Defence Force Members

Why is my military compensation claim so complicated?

Making a claim for military compensation is 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.

Making a claim for military compensation is 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.


Why are military  compensation claims so complicated?

Many of the challenges with military compensation claims arise because of historical issues.  Over the years there have been various pieces of legislation created to cover the entitlements of military individuals injured in the course of duty.

Each of these different pieces of legislation set out vastly different criteria that need to be met for an injury or disease to be deemed service related.  Further, the compensation or entitlements for an injured person covered by these different pieces of legislation varies greatly.  This makes it very difficult to compare compensation offers for military injuries between individuals.  The amount of compensation payable, how the compensation is paid or calculated, and when the compensation is actually paid varies considerably depending on which legislation applies. This is why the size of compensation offers from the Department of Veteran’s Affairs can fluctuate.

What are the various relevant pieces of legislation?

One of the first Commonwealth laws relevant to military members was the Commonwealth Employees’ Compensation Act 1930.  However, it was not specifically designed for military members as it also covered civilian Commonwealth employees.  It established, essentially, 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-type scheme if one was injured and unable to work.  These payments were again only payable until retirement age.  Medical expenses related 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.  This also applied to civilian and military Commonwealth employees.  It was a more comprehensive piece of legislation that gave an individual entitlement to a lump sum payment for pain and suffering if they suffered a permanent impairment of 10% or more.  It was similar to earlier legislation in the sense that compensation for an inability to work occurred by way of weekly payments.  This payment was reflective of the salary the individual was earning at the time they ceased work and was payable until age 65.  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 Commonwealth military employees.  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. In particular, they needed to have completed at least three years of continuous service before 1994.

Under this Act the compensation was essentially a disability pension. The person’s salary at the time they were injured was ignored when calculating what pension was payable.  An important difference was that the pension continued beyond the age of 65 and was payable for life.  In certain circumstances, if the individual was receiving a higher rate of pension, such as a total and permanent incapacity pension (TPI), when the individual died that pension was then payable to his or her spouse.  Again, medical expenses relating to the accepted injury were payable as well. If a member was drawing a TPI all of their medical expenses were covered, whether for the accepted injuries or not. This is referred to as the “gold card”.

Which legislation covers me?

As outlined above, there are various pieces of Commonwealth legislation that could apply to an injured military member.

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 or condition. 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. In most cases 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.

To recap, the legislation that applies to your claim, which in turn decides what compensation could be offered, is determined by when your injury occurred. Each piece of legislation detailed above provides for very different compensation payments. In short, what is potentially payable varies considerably.

What entitlements exist under the MRCA scheme?

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

If an injury or disease is accepted under the MRCA, a 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 they have a permanent disability of 5 or more points.

These claims are assessed and managed by the Department of Veterans’ Affairs (DVA).

Rehabilitation is a large aspect of this scheme, and weekly payments are certainly not payable indefinitely or to age 65.  Weekly payments can be reduced via a number of means, but certainly undertaking actual employment or suitable employment being identified would result in a reduction or a ceasing of weekly payments.

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

The first thing to consider with a MRCA claim is whether the injury or disease arose out or was attributable to any service in Australia or overseas.  There is a different causation test depending on where the condition arose.

It is also important to determine the diagnosis of the specific injury or disease that is being claimed. Again the causation test depends on what the actual injury or disease is.

These causation questions under MRCA are determined by reference to  documents called Statement of Principles (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.

By way of an example, if an ADF member has injured his lower back, due to military service, and it has been diagnosed as  lumbar spondylosis, the relevant SOP is number 62 of 2014, if the injury arose whilst undertaking service overseas. To fully understand how the SOP’s apply you really have to consider them closely. But briefly, there are a number of factors set out in paragraph 6 of this SOP, that must be fulfilled  in order for the condition to be service related.  One of the relevant factors contained  in paragraph 6 is “having sustained a trauma to the spine at least one year before the clinical onset of lumbar spondylosis”.

In this simple but common example what  becomes important to ascertain early on is whether the individual has sustained an incident in service that fulfils the definition of a trauma.  Trauma is defined in the SOP to be basically a discrete event involving the application of significant force.

So here  the member must establish that the lumbar spondylosis developed within a year of having experienced significant physical force to the lower back.  Unless that factor or another other factor contained in paragraph 6 of the SOP can be fulfilled, the lumbar spondylosis condition, even if it exists, will not be accepted as having been caused by the military.

I hope by this short example you can see the significance that the SOP documents has under the MRCA scheme.

Conclusion

In view of these complexities it is vital you seek legal advice when making a military claim or if you have had a claim denied.  It may be that the legislation appropriate to your claim has not been applied.  It may also be that the compensation the DVA has determined is payable is incorrect or less than what you are actually entitled to.

If you need any legal help with your claim, register here or contact Tim White. Tim specialises in military 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.