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LSB March 2018_Web

MILITARY LAW WHICH

MILITARY LAW WHICH LEGISLATION COVERS AN INJURED ADF MEMBER? Generally speaking the legislation applicable is determined by the date the injury or disease arose. So it becomes important to ascertain early on when this occurred. Then aspects of causation and entitlements can be determined depending on which legislation applies. A common mistake is believing the legislation applicable to an injured ADF member is the legislation that existed at the time of the member’s discharge from the military. That is incorrect. The relevant date is when the injury or a disease occurred. Depending on the nature of the injury or disease, determining this date can sometimes be difficult to ascertain but it is vital to try and do so. 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 of 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 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 (SOPs). 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. For 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. HOW ARE PSYCHOLOGICAL CONDITIONS DEALT WITH UNDER THE MILITARY COMPENSATION SCHEME? Unlike the Return to Work Act 2014, which applies to work injuries here in SA, under the MRCA scheme there is no difference in the causation test when determining if a physical or psychological condition is service caused. For any psychological condition the causation considerations are again set out in the applicable SOP. For example, in relation to Post Traumatic Stress Disorder (“PTSD”), a condition that is increasingly affecting ADF members, the relevant factors that must exist, in order for PTSD to be found to be military caused, are contained in the SOP number 82 of 2014. This SOP relates to operational service, or service overseas. The critical causation question under this SOP relates to whether or not the member has experienced a Category 1A or Category 1B stressor. Initially, the critical issue for an ADF member claiming PTSD is to establish that they have experienced either a Category 1A or Category 1B stressor prior to the clinical onset of PTSD. If that criteria, or one of the other factors contained in paragraph 6 of the SOP cannot be fulfilled, the condition will not be accepted as having been military caused, even if they currently have been diagnosed with PTSD. Not surprisingly psychological conditions are becoming an ever increasingly diagnosed service caused condition. It has been reported that 1 in 4 claims with the DVA include a claim for a service caused psychological condition. According to the Australian Institute of Health and Welfare, from 2001 to 2014 a total of 292 defence servicemen and women tragically took their lives. It should be noted this number only takes into account personnel who joined from 2001. Meanwhile, the suicide rate for former Australian defence servicemen aged 18-24 is almost double the national rate. WHAT ENTITLEMENTS EXIST UNDER THE MRCA SCHEME? Briefly, 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 five 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. SUMMARY As illustrated, military compensation claims are complex and involve a consideration of very different issues to those that often arise with claims under the Return to Work Act or other work injury schemes that exist throughout Australia. It is by no means a perfect system. The claims process can be painfully slow and bureaucratic, characterised by restrictive conditions and confusing criteria, causing considerable stress for the claimants. However, under the MRCA, once the condition is accepted, ADF members are now far more fairly compensated in comparison with the earlier pieces of legislation that applied to them. B 10 THE BULLETIN March 2018

FROM THE CONDUCT COMMISSIONER Your Obligations when Billing GREG MAY, LEGAL PROFESSION CONDUCT COMMISSIONER My article in the September 2016 edition of the Bulletin dealt with various issues relating to costs disclosure, costs agreements and bills. A recent decision of the Full Court of the Supreme Court is relevant in relation to some of those issues, and to the process of billing generally. While the Full Court’s December 2017 decision in Romano 1 dealt specifically with representations that the practitioner had made to the Legal Services Commission in relation to grants of legal aid, some statements by the Full Court have much wider relevance. In particular, the Full Court said the following (my emphasis in underlining): “Legal practitioners are bound to a higher standard of honest dealing. The professionalism demanded of legal practitioners is not limited to the performance of legal work; it extends to their charging practices.” (paragraph 63) “The rendering of an account or claim for payment by a solicitor cannot, as is sometimes the case in the commercial world, be an ambit claim submitted with only the fi nancial interests of the legal practitioner in mind. A legal practitioner is duty bound, whether a client requires a formal certifi cate of the kind used by the LSC or not, to pay close attention to his or her account to ensure that only a fair and reasonable claim for work actually done is submitted.” (paragraph 83) From my perspective, if a practitioner doesn’t fulfil that duty, and as a result the client is overcharged, then it may well give rise to a finding of misconduct on the part of the relevant practitioner. A few examples might help. In my earlier article, I noted that the exemption from costs disclosure if the total legal costs in a matter aren’t likely to exceed $1,500 (excluding GST and disbursements) (clause 13(1)(a) of Schedule 3 of the Legal Practitioners Act) did not also exempt you from the requirement to have a written costs agreement if you intend to charge costs on any basis other than an applicable scale. So, if you don’t have a written costs agreement for that type of matter, then you can only charge costs according to the Supreme Court scale. The Supreme Court scale makes no provision for any kind of “file opening fee” or “administration fee”. Nor is there any provision for a practitioner to charge generally for “research”. The Act itself says that you can only charge scale in these circumstances. Therefore, anyone who charges for these type of items which aren’t provided for in the scale is clearly not fulfilling his or her duty to only make “a fair and reasonable claim” – that is, to charge only what the Act says you can charge. With or without a costs agreement, excessive and inappropriate charges may well also be a conduct issue. It is not uncommon for a practitioner to delegate some work on a file to a junior practitioner. That work then usually needs to be settled by the supervising practitioner. If the firm’s charges are determined on an hourly rate basis (i.e. The client should not pay any more than he or she would have been charged had the work been done properly in the first place. under a valid costs agreement), then it may be appropriate for a certain amount of the time spent on that task to be billed to the client. However, it will not always be the case (indeed, it might only rarely be the case) that all of the time spent by both practitioners can be billed. The client should only be billed for “a fair and reasonable” amount of that time. That is, a client shouldn’t be charged for the time spent for a junior practitioner to “learn on the job”. The cost of training junior staff and the efficient allocation of work within a firm is a cost incurred for the benefit of the firm, rather than the client. Junior practitioners are invariably told to “record all of their time”. However, when it comes to considering that time in order to raise a bill, the supervisor “is duty bound” to make sure that the client receives a fair and reasonable bill that does not include an element of “double handling” of work within the firm. The same applies for work that is done poorly, and therefore needs to be re-done. The client should not pay any more than he or she would have been charged had the work been done properly in the first place. And of course there is some work that is done in relation to a file, but which is for the firm’s benefit rather than for the client’s. For example, work done in preparing a costs agreement, responding to costs queries, responding to enquiries from my office following a complaint by the client etc. None of these matters can properly be charged to the client. If they are charged to the client, then again the practitioner may not be fulfilling his or her duty. B Endnotes: 1 Legal Profession Conduct Commissioner v Romano [2017] SASCFC 167 March 2018 THE BULLETIN 11