Making a military compensation claim can be complicated. Sadly, because of this, individuals often have their claims denied or receive less compensation than they deserve. Had they received legal advice there is a chance the outcome could have been different. In this blog, Tindall Gask Bentley partner Tim White will explain the process and your options.

Many of the challenges with military compensation claims arise because of historical issues. Over the last several decades there have been various pieces of legislation created to cover the entitlements of defence force members injured in the course of duty.

Each of these different pieces of legislation set out vastly different criteria that need to be fulfilled for an injury or disease to be accepted as being military service related. Further, the compensation or entitlements for an Australian Defence Force (ADF) member covered by these different pieces of legislation varies greatly. This makes it very difficult to compare compensation payable between different individuals.

What are the various relevant pieces of legislation?

One of the first Commonwealth laws relevant to ADF members was the Commonwealth Employees’ Compensation Act 1930.  However, it was not specifically designed for ADF members as it also covered civilian Commonwealth employees.  It established a weekly pension entitlement until the retirement age of 65 if you were injured and unable to work. There were also very limited payments for pain and suffering, for any permanent injury.

Following that was the Compensation (Commonwealth Employees) Act 1971.  This legislation again applied to both civilian and military Commonwealth employees, offering a weekly pension scheme also.  These payments were again only payable until retirement age.  Medical expenses relating to the injury were also covered.  There were only minimal payments available for any pain and suffering arising from a permanent injury.

Next was the Safety, Rehabilitation and Compensation Act 1988 (now DRCA for ADF members).  This also applied to civilian employees and ADF members.  It was a more comprehensive piece of legislation that gave an individual entitlements to a lump sum payment for pain and suffering. But only  if you experienced a permanent impairment of 10% or more.  It also provided for weekly payments if you could not work.  Medical expenses relating to the work injury were also payable and covered.

The Veterans’ Entitlements Act 1986 was the first piece of legislation developed specifically for ADF members. It mainly applied to individuals injured during military service, whilst on an operational deployment overseas.  It also gave cover for limited individuals injured in Australia, provided they had been serving during particular dates. There is no lump sum payment payable though, it is only a pension scheme that also pays medical expenses. If you could not return to any form of work, you may qualify for a TPI pension and a ” Gold Card”.

What is the current applicable law? The MRCA scheme

The Military Rehabilitation and Compensation Act 2004 (MRCA) provides rehabilitation and compensation coverage for defence force members who served on or after 1 July 2004.

If an injury or disease is accepted under the MRCA, a defence force member is entitled to weekly payments (which broadly should equate to what they were earning in the military at the time of discharge), reasonable medical expenses in regards to the accepted injury or disease, rehabilitation assistance and a permanent impairment payment if that defence force member has a permanent disability of 10 or more points.

Permanent Impairment (PI) payments under MRCA can be considerable, sometimes hundreds of thousands of dollars. It is important to obtain professional advice about your entitlements generally but especially in relation to what is payable to you via the PI payment.

Weekly payments can be paid until age 65 or 67.  Weekly payments can be reduced via a number of means, but certainly by undertaking actual employment.

What is the causation test to establish a military condition under MRCA?

Causation questions under MRCA are determined by reference to documents called Statements of Principle (SOP’s).  These documents are developed and approved by the Repatriation Medical Authority (RMA).

The SOPs set out the minimum requirement that must exist for a particular condition to be deemed to be military caused.  That is, if a particular injury or disease is going to be accepted as having been caused or attributable to military service, they must fulfil the criteria as set out in the relevant SOP.

Which legislation covers me?

Firstly, all these schemes are managed by the DVA.

Whilst it is not always the case, generally the legislation that will cover you is determined by the date your injury occurred. So, an important initial consideration is to determine when you sustained your injury. The legislation that was in place at that time will, in most circumstances, apply to your claim.

People often think the legislation relevant is the one in place at the time you make your claim. That is certainly not the case.

Another common misconception is the legislation that applies to your claim is the one in place at the time you were discharged from the military.  Again, that is usually not the case.

Conclusion

Because of the complexities about which legislation applies to you, it is vital to seek legal advice early on when making a DVA claim. Even before you submit the claim form to the DVA ideally. That will ensure you have the highest likelihood of your claim being accepted.

If you have a letter from the DVA that you are unsure about or disagree with, that is another vital time to seek legal advice. You can appeal most decisions, but must act fairly quickly as some time limits apply.

Lastly, remember which Act your injuries are accepted under will determine what is payable to you. PI payments especially under MRCA and DRCA can be considerable so getting professional advice with those can make a significant difference.

Get in touch!

If you are a defence force member or veteran and need any legal help with your military compensation claim, register here or contact TGB Partner, Tim White. Tim specialises in military compensation claims and is a Legal Officer in the Royal Australian Air Force Reserves.

Please note TGB can assist current and former ADF members Australia-wide with any advice relating to DVA claims or military compensation claims.