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Case Study: Medical Discharge from the Australian Defence Force

This case study explores an example of a military member being medically discharged from the Army due to his military caused injuries and discusses what entitlements are available to him as a consequence of that decision. Also covered is an analysis of the relevant legislation and how it will impact individual claims. This case study has been prepared by experienced Defence Lawyer and TGB Partner Tim White.


 

Being medically discharged from the military is a daunting and significant event for any individual. In addition to the challenges arising from dealing with a long-term physical injury there is both the psychological impact of dealing with the reality of being discharged from your military career and a financial impact of losing your stable income. These factors combine to create a truly difficult situation for individuals and their families.

I see an increasing number of defence force personnel being medically discharged due to injuries that have occurred as a result of their military service or otherwise. In both circumstances there are important steps to take to try and ensure that some financial protection occurs for the individual effected and their family. Taking certain steps ultimately can ensure greater personal and financial wellbeing and security.

Case Study – The Details 

This case study concerns assisting an Army veteran who had been in the defence force for more than 20 years. His body was broken as a consequence of the very physical work he had undertaken in the army. Eventually his shoulder and lower back became so severely damaged that he was not able to undertake his expected duties and nor could he pass the required annual fitness assessment.

Medical  Downgrade –

As a result of these factors his medical classification was downgraded to MEC 4 and this began the road to discharge.

An enormous amount of documentation and paperwork came next, along with medical appointments and interviews. This caused significant stress and concern for my client as he needed to consider the likelihood of leaving a career he loved and life after the military. The financial reality of his military income ceasing was also a cause of significant stress.

Assessment by the Medical Employment Classification Review Board –

After several months his matter came to be considered by the Medical Employment Classification Review Board (MECRB). The Board decided that in view of his shoulder and lower back injuries, it was unlikely that he would be able to perform his required and usual duties, and he was accordingly assessed at MEC 5. That medical classification meant a notice of termination from the Army would be forthcoming shortly.

As a result of the termination notice my client now had a date to be mindful of whereby he knew his service in the Army would be completed and he would be on his own. As a result of that notice again he was confronted with  an enormous amount of information and documentation that needed to be completed. What forms he completed, the information he put in this material and which forms he sent off would have a huge impact on his future and that of his family. It was at this stage that my client thankfully approached TGB to enable us to assist with his transition from the military to civilian life outside the defence force.

Being Medically Discharged –

With any member being medically discharged there are a number of critical aspects to consider and ensure that certain forms are completed and lodged well before the discharge date. As this member had a number of military caused injuries the first consideration was to determine which legislation covered his injuries. There are a number of potentially relevant pieces of legislation for injured defence force members including the Veterans Entitlement Act (VEA), Safety Rehabilitation and Compensation Act (SRCA) and the Military Rehabilitation and Compensation Act (MRCA).

A number of important factors need to be taken into account when determining which legislation applies. Different claim forms need to be completed and very different compensation payments are made under these three different pieces of legislation. In this case because his injuries had occurred after July 2004, the MRCA applied. TGB assisted him with completing the relevant claim forms, accurately answering the relevant questions, lodging the documents with the correct offices of the DVA and/or Military Super and importantly ensured that there was medical evidence also submitted which clearly supported that the injuries had being caused by his military service.

As the member was being medically discharged it was also important to lodge similar paperwork with the Military Super, referred to as Military Superannuation and Benefit Scheme (MSBS).  The MSBS is established by the Military Superannuation and Benefits Act 1991, and it applies to the majority, but certainly not all, defence force personnel. As the member was being medically discharged, it was vital that a claim for his shoulder and low back injuries was also lodged with MSBS. It was vital to make this claim also, even though it is covering almost the same aspects and involves similar documentation to that which was sent to the DVA.

Under MSBS there are three types of pension potentially payable, referred to as Class A, Class B and Class C pensions. Each type of pension gives rise to different entitlements.

The result –

In this case because of the severity of his injuries, he was classified as being entitled to a Class A pension. This meant that he was entitled to approximately 75% of his usual military wage, as a pension under the Military Superannuation and Benefit Scheme. That pension should continue until he turns age 65. In addition he also received payments from the DVA and was able to claim costs associated with ongoing medical treatment for his shoulder and low back.

As a consequence of TGB assisting the member there was only a small gap between when he ceased being paid by the military, on his date of discharge, to when he then started receiving payments from the DVA and MSBS.

Often I see considerable delay, sometimes months or years, between when a defence member discharges, and therefore ceases to be paid by the military, and when they first receive any compensation payments from the DVA or MSBS.  Any significant gap in receiving payments clearly puts significant financial strain and worry on the individual and their family. The timing of lodging these forms is vital to try and minimise this delay in payments.

It is also not just a matter of making sure the right forms are completed, it is equally vital to ensure that all necessary supporting documentation is submitted at the same time.

During the course of the process of securing payments from the DVA and the MSBS, this member also relocated overseas.  Despite that occurring TGB were still able to assist him on an ongoing basis even though he was living outside of Australia. The payments received under MSBS, and the DVA, equalled what he was receiving at the time in the military, when he was discharged. He was also able to continue to claim for medical treatment relating to his accepted shoulder and back injuries through the DVA.

Whilst he remains unable to work due to his military injuries these payments under MSBS and DVA  should continue until age 65.  In addition to these payments he is also entitled to a lump sum payment for the permanent impairment caused to his back and shoulder.  That payment cannot be assessed until these injuries have stabilised which will take some months still to occur. But this further lump sum payment could be considerable.

Thankfully this member, who had suffered significant injuries in the military, obtained assistance from TGB early on, which ensured that the appropriate forms were lodged, with the necessary agencies, and as a result of our assistance there was virtually no gap between him discharging from the military and then receiving payments from the DVA and MSBS.  This provided the member and his family with some financial security and peace of mind.

Summary –

This case study highlights the importance of getting good advice early on if you have been medically downgraded, or are facing going to the MECRB or are looking at being medically discharged.

For further information or assistance, seek advice early and contact an experienced TGB  lawyer.

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