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LSB March 2018_Web


MILITARY LAW Compensating our defence personnel: why the system is so complex TIM WHITE, PARTNER, TINDALL GASK BENTLEY INTRODUCTION It is the hidden cost of war – mentally, physically and fiscally – forgotten about long after our Defence men and women have finished serving our country, but the ramifications, impact and legal claims can last much longer. In the book “The Three Trillion Dollar War”, its authors estimated the total cost to the United States’ for its involvement in the Iraq and Afghanistan conflicts was in the order of US$3 trillion dollars. A key factor in this enormous amount was payments to veterans injured in these conflicts. From a US perspective the authors estimated that 40% of veterans will return with an ongoing disability that will be subject to a claim and funding by their Veteran Affairs. Admittedly, the experience in Australia will clearly involve significantly lesser sums, however, there will still be a significant proportion of ADF members who have been injured and will make claims with the DVA in the years ahead. All Australian service men and women, if injured in Australia or overseas, have a potential entitlement to compensation under the Military Rehabilitation and Compensation Act 2004 (“MRCA”). The extent of any remedy available to them depends on the extent of their injury or injuries and where the injury occurred. The Department of Veteran Affairs (“DVA”) recently reported that it assists some 291,000 clients. That is, currently there are approximately 291,000 veterans, ADF serving members and/or widows receiving some income/pension and/or medical support from the DVA. However, the claims process can be complicated. Here I will explain the various pieces of legislation that apply to Defence members and veterans and breakdown some of the more complex aspects of the different Acts. WHY ARE THESE CLAIMS SOMETIMES COMPLICATED? Many of the challenges with military compensation claims arise because of historical issues. Over several decades various pieces of legislation have been created to provide for the entitlements to military individuals injured during the course of their duty. Each of these different pieces of legislation set out vastly different criteria that must be met for an injury or disease to be deemed service related. Then, once the causation aspect has been fulfilled, the compensation or entitlements an injured service person may recover varies considerably between each piece of legislation. This patchwork quilt of legislation makes it difficult to compare compensation amounts between different individuals. WHAT ARE THE VARIOUS RELEVANT PIECES OF LEGISLATION APPLICABLE TO ADF MEMBERS & VETERANS? One of the first Commonwealth laws relevant to military members was the Commonwealth Employees’ Compensation Act 1930. This Act was not specific only to military members, but rather covered civilian Commonwealth employees as well. It essentially established a weekly pension entitlement, that was payable until age 65. There were no payments for pain and suffering, or any payments for a permanent injury or disease. The next piece of legislation enacted was the Compensation (Commonwealth Employees) Act 1971. Again, this legislation applied both to civilian and military Commonwealth employees. It again offered a weekly pension scheme. These payments were again payable until retirement age. There were no payments for pain and suffering or permanent injury or disease. Next was the Safety, Rehabilitation and Compensation Act 1988 (“SRCA”). Again this Act applied to both civilian and military Commonwealth employees. This was a more modern and comprehensive piece of legislation that gave individuals injured in the course of their work a more reasonable entitlement to compensation. It provided for weekly payments - effectively a person’s income paid on a weekly basis if they could not work - reasonable medical expenses, and a lump sum payment if they suffered a permanent impairment. Also available was rehabilitation funding in order to assist an injured Commonwealth employee in getting back to work. A permanent impairment payment allowed for a sum amount of money to be paid effectively for pain and suffering. However, it was only payable provided the injury or disease equated to a permanent impairment of 10% or more. The higher the level of permanent impairment the greater amount of compensation payable. Next came the Veterans’ Entitlements Act 1986. This was the first piece of Commonwealth legislation that applied specifically and only to ADF members and/or veterans. This Act has been used to compensate individuals that have been injured particularly from their service in World War II, the Vietnam War, the Korean War and the East Timor conflict. Currently the bulk of individuals that have claims with the DVA are covered under the VEA. This scheme does not allow for any payment of pain and suffering, for example by way of a lump sum payment. It does not provide for a weekly payment, similar to the level of income being earned at the time the military member last worked. Rather, it provides for a pension scheme payment and medical expenses. That is, depending on the extent of a person’s medical impairment, they receive a pension per week, payable for life. However, the pension amount payable is fairly nominal, and considerably less than what a person would have been earning full time in the military. On occasions this pension can be payable once a veteran dies, namely to his or her surviving spouse. The final and currently relevant piece of legislation is the Military Rehabilitation and Compensation Act 2004 (“MRCA”). Commencing in July, 2004, it covers service men or women that have been injured either in Australia or overseas on or after July, 2004. It provides for a weekly payment, based on the individual’s earnings at the time they ceased work, which reduces down to 75% after 45 weeks. Medical expenses are also payable for the accepted medical condition. There is also provision for a lump sum payment if the injury or injuries give rise to a permanent impairment score of five points or more. The greater the extent of the permanent impairment the more that is payable as a lump sum. There are also rehabilitation entitlements under this Act. 8 THE BULLETIN March 2018

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Platform July 2018