mean services of a domestic nature that are required for the proper running and maintenance of the person’s household such as cooking, house cleaning and gardening services. The MRCA sets out a number of factors that the MRCC must have regard to in determining what household services are reasonably required. The amount of compensation for reasonable household services is up to $367.11 per week. The amount is indexed annually each 1 July. Attendant care services Compensation can be paid for attendant care services reasonably required because of an injury or disease for which liability is accepted. Attendant care services means services (other than household services, medical or surgical services or nursing care) that are required for the essential and regular personal care of the person such as eating, bathing, dressing and toileting. The MRCA sets out a number of factors that the MRCC must have regard to in determining what attendant care services are reasonably required. The amount of compensation for reasonable attendant care services is up to $367.11 per week. The amount is indexed annually each 1 July. Telephone allowanceThe MRCA enables a telephone allowance to be provided to members and former members:
The telephone allowance is paid at the same rate as the VEA telephone allowance and contains the same rules about payment whilst outside Australia. The current rate of telephone allowance is $21.40 per quarter. Only one telephone allowance is paid per person even if the person had eligibility under more than one provision of the MRCA. Similarly, telephone allowance cannot be paid under the MRCA if the person already receives one under the VEA or the Social Security Act 1991. Compensation for loss or damage to medical aidsThese provisions reflect section 15 of the SRCA. They enable serving members of the ADF to receive compensation for the reasonable costs of replacing or repairing medical aids which have been lost or damaged due to an accident that happened whilst rendering service in the ADF. This compensation is not payable where the accident has resulted in an injury or disease. Damage that occurred whilst travelling from a place of duty may also be compensated. However, there are some circumstances where compensation is not payable for damage due to travel from a place of duty. For instance, compensation is not paid if there was a substantial delay in commencing the journey, or an interruption to the journey, that increased the risk or extent of the accident. Similarly, travelling on a route which was not reasonably direct and increased the risk or extent of the accident is not covered. Compensation will not be provided for loss or damage to medical aids resulting from being under the influence of alcohol or drugs or other serious default or wilful act, whilst the member was committing a serious breach of discipline or where the loss or damage was intentional. Serving members can often have damaged medical aids replaced by the ADF and if so, they will not be entitled to compensation for the damaged medical aids under the MRCA provisions. Additionally, this compensation is not intended for loss or damage to a medical aid provided for an accepted condition. In these circumstances, compensation is available under the treatment provisions in Chapter Six of the MRCA.
CHAPTER 5 - COMPENSATION FOR DEPENDANTSOverviewThis Chapter sets out the types of compensation payable to dependants of deceased members and former members, the education assistance available to certain dependent children and funeral benefits. Compensation for wholly dependent partnersDefinition of wholly dependent partnerA wholly dependent partner is a person of the opposite sex to the member who:
A partner living with the member immediately before the member’s death is regarded as being wholly dependent on the member for economic support without having to establish the dependency for economic support. A partner is also regarded as being wholly dependent where the couple were temporarily living apart or were living apart due to illness of either or both of them immediately before the member’s death. Death benefitWholly dependent partners can receive either tax-free periodic payments equivalent to the war widow/er’s pension under the VEA or its age-based lump sum equivalent where:
The periodic payment is payable from the date of the member’s death. The lump sum option is calculated using the partner’s age at the date of the member’s death and the rate payable at that time. Making the choiceA wholly dependent partner who wishes to receive a lump sum death benefit instead of periodic payments must make that choice in writing within six months after receiving advice of the payment options and the amounts involved. The MRCC can extend this period in special circumstances. If the partner does not make the choice within the time period, the periodic payment is paid. Once a choice is made, it cannot be changed. Financial adviceA wholly dependent partner offered the choice between taking the death benefit as a lump sum or as a periodic payment is entitled to reimbursement of up to $1,334.93 (indexed) for the reasonable costs of obtaining financial advice from a suitably qualified person. This is intended to enable the partner to obtain advice on which payment option best suits their individual circumstances. Additional death benefitWhere liability for the death has been accepted, the wholly dependent partner also receives an additional death benefit in a tax-free lump sum. This is in addition to the death benefit. The maximum amount of additional death benefit is currently $111, 244.27. Where the widowed wholly dependent partner was aged 40 or less at the time of the member’s death, they receive the maximum amount. The payment reduces for those aged over 40 at the time of the member’s death. Other benefitsOther benefits available under the MRCA for wholly dependent partners eligible for the death benefit include:
Additionally, these partners may be entitled to the VEA income support supplement (ISS) and associated allowances, subject to the same rules as apply to VEA war widow/ers. Under the VEA there is no concessional treatment of the war widow/er’s pension in the assessment of the amount of ISS payable and this applies equally to the MRCA death benefit payments. Continuation of deceased member’s paymentsUnder the MRCA, wholly dependent partners of deceased members are entitled to a bereavement payment equal to 12 weekly instalments of the deceased member’s permanent impairment periodic payments, incapacity payments or SRDP. The payment is similar in concept to the disability pension bereavement payment made under the VEA. Compensation for dependants who are eligible young personsDefinition of a dependant who is an eligible young personEssentially, a dependant of a member who is an eligible young person is someone who:
Eligible young persons who are dependants of a member are taken to be wholly dependent on the member if they normally lived with the member at the time of the member’s death. An allowance is made for temporary absences or where the member and the eligible young person are living apart due to illness. A temporary absence may include one for educational purposes. A son or daughter of the member who was born after the member’s death may be regarded as an eligible young person who was wholly dependent on the member. Lump sum death benefit paymentA dependant of a deceased member or former member who is an eligible young person is entitled to a tax-free lump sum compensation payment of $66,746.56 where:
Periodic paymentA weekly payment of $73.42 is available provided that the eligible young person was wholly or mainly dependent on the member or former member immediately before the death. Who receives the payment?The compensation is paid to the person who has primary responsibility for the care of the child if the child is under 18 or to the child if aged 18 or over. Education assistanceThe MRCA empowers the MRCC to establish, vary or revoke its own education scheme or to adopt the provisions of another education scheme in order to provide education and training assistance to certain children of members and former members. The MRCC has established the Military Rehabilitation and Compensation Act Education and Training Scheme (MRCAETS) that is largely based on the Veterans’ Children Education Scheme established under the VEA. An eligible child for the purpose of gaining education assistance is an eligible young person (not being a wholly dependent partner) who:
Note: To be a dependant, the person must be wholly or partly dependent on the member for economic support or would have been but for the incapacity of the member from an injury or disease. Other benefitsOther benefits available under the MRCA for dependants who are eligible young persons entitled to a death benefit include:
Continuation of a deceased member’s paymentsDependants who are eligible young persons and were wholly or mainly dependent on a member or former member immediately before the death may be entitled to a bereavement payment. This is equal to 12 weekly instalments of the deceased member’s permanent impairment periodic payments, incapacity payments or SRDP divided amongst the eligible persons. A bereavement payment is available only where there is no wholly dependent partner entitled to this payment. Compensation for other dependantsEligibility criteriaThe MRCA also provides compensation for other family members who were wholly, mainly or partly dependent on the deceased member for economic support. These can be persons such as a dependent mother, father, sister or brother or a partly dependent partner. A partly dependent partner can be a separated spouse, wife or husband, whether they were married or in a marriage-like relationship. The degree of dependency requires that there have been some financial dependence on the deceased member. The dependency can be through things like spousal maintenance or other regular payments made by the deceased member to the partner. As with wholly dependent partners and eligible young person dependants, compensation is provided if:
Eligible young persons and wholly dependent partners are not included in these provisions. They have separate and distinct entitlements (see above). Amount payableA maximum tax-free, lump sum payment of up to $211,364.12 is available for distribution amongst eligible other dependants. The maximum amount for each individual is $66,746.56 and the amount payable depends on the degree of dependency, the length of time they would have been dependent on the member and the financial losses they have suffered as a result of the member’s death. Compensation for funeral expensesCompensation for the cost of a funeral may be paid where:
A dependant of the deceased member or the member's legal personal representative can make a claim for funeral expenses. The maximum amount of compensation payable is $9,000.00 increased in line with the CPI annually in July. The compensation is in the form of reimbursement and, consequently, it is tax-free. In determining the amount payable, the MRCC must have regard to:
Funeral compensation is payable to the person who made the claim or, if that person so directs, to the person carrying out the funeral or any other person who incurred the cost of the funeral. Some funeral benefit provisions in the VEA apply for certain other deaths of persons with MRCA service.
CHAPTER 6 - TREATMENT FOR INJURIES AND DISEASESOverviewThe treatment provisions in the MRCA reflect a combination of those found in the SRCA and the VEA. For short-term treatment cases the SRCA type provisions apply. These provisions allow for the payment/reimbursement of reasonable costs incurred in the treatment of injury or disease, for which liability is accepted, by any qualified health provider and are contained in Part two of this Chapter of the MRCA. For conditions requiring long term treatment and for eligible dependants, the VEA White and Gold Card treatment arrangements (the card system) applies and these provisions are contained in Part Three of this Chapter. A person may initially receive treatment for their accepted injury or disease under Part Two (the reimbursement system) and, if the condition becomes chronic and requires ongoing long-term treatment, they may be transferred to the treatment arrangements under the card system. The transfer will usually occur after a review of their health care needs. There are protocols for this process. Some members will have automatic entitlement to a Gold Card when they reach certain threshold impairment levels. Under the MRCA, health treatment is provided in order to:
Entitlement to treatment - former membersThe entitlement to treatment is derived from the acceptance by the MRCC of a claim for liability. A person whose permanent impairment from accepted injury or disease has been assessed at 60 points or more, or is eligible for the SRDP, is automatically provided with a Gold Card. Treatment eligibility is from:
Entitlement to health treatment - eligible dependantsThe wholly dependent partner and/or dependent children of a deceased member who is eligible for the death benefit under Chapter Five of the MRCA is entitled to a Gold Card. These arrangements reflect similar arrangements for eligible dependants under the VEA. Eligibility is from the day after the member’s death. Entitlement to treatment overseasA person eligible for treatment under Part Two of Chapter Six, for injury or disease for which liability is accepted, is entitled to compensation for the costs of treatment which was reasonable for the person to obtain in the circumstances. This may include reasonable treatment obtained for the accepted injury or disease whilst living or travelling overseas. The MRCA states that there is no duty imposed on the MRCC to arrange for treatment to be provided outside Australia for a person eligible for treatment under Part Three of Chapter Six (the card system). Nor is there a right to be provided with treatment outside Australia. Treatment overseas is limited to that provided under the MRCA Treatment Principles. For members living or travelling overseas, the reasonable costs of treatment for accepted injuries and/or diseases only may be reimbursed upon production of original receipts and is generally limited to the cost that would have been incurred if the treatment was arranged in Australia. The Department of Veterans’ Affairs (DVA) must be notified of the person’s intention to travel or live overseas. Treatment for all conditions is still available for eligible dependants holding a Gold Card. The cost of travel and treatment overseas for the sole purpose of obtaining treatment is not reimbursed under the current MRCA Treatment Principles. Serving membersADF members on continuous full-time service are entitled to health care under ADF Regulations and therefore will not usually be provided with treatment under the MRCA while they continue to serve in that capacity. However, the MRCA allows the MRCC to provide treatment to a serving member under the MRCA where liability for compensation has been accepted and the member’s Service Chief considers that it would be more appropriate to do so. This provision will assist in the continuity of health care for serving members who are in transition to discharge. Journey and accommodation costsPart Four of Chapter Six of the MRCA provides for the payment of reasonable costs incurred by persons for travel and accommodation relating to their treatment. These provisions are modelled on the SRCA provisions. The MRCC may approve a person to act as an attendant to a patient requiring treatment and reimburse reasonable travel and accommodation costs incurred by the attendant. There is no liability for costs incurred for travel and accommodation where a person travels outside of Australia for the purpose of receiving treatment. Pharmaceutical allowancePart Four of Chapter Six of the MRCA enables pharmaceutical allowance to be paid to persons provided with a White or Gold Card under the MRCA. The rates of payment and eligibility requirements reflect those in the VEA. The current rate is $2.90 per week. AdministrationThe MRCA empowers the MRCC to make determinations relating to the treatment of certain conditions, the kind of treatment provided and the places where treatment is provided to a person eligible for treatment under the card system. The MRCC has issued the MRCA Treatment Principles, the MRCA Private Patient Principles and the MRCA Pharmaceutical Benefits Scheme which reflect those established under the VEA for these purposes. ReviewAs is the case in the SRCA, the reconsideration and review process applies to determinations made under the Part Two provisions and to some Part Four provisions such as journey and accommodation. The Part Three treatment provisions are governed by the MRCA Treatment Principles, the MRCA Private Patient Principles and the MRCA Pharmaceutical Benefits Scheme and are not subject to reconsideration and review. However, the MRCC is able to review the provision of treatment to the holders of White and Gold Cards at any time. This could occur at the time the card reaches its expiry date or when another claim for compensation is made and a needs assessment is conducted. A determination to move a person from Part Two to Part Three treatment is not reviewable. The VEA provides Gold Cards for:
The VEA also provides White Cards for members with warlike or non-warlike service for treatment of non-service related posttraumatic stress disorder, a malignant neoplasm and pulmonary tuberculosis if treatment for the condition is not provided under the MRCA.
CHAPTER 7 - CLAIMSOverviewThe claims provisions in the MRCA set out the procedures for making a claim. The claims provisions empower the MRCC to request information relevant to a claim, and to require a person to undergo a medical examination, after a person has made a claim. Most benefits under the MRCA require a claim to be made. A claim can be made for:
Making a claimClaims must be made in writing on a form approved by the MRCC. The claim must be lodged at a place, or with an employee of the Department of Veterans’ Affairs, approved by with the MRCC. DVA State offices, National Office and Veterans’ Affairs Networks in Darwin and Townsville are approved offices. The MRCA also allows for the electronic lodgement of claims, when procedures for electronic lodgement are finalised. When this is available it will be announced on the MRCS website. No time limits for claimsThe MRCA does not place a time limit on the lodgement of a claim but it is to the claimant’s advantage to claim as soon as they become aware of the injury, disease or death, and while supporting information is readily available. Who can make a claim?A claim is usually be made by the member, former member or a dependant of the member. The MRCA also enables claims to be made by:
Claims made by serving membersWhere a person is a serving member when a claim is made, or dies whilst serving and a claim is made by a dependant, the MRCA requires that the MRCC must provide a copy of the claim to the relevant Service Chief. This provision reflects the SRCA requirement that the employer be notified where a claim is submitted by an employee. Claims after death of claimantWhere a person has made a claim and dies before the claim is decided, the claim can continue with any compensation payable being made to the person’s estate. Where a person entitled to make a claim dies without making a claim, the person’s legal personal representative may make a claim with any compensation payable being made to the person’s estate. This does not apply to compensation for permanent impairment because permanent impairment compensation is intended to compensate the member or former member for physical disability, pain, suffering and lifestyle restrictions, the effects of which cease at death. Investigation of a claimCollection of informationThe MRCC has the power to require a claimant holding information relevant to the claim to furnish information requested by the MRCC. Normally this information is required within 28 days but the claimant can ask the MRCC to extend the period. If a claimant refuses or fails to provide the information without a reasonable excuse, the MRCC may refuse to proceed with determining the claim until the information is received. Medical examinationsWhere an acceptance of liability claim or a compensation claim has been lodged, the MRCC will have the power to require a person to undergo medical examinations. If a person refuses or fails to undergo a medical examination without a reasonable excuse, or obstructs a medical examination, the MRCC has the power to suspend compensation payments (except treatment) until the examination takes place. The MRCC will pay for the costs of medical examinations it has asked the person to attend and will also pay the cost of reasonable travel and accommodation expenses associated with attendance at such a medical examination. Needs assessmentsThe MRCA empowers the MRCC to conduct an assessment of a person’s needs where they have made a claim. The purpose of the needs assessment is to ensure that the person receives all available assistance to which they are entitled under the Act. The MRCC may conduct a needs assessment as soon as a claim for acceptance of liability has been made. A needs assessment is mandatory before the MRCC pays any form of compensation. Protocols have been developed for the conduct of needs assessments. Determination of claimsMRCC not bound by technicalitiesThe MRCA contains a provision modelled on section 119 of the VEA that requires the MRCC not to be bound by technicalities in considering, hearing or determining a claim or request and in making a decision. This means it must take into account any difficulties that for any reason lie in the way of ascertaining any matter due to the effects of the passage of time or the absence of, or deficiency in, relevant official records. Standards of proofThe provisions that relate to the standard of proof applicable to claims are modelled on section 120 of the VEA. The more beneficial "beyond reasonable doubt" standard of proof applies to claims for liability arising from warlike and non-warlike service. The "balance of probabilities" standard of proof applies to claims for liability arising from peacetime service. The balance of probabilities standard of proof also applies to the diagnosis of all conditions, the determination of the cause of death associated with a claim for liability and to all other matters in the MRCA. Application of the Statements of PrinciplesThe Statements of Principles (SoPs) are used to determine issues of medical causation that are raised in claims for liability. In order for liability to be accepted for a particular kind of injury, disease or death, the claim will have to be upheld by the SoP applicable to the condition in question. The provisions that govern the application of the (SoPs) in the MRCA are modelled on sections 120A and 120B of the VEA. The Repatriation Medical Authority (RMA) determines the SoPs in respect of a particular kind of injury, disease or death based on the VEA definitions of "injury" and "disease" (which are also to be found in the MRCA) according to "sound medical-scientific evidence" as defined in subsection 5AB(2) of the VEA. The "beyond reasonable doubt" SoPs apply to claims arising out of warlike and non-warlike service (section 338). The "balance of probabilities" SoPs apply to claims for liability arising out of peacetime service (section 339). Persons eligible to make a claim under the MRCA, organisations representing members covered by the MRCA and the MRCC have the right to seek RMA investigations and reviews of the SoPs and to appeal to the Specialist Medical Review Council. The latest SoP available at the time of either the determination, or subsequent review of a determination, in respect of a claim for liability is the SoP applied. Determination of MRCC overriding SoPsThe MRCA contains the power equivalent to section 180A of the VEA that will allow the MRCC to issue a determination that overrides the SoPs in certain circumstances.
CHAPTER 8 - RECONSIDERATION AND REVIEW OF DETERMINATIONSOverviewThe MRCA provides the choice of two separate avenues of appeal following an original determination by the MRCC (or the Service Chief in the case of rehabilitation for serving members). They are:
The person is advised of their options regarding the appeal pathways when the original determination is made. The person’s choice of pathway is binding once a person has lodged an application to the VRB or a request for MRCC reconsideration. In addition to reviews and reconsiderations of original determinations initiated by the claimant, the MRCC can initiate a reconsideration of a MRCC original determination and the Service Chief can initiate a reconsideration of a Service Chief original determination, provided that no decision reviewing the original determination has yet been made by the VRB or the AAT. A delegate not involved in the original determination must do the reconsideration. This reconsideration power is provided under section 347 of the MRCA and is similar to the Repatriation Commission’s power to initiate a review of a VEA decision under section 31 of the VEA. Notifying original determinationsAn original determination by the MRCC or Service Chief must be provided to the claimant in writing, specifying the reasons on which it is based and providing information on the reconsideration and review provisions that apply. Where a member was still serving at the time the claim was made for acceptance of liability for injury, disease or for compensation for permanent impairment, the MRCC must provide a copy of the determination and reasons for it to the relevant Service Chief. The MRCC must also provide the relevant Service Chief with a copy of a determination relating to a service death and the reasons for it, if the deceased was still serving at the time of death. The Service Chief must also give a copy of the notice to the MRCC if the Service Chief makes an original determination in relation to a claim. Determinations that can be reconsidered or reviewedThere are a number of original determinations made under the MRCA that can be reconsidered or reviewed. These include, but are not limited to determinations about:
Determinations that cannot be reconsidered or reviewedThe following decisions cannot be reviewed or reconsidered under the MRCA:
For the full list of determinations that cannot be reconsidered or reviewed, see sub-section 345(2) of the MRCA. The VRB pathwayThe following is a summary of the steps that apply:
Where the claimant has applied for a review of the VRB’s determination to the AAT, the MRCC or Service Chief can vary that decision with the consent of the claimant. This will only happen where the claimant and the MRCC (or Service Chief) agree on what should be done to resolve the case. The MRCC reconsideration pathwayThe following is a summary of the steps that apply:
There are restrictions on the admissibility of evidence being lodged within 28 days of the AAT hearing date in certain circumstances. The MRCA contains provisions about recovery of a person’s costs associated with the AAT application. Legal aid for AAT applications and payment of costsLegal aid may be available for AAT review of a VRB decision involving warlike or non-warlike service subject to the merit of the claim, that is, whether the facts and the law could support acceptance of the claim. For AAT review of a VRB decision relating to peacetime service, legal aid may be available subject to the merit test as well as a means test on all the claimant’s income and other priorities determined by the State Legal Aid Commission. If a person seeks an AAT review of a MRCC or Service Chief reconsideration, legal aid may be available subject to a merit test and a means test. Where the AAT has reviewed a MRCC reconsideration, the AAT can order the Commonwealth to pay some or all of the costs incurred by the claimant in relation to the AAT matter where the AAT has varied or set aside a determination and found in the claimant’s favour. The AAT cannot order costs against the Commonwealth if the AAT is satisfied that the claimant failed to comply with a request of the MRCC to provide facts or information which, if provided, would have resulted in a more favourable decision by the MRCC. There is no provision for the award of costs for AAT matters where a person appeals a decision by the VRB.
CHAPTER 9 - THE MILITARY REHABILITATION AND COMPENSATION COMMISSION (MRCC)EstablishmentThe MRCA provides for the establishment of the MRCC. This is a statutory body similar to the Repatriation Commission. It has similar powers and functions under the MRCA to the Repatriation Commission under the VEA. Apart from the core business of case management, the MRCC has broader functions such as the promotion of research into the health of members and former members, the prevention of injury and disease and rehabilitation of persons from injury and/or disease. Reporting arrangements are established to ensure that lessons learned on members’ health and welfare matters are shared between the Departments of Defence and Veterans’ Affairs, the MRCC and the Repatriation Commission. The MRCC will report annually to the Parliament through the Minister for Veterans’ Affairs. CompositionThe MRCC comprises the following persons:
The Chair and Deputy Chair are ex-officio members. The other members of the MRCC are appointed by the Governor-General on the recommendation of the Minister for Veterans’ Affairs. Appointments are for a period not exceeding three years and members hold office on a part-time basis. StaffThe Department of Veterans’ Affairs provides staff to assist the MRCC in the performance of its functions. DelegationsMRCC may delegate its decision-making powers to:
Mostly, these delegations are to staff of the Department of Veterans’ Affairs.
CHAPTER 10 - LIABILITIES ARISING APART FROM THIS ACTOverviewThis Chapter:
The MRCA creates a statutory, no fault compensation scheme which is intended to replace the common law as a means of obtaining compensation for injury, disease or death due to ADF service. Consequently, there are some limitations on the circumstances under which common law action may be sought and limitations on what compensation can be paid where common law damages are sought. Common law damages may only be awarded if the court is satisfied that someone else was at fault in causing the injury, disease or death. Common law action by members and former membersA member or a former member (or the legal personal representative in the case of deceased members) can choose to sue the Commonwealth or another member at common law for damages for non-economic loss in respect of an injury or disease for which compensation is payable under the MRCA. However, such common law action cannot be taken if the member or former member has already been paid permanent impairment compensation under the MRCA for the injury or disease. If a person decides to make a claim for common law damages, they must notify the MRCC of this in writing no later than seven days after the day the common law claim was lodged. No permanent impairment compensation can be paid after the date the MRCC receives notification of the choice to sue at common law. Consequently, if the common law action is not successful, or the person is dissatisfied with the outcome of that action, they cannot subsequently apply for compensation under the MRCA for any non-economic loss suffered due to the injury or disease. If common law damages are awarded (either by the court or through an out of court settlement of a claim), the claimant must notify DVA of the details in writing within 28 days of the day damages are recovered. The MRCA limits the amount of any common law damages a Court can award to $110,000 and there is then no entitlement to permanent impairment compensation under the MRCA for that injury or disease. Common law action by a dependant of a deceased memberA dependent of a deceased member is not prevented from suing the Commonwealth or another member in respect of a service death whether or not the deceased member had chosen to sue the Commonwealth for non-economic loss. If a dependant decides to make a claim for common law damages in respect of the member’s death, they must notify the MRCC of this in writing no later than seven days after the day the common law claim was lodged. If the dependant recovers damages for the death, the dependant must notify the MRCC of the details within 28 days of the day the damages are recovered. The dependant will need to repay the Commonwealth the death benefits already paid under the MRCA and will not be entitled to further compensation for the death under the MRCA. Common law action against a third partyIf a member or former member is injured, contracts a disease or dies as a result of MRCA service and a third party (someone other than the Commonwealth) appears liable to pay damages for that injury, disease or death, common law action can be taken against that third party. The plaintiff can be the member or former member, the legal personal representative of a deceased member or a dependant. The MRCC may also make a claim against the third party in the name of the plaintiff or take over the plaintiff’s claim. If the plaintiff recovers damages from a third party, the plaintiff must notify the MRCC of the details within 28 days of the day the damages are recovered. The plaintiff will need to repay the Commonwealth the compensation already paid under the MRCA for the injury, disease or death and further compensation is not payable. Where a claim against a third party is made, or taken over by the MRCC, damages awarded are paid to the Commonwealth. The MRCC must then deduct an amount equal to the compensation already paid under the MRCA for the injury, disease or death plus any amount for costs paid by the Commonwealth in connection with the claim, before paying the balance (if any) to the plaintiff. The plaintiff is not entitled to further compensation for the injury, disease or death until the amount of MRCA compensation that would have been payable exceeds the amount of damages recovered.
CHAPTER 11 - MISCELLANEOUSOverviewThis Chapter addresses administrative matters not addressed in other chapters of the MRCA. IndexationThe MRCA contains a similar provision to section 13 of the SRCA, providing indexation each 1 July in accordance with increases in the CPI for the following payments:
Indexation occurs annually on 1 July where there is a positive movement in the CPI and is based on the change in the CPI index number as at 31 December for the previous year and the year before that. Obtaining and giving informationMRCC delegates have specific information gathering powers based on sections 127, 128, 129 & 130 of the VEA. These include:
Recovery of overpaymentsAn overpayment of compensation is recoverable under the MRCA where it is paid as a consequence of false or misleading information or where it should not have been paid. The overpayment can be deducted from any compensation owed. Recovery of overpayment to retired personsIf a member or former member was a member of a Commonwealth superannuation scheme immediately before retiring, that person must, within 14 days after they retire, notify the MRCC of:
An overpayment of incapacity payments or SRDP which occurs because the superannuation has not been taken into account, can be recovered from any superannuation owing to the member with the agreement of the fund administrator. Special assistanceThe MRCC has the discretionary power to provide special assistance to a member, former member or dependant that is not available to the person under the MRCA or the VEA. This provision is similar to section 106 of the VEA. Assignment, set-off or attachment of compensationsThe compensation payments under the MRCA are protected from being alienated in favour of a third party, except in the following circumstances:
Extraterritorial offencesThe MRCA includes an equivalent to Part 9, section 108 of the SRCA, which relates to the jurisdiction of courts with respect to extraterritorial offences against the MRCA committed outside Australia. Write-off or waiver of debtsThe MRCC has discretion to write-off or waive a debt. A write-off means that the debt is regarded as irrecoverable but may be pursued later. A waiver means the debt is no longer owed. Payment of benefits into bank accountThe MRCA provides for the payment of compensation benefits into a bank account nominated by the entitled person. TrusteesSection 432 of the MRCA enables the MRCC to appoint a trustee to manage a person’s compensation payments where:
RegulationsSection 439 contains the power to make regulations in relation certain compensation for cadets and declared members. Section 440 has a general regulation making power. |
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