Workers Compensation Schemes - Independent Assessments
Thank you for your question relating to a comparison of independent assessment models, received on 19 July 2021 by email.
Following testimony heard by the Joint Standing Committee for the National Disability Insurance Scheme, you have requested information on the New Zealand, Victorian and Queensland workers/motor vehicle compensation schemes. Specifically, you have requested information on medical assessments, including:
(1)
what types of medical assessments are required to be undertaken
(2)
who is authorised to perform medical assessments under the relevant scheme
(3)
at what stage of the process are medical assessments undertaken
(4)
how often is a person required to be assessed and
(5)
what assessment tools are used.
You requested this information by COB Friday 23 July 2021. You have also requested information on DVA supports which my colleague has provided to you in a separate advice.
Caveat
We have provided an overview of the process for conducting independent assessments for workers/motor vehicle compensation scheme in the jurisdictions you have requested (Queensland, Victoria and New Zealand). Please let us know if you require further information or information on other jurisdictions.
Detailed response
Queensland
WorkCover Queensland
Chapter 8 of the WCRA provides for the establishment of WorkCover Queensland, whose primary function is to provide accident insurance. Chapter 8 of the WCRA prescribes that WorkCover is the exclusive provider of accident insurance, excluding arrangements for self-insurers, and Chapter 2 of the WCRA details employers’ obligations, including the employers’ obligation to insure.
All worker’s compensation claims made in Queensland first need to be lodged as a statutory (no-fault) claim under Chapter 3 of the WCRA, where compensation is paid regardless of who was at fault for causing the injury.
Types of compensation paid by WorkCover Queensland include:
weekly benefits for lost wages
lump sum compensation for permanent impairment
Independent medical examinations
When are independent medical examinations required?
Section 132 of the WCRA provides that in lodging their application for compensation, an applicant must include a medical certificate from a doctor who treated their injury or in the case of minor injuries or oral injuries, a nurse practitioner or dentist. The applicant’s entitlement to compensation arises on the day in which this assessment takes place.
Section 135 of the WCRA provides that an insurer may at any time require a claimant or a worker to submit to a personal examination by a registered person at a place reasonably convenient for the claimant or worker. If a claimant or a worker fails or refuses to attend such an examination then any entitlement they have to compensation is suspended. Section 132A also allows a worker to request a permanent impairment assessment to determine if their injury has resulted in permanent impairment where they have not made a claim for compensation under section 132 of the WCRA.
Section 197 of the WCRA also states that an insurer may decide, or a worker who has made an application under section 132 may ask the insurer, to have the worker’s injury assessed to decide if the worker’s injury has resulted in a degree of permanent impairment. The degree of permanent impairment assessment will be issued to the worker in the form of a Notice of Assessment (NOA), once all injuries are assessed. Where an assessment has been reviewed then any new degree of impairment assessment replaces the previous assessment. There is no review process for these assessments.
Where the injury has not been assessed by a Medical Assessment Tribunal (MAT), the worker must respond to the NOA within 20 business days if they do not agree with the degree of permanent impairment assessment and require a fresh assessment.
Who can conduct independent medical examinations?
Subsection 179(2) of the WCRA provides that an insurer must the degree of permanent impairment assessment:
for industrial deafness—by an audiologist; or
for a psychiatric or psychological injury—by a medical assessment tribunal; or
for another injury—by a doctor.
What assessment tools are used?
Subsection 179(3) of the WCRA provides degree of permanent impairment must be assessed in accordance with the Guide to the Evaluation of Permanent Impairment (GEPI) to decide the degree of permanent impairment assessment for the injury, and a report complying with the GEPI must be given to the insurer. For psychiatric injuries, the assessment must be conducted by the General Medical Assessment Tribunal (GMAT).
The role of Medical Assessment Tribunals
For physical injuries, if the worker disagrees with the original assessment by a GEPI trained doctor (doctor), they can request referral to the MAT or ask the insurer to consider a medical review by a different doctor. The medical review process is a new step in the assessment process. WorkCover is required to decide within 10 business days of receiving the NOA response whether to have the injury re-assessed by a different doctor or refer it to the relevant MAT.
Chapter 11 of the WCRA provides for MATs which are administered by Workers’ Compensation Regulatory Services (WCRS). The MAT consists of a panel of three or five doctors who specialise in different types of injuries (for example, cardiac, orthopaedic, neurology). The tribunal doctors make a decision using the information provided by the worker and their insurer, as well as from the medical examination and interview from the tribunal hearing. A written tribunal decision will be provided after the hearing. It will include the information considered by the tribunal doctors and their reasons for making the decision.
National Injury Insurance Scheme Queensland
The National Injury Insurance Scheme Queensland (NIISQ) was established on 1 July 2016 and provides necessary and reasonable lifetime treatment, care and support to people who sustain eligible serious personal injuries in motor vehicle accidents on Queensland roads; regardless of who was at fault.
Eligible serious personal injuries include:
permanent spinal cord injuries
multiple or high-level limb amputations
permanent injury to the brachial plexus
permanent blindness caused by trauma.
The National Injury Insurance Agency, Queensland (NIISQ Agency) administers NIISQ in accordance with the National Injury Insurance Scheme (Queensland) Act 2016 and funds the necessary and reasonable treatment, care and support participants need. The types of treatment care and support covered include medical and pharmaceutical treatment, dental treatment, respite care, attendant care and support services, aids and appliances, prostheses and home and transport modifications.
Independent medical examinations under the NIISQ
Eligibility to receive treatment under the NIISQ Scheme
To receive treatment, care and support under the NIISQ, a person must apply to become a participant in the scheme. In applying a person must have a qualified medical specialist complete a medical certificate in relation to their injuries and must include, among other things, the following details about their injury:
details of the serious personal injury
information demonstrating how the serious personal injury meets the eligibility criteria for the injury
details of hospitalisation or other medical treatment the injured person has undergone for the serious personal injury, including the name and address of the hospital or medical provider that provided the medical treatment
details of any other medical condition, or injury, suffered by the injured person before or after the motor accident that may affect the person’s eligibility to participate in the scheme.
All adult participants deemed eligible for NIISQ, are accepted as an interim participant. This means that NIISQ will fund necessary and reasonable treatment, care and support services for up to two years. Towards the end of the two years, the NIISQ Agency will reassess the person’s eligibility and make a decision about whether they qualify as a lifetime participant. If eligible, NIISQ will fund their necessary and reasonable treatment, care and support services for the rest of their life.
Assessments under the NIISQ Scheme
Once a person is accepted as a participant in the NIISQ, the NIISQ Agency will undertake an assessment of the participant’s needs for treatment care and support as a result of their injury. In undertaking the assessment, the NIISQ must consult with the participant about the following maters:
the treatment, care and support the participant considers necessary and reasonable as a result of the participant’s injury
the participant’s abilities and limitations
the participant’s individual goals.
In assessing a person’s needs under the NIISQ, the NIISQ Agency must have regard to the benefit of the person, the appropriateness of service, the appropriateness of the provider of the service and its cost-effectiveness.
The NIISQ Agency also consult with any other person that it considers appropriate.
Section 23 of the National Injury Insurance Scheme (Queensland) Regulation 2016 provides that an assessment must be carried out as soon as practicable after a participant is accepted into the scheme and if an assessment has previously been carried out for that participant, then within one year after the last assessment was carried out.
After carrying out the first assessment of a participant, the NIISQ Agency must make a support plan that sets out, among other things, the relevant treatment, care or support the NIISQ Agency considers are necessary and reasonable, how this will be funded and any dates for further assessments.
Internal reviews of decisions made by the NIISQ Agency
Under Chapter 6 of the National Injury Insurance Scheme (Queensland) Act 2016, a person may apply for an internal review of a decision made by the NIISQ Agency. Where a person has requested that a matter be internally reviewed and their request involves a medical matter, they may ask the NIISQ Agency to refer the matter to a medical tribunal. The NIISQ Agency must then refer the matter to a medical tribunal which has the power to make a personal examination of the injured person to whom the referral relates at any time; or arrange for the examination to be made by a doctor nominated by the tribunal.
Victoria
In Victoria, persons injured in a workplace accident or in a transport accident may seek compensation through the Workplace Injury, Rehabilitation and Compensation Act 2013, the Accident Compensation Act 1985 or the Transport Accident Act 1986. Each Act establishes a no-fault compensation scheme under which a person can receive compensation and also allows a person to sue at common law for economic loss and non-economic loss where they have sustained a ‘serious injury’. For the purposes of this advice, we have focused on independent assessments required to be conducted in assessing a claim for compensation under the no-fault schemes.
Victorian Workers’ Compensation Scheme
The Workers’ Compensation scheme is a ‘no fault’ work related injury compensation scheme. This means that a worker’s entitlement to compensation is not a question of who was responsible for the injury but is determined by whether the injury was employment related, according to the provisions of the WIRCA.
Employers must register for WorkCover Insurance if they employ workers who work in Victoria and their annual remuneration is more than $7,500 or is expected to be more than $7,500 or they employ apprentices or trainees.
Each year the Victorian Government sets what is called the average insurance premium rate. This is the percentage of Victorian employers’ total remuneration needed to meet the cost of claims for the year. The average premium rate for 2019/20 is 1.272%.
WorkSafe annually gazettes the industry and industry claim cost rates for each industry classification. These are used in the determination of an employer’s premium based on the classification of their individual workplaces.
Independent medical examinations under the VWA
When are independent medical examinations required?
Subsection 27(1) of the WIRCA provides that the VMA or a self-insurer may require a worker who has made a claim for compensation to submit at reasonable intervals to an examination by an independent medical examiner provided and paid for by the VMA or self-insurer. If a worker refuses to undergo an independent examination, then any claim or proceeding is suspended until the examination takes place.
Who can conduct independent medical examinations?
According to the WorkSafe Victoria Claims Manual the following persons can conduct an independent medical examination under the legislation:
registered physiotherapist
Independent medical examiners must be assessed and approved by the VMA and are required to sign a WorkSafe IME Agreement setting out the standards for the services they are to provide. The VMA requires all reports prepared by independent medical examiners to meet standards relating to format, content, accuracy, consistency, and absence of bias. Further information on how reports are to be prepared is available on the WorkSafe Victoria website.
At what stage of the process are medical assessments undertaken?
Section 55 of the WIRCA states that an independent medical assessment of the degree of impairment resulting from an injury must be made after the injury has stabilised and based on the worker's current impairment as at the date of the assessment, including any changes in the signs and symptoms following any medical or surgical treatment undergone by the worker in respect of the injury.
How often is a person required to be assessed?
As noted above, subsection 27(1) of the WIRCA provides that the VMA or a self-insurer may require a worker who has made a claim for compensation to submit at reasonable intervals to an examination by an independent medical examiner provided and paid for by the VMA or self-insurer. Much will depend on the seriousness of the person’s injury. Assessments are intended to provide a guide to the injured person’s recovery process and to identify whether there will be residual physical deficit arising from the injury.
What assessment tools are used?
Section 54 of the WIRCA specifies that impairment must be assessed in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment (fourth edition), as modified by the WIRCA (the AMA Guides) or in accordance with methods proscribed by the Minister. The impairment must also be assessed in accordance with operational guidelines (if any) as to the use of those Guides or methods issued by the Minister.
The Minister may also approve a training course covering the application of any guides or methods issued about how impairment is to be assessed and require that only medical practitioners who have undertaken such training courses can provide an assessment.
The Serious Injury Manual prepared by the Judicial College of Victoria provides:
The AMA Guides set out diagnostic and evaluative criteria and an associated degree of impairment which is expressed as a percentage. The Guides also specify how multiple impairments are combined to produce a total, whole person impairment value. In applying the Guides, medical panels and practitioners must use the values and ranges set out in the Guides, rather than their professional judgment at large (HJ Heinz Company Limited v Kotzman [2009] VSC 311, [24]-[28]).
Victorian Transport Compensation Scheme
Under the Transport Accident Act 1986 (TAA), a person is entitled to receive compensation if he/she sustained an injury or died as a result of a transport accident. The Transport Accident Commission (TAC) does not consider who was at fault in the transport accident when determining whether a person is eligible for compensation under the TAA.
The TAC will pay compensation to a person injured, or to the dependants of a person who dies as a result of a transport accident that occurs:
in Victoria (regardless of whether the vehicle involved is registered in Victoria or interstate), or
interstate and which involved a Victorian registered vehicle and the person injured is:
an occupant of a Victorian registered vehicle.
Independent medical examinations under the TAC Scheme
When are independent medical examinations required?
Under subsection 71(1) of the TAA the TAC may require a person who was injured as a result of a transport accident and makes a claim for, or receives compensation or damages under the TAA, to submit from time to time for examination by one or more medical service providers nominated by the TAC. If a worker refuses to undergo an independent examination, then any claim or proceeding is suspended until the examination takes place.
Who can conduct independent medical examinations?
Subsection 71(3) of the TAA defines medical service provider who can conduct independent medical assessments to mean a:
registered occupational therapist
registered physiotherapist
At what stage of the process are medical assessments undertaken?
Under the TAA, where a person who is not a minor is injured in a transport accident, the TAC must determine the degree of impairment when the injury stabilises or 3 years after the accident (or after the injury first manifests), whichever occurs first. In the case of a minor, the TAC must assess the injury when the person turns 18 if the injury has stabilised, or, if the injury has not stabilised before the person turns 18, when the injury stabilises or when the person attains the age of 21, whichever occurs first.
Under subsection 46A(8) of the TAA, if the TAC is required to assess the degree of impairment of a person whose injury has not stabilised:
unless the contrary intention appears in this section, the degree of impairment to be assessed is the degree of current impairment as at the date of the determination of the assessment; and
any reference to permanent impairment in the A.M.A Guides is to be read as a reference to current impairment.
How often is a person required to be assessed?
As discussed above, the TAC may require a person who was injured as a result of a transport accident and makes a claim for, or receives compensation or damages under the TAA, to submit from time to time for examination by one or more medical service providers nominated by the TAC.
What assessment tools are used?
Subsection 46A(2) of the TAA specifies that impairment must be assessed in accordance with the AMA Guides, as modified by the TAA, or in accordance with methods proscribed by the Minister. The impairment must also be assessed in accordance with operational guidelines (if any) as to the use of those Guides or methods issued by the Minister.
The Minister may also approve a training course covering the application of any guides or methods issued and require that only medical practitioners who have undertaken such training courses can provide an assessment.
New Zealand Accident Compensation Scheme
History of the scheme
The legislation underpinning the Accident Compensation Corporation (ACC) scheme is the Accident Compensation Act 2001. However, the 2001 date in the legislation is somewhat misleading as New Zealand has had a similar no-fault scheme since at least 1972, following the recommendations of a 1967 Royal Commission (‘the Woodhouse Report’).
The Woodhouse Report recommended a no-fault accident compensation programme that should:
cover all motor vehicle injuries
cover all injuries to employees, whether they happened at work or not
introduce a flat levy rate that employers pay to fund the cost of all injuries to their employees
introduce a levy for self-employed people to pay for their injuries at work and outside of work
remove the right to sue for any type of injury.
The original (1972) scheme passed through Parliament with an undisputed vote. The scheme was expanded in 1973 to cover people not covered by the 1972 scheme – such as students, people not in paid employment, and visitors to New Zealand. The supplementary scheme covering these people was funded by the Government.
In short there were three strands to the scheme relating to, and funded by:
the employed, funded by levies paid by employers including self-employers
people injured in motor vehicle accidents, funded by levies paid by motor vehicles owners
everyone else, funded by the Government.
One primary aspect of a no-fault scheme is that there does not have to be a finding of negligence; the fact of the injury is sufficient to establish a claim. However, the corollary of this is that persons injured in accidents cannot sue through the civil courts process. Rather they are compensated through this no-fault scheme.
The scheme covers personal injuries, some of which are:
physical injuries, including injuries suffered over time
mental injuries as the result of a physical injury
other mental injuries suffered in certain circumstances (for example, victim of crime or work-related mental injuries such as post-traumatic stress disorder)
damage to prosthetics which replace part of the human body
treatment injuries (medical misadventure).
The New Zealand Immigration website says that if the claim is accepted:
ACC may pay a proportion of medical costs, provide assistance with home help, special aids or equipment, transport, modifications to your house or car, education, training, therapy and support.
A person who cannot work because of injury can also be paid up to 80% of their income as compensation. However, an employer pays compensation for the first week a person is off work. A claimant can also be paid lump sum compensation for a permanent impairment.
How the scheme is funded
As noted above, the scheme is funded by levies, mainly on employers and motor vehicle owners, as well as government appropriations and any earnings the ACC itself makes from its invested funds. In fact the last-named, ACC’s investments, is the primary income source of the scheme. How levies are set is a complex process, but ultimately the levies are decided by Cabinet and are published in subordinate legislation (regulations).
The most recent regulation in relation to employers is the Accident Compensation (Work Account Levies) Regulations 2019. Levies vary according to industry (and risk profile) but are generally only one or two per cent (or less) of salaries paid. There are higher figures for high risk activities such as some professional sports.
The levy for most cars on the road is $46.04 per annum. Motorcycle levies are considerably higher ($297.91 or $397.18 depending on engine size).
The ACC’s financial condition report for 2020 has noted that the scheme is in some financial difficulty, reporting a $4.8 billion deficit in 2019/20. There seems to be an implicit admission that the last setting of the levies was based on incorrect assumptions. It might be expected that these will increase in future.
Independent medical assessments under the ACC Scheme
When are independent medical examinations required?
Both the person who has suffered the injury and the relevant treatment provider who they visit to treat their injury can make a claim on the person’s behalf. Section 55 of the Accident Compensation Act provides that where a person has chosen to lodge the claim themselves they must, among other things, give the ACC a certificate by a registered health professional that deals with the matters, and contains the information, that the ACC requires, and undergo a medical assessment by a registered health professional specified by the ACC, at the ACC’s expense.
Section 72 of the Accident Compensation Act also requires a claimant to undergo assessment by a registered health professional specified by the ACC, at the ACC’s expense, upon receiving an entitlement under the Act.
Who can conduct independent medical examinations?
To be an ACC-approved Impairment Assessor the Assessor must be a Medical Practitioner who has at least general registration with the Medical Council of New Zealand (MCNZ) and three years’ post-registration clinical experience. They must hold a current Annual Practising Certificate. ACC relies on the MCNZ to assess the competence of a Medical Practitioner to hold a vocational Annual Practising Certificate.
At what stage of the process are medical assessments undertaken?
Upon making a claim, a person must undergo an impairment assessment to determine the level of impairment. ACC will consult with the person to choose a contracted impairment assessor who is qualified to assess their injury type and where possible, the person can elect which appropriate impairment assessor they would prefer to complete their impairment assessment.
ACC may need to arrange two separate independent assessments by two appropriately qualified assessors when both of the following apply:
a person suffers injuries that mean they need a physical assessment and a mental and behavioural assessment
if there is no assessor available and qualified to conduct both assessment types.
If ACC discovers that new information about a Client was available at the date of an Assessment or Reassessment but wasn’t made available to the Assessor at the time they conducted and rated the impairment of the Client, ACC can arrange an additional assessment to include the new information so that it can be considered.
A person can arrange for an additional independent assessment at any time at their own cost. If there are any points of difference because of this assessment, ACC will investigate further.
A person may also be eligible for a reassessment where:
the impairment may have increased since the date of their independent assessment
the impairment may have decreased since the date of their independent assessment (where the person is in receipt of an independent assessment).
A person is not entitled to have more than one reassessment in any 12-month period and is not required to undergo more than one reassessment in any 5-year period.
ACC may request for a reassessment for a person when:
there are reasonable grounds to believe the impairment may have decreased since the last assessment; and/or
it has been five years or more since the last reassessment.
How often is a person required to be assessed?
Under sections 55 and 72 of the Accident Compensation Act, a claimant is required to undertake a medical assessment when reasonably required to do so by the ACC.
What assessment tools are used?
The Assessment Tool refers to:
The ACC User Handbook for the AMA ‘Guides to the Evaluation of Permanent Impairment’ 4th Edition (ACC Handbook); and
The American Medical Association’s Guides to the Evaluation of Permanent Impairment 4th Edition (AMA4) (AMA Guides).
Assessors must have completed ACC approved training in applying the ACC User Handbook and the AMA Guides:
The training involves understanding the Impairment Assessment system in New Zealand, practice in using the AMA Guides and the Handbook, assessment methods, calculating impairment, and report formatting. Training is followed by a period of mentorship and collegial oversight from an experienced assessor, and a proportion of all assessment reports are Peer Reviewed by an experienced assessor to ensure compliance and quality.
To complete Chapter 14 assessments for behavioural and mental impairment, the impairment assessor must either be a psychiatrist, or be experienced in completing general assessments for physical injury for ACC and have knowledge of psychology and the diagnostic system in psychiatry/psychology (as per the Diagnostic Statistical Manual of Mental Disorders (DSM)).
The impairment assessor must also have satisfactorily completed ACC’s training courses on using Chapter 14 (assessments for behavioural and mental impairment) of the AMA Guides and the ACC Handbook.
Comment
The important difference between injured workers who received payments of workers’ compensation and applicants under the NDIS is that generally a person with an injury will improve either over time or with appropriate treatment such as surgery, physiotherapy or some other form of rehabilitation. These are often for the short to medium term. That is the reason, for instance, that the Queensland workers’ compensation scheme allows for payments of lost weekly earnings to be made for a maximum of five years.
For those persons who apply for assistance under the NDIS, payments are intended to support the independence and social and economic participation of people with disability—rather than injury.
According to subsection 24(1) of the NDIS Act a person meets the disability requirements if:
(a)
the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychiatric condition; and
(b)
the impairment or impairments are, or are likely to be, permanent; and
(c)
the impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities:
(vi)
self-management; and
(d)
the impairment or impairments affect the person’s capacity for social or economic participation.
Feedback
Please contact the author if you would like further information or explanation.
DVA assessments of impairments
On 19 July 2021, you asked:
(1)
Can you please tell me a bit about NZ and Victorian accident/workers compensation schemes – and maybe Queensland? The witness suggested that the NDIS model is more like VIC/NZ models (we just want to know the basics, particularly in relation to medical assessments used for entry to the schemes and for ongoing supports, does the applicant use their own doctor or do they have to go to a nominated Dr for assessment, is this at the initial stage or at internal review stage, how often do they have to get assessed, what assessment tools are used, etc)
(2)
Can you please tell me a bit about entry to DVA supports. (Similar to the above, i.e. does the applicant collect their own Dr certificates and take them to DVA? Do they have to pay for those Dr assessments? (a little complicated I guess if covered by Defence Health insurance). We are aware that there are also statutory requirements that must be met (caused by military service etc).
You needed this information by 23 July 2021.
Overview of veterans’ compensation schemes
There are three main Acts that provide for support and compensation for veterans and their dependants:
Veterans’ Entitlements Act 1986 (VEA), which primarily provides benefits and entitlements for those who undertook wartime service, operational service, peacekeeping service and hazardous military service before 1 July 2004, and/or peacetime military service from 7 December 1972 up to 30 June 1994
the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (DRCA) which provides coverage for illness, injury or death arising from military service undertaken from 3 January 1949 to 30 June 2004; and for certain periods of operational service between 7 April 1994 and 30 June 2004 and
the Military Rehabilitation and Compensation Act 2004 (MRCA), which provides coverage for illness, injury or death arising from military service undertaken from 1 July 2004.
Some VEA benefits, such as income support payments, are not tied to periods of service but rather the type of service (for example, whether it involved service during wartime in an area where there was danger from hostile enemy forces). Other benefits, such as compensation payments and benefits, are tied to periods of service—eligibility under one or more of the three statutes will be determined by the period of service and the timing of the event giving rise to compensation (such as an injury or death).
DVA assessments for compensation
For most compensation and benefits provided to veterans and their families under the VEA, the DRCA and the MRCA, the government needs to accept liability for an injury, illness or death before a claim can be granted. Liability involves linking the veterans’ condition to their military service. Claimants must make a case that their condition is linked to their service and this case is assessed by a DVA claims assessor.
The Productivity Commission (PC) examined the process for establishing liability in its 2019 report, A Better Way to Support Veterans. The PC found that the DVA claims assessor must make three findings to establish a link between a condition and service:
(1)
That the veteran has valid military service prior to the date of clinical onset or worsening.
(2)
That there is a valid medical diagnosis for the claimed condition.
(3)
That the onset or worsening of the claimed condition was caused by their military service.
Under the VEA and the MRCA, a predetermined list of causal factors for each condition (called Statements of Principles or SoPs) are used in most cases to link a medical condition to service. DRCA claims are assessed on a condition-by-condition basis with no formal requirement to satisfy the SoPs.
Service records
Claimants can usually provide their own service records to DVA or DVA can access records from the Department of Defence.
Medical diagnosis
The medical diagnosis of a claimed condition is based on a claimant’s medical records provided by their GP or specialist. The claim form for MRCA compensation includes a section to be filled in by a medical practitioner setting out the diagnosis, basis of the diagnosis, and date of onset of the injury or disease. The claim form notes that ‘DVA will pay you [the medical practitioner] for this service according to the relevant fee levels for the service’.
External medical assessments
The PC noted that DVA claims assessors typically do not have any medical training but can request a review of medical records by DVA’s medical advisers (typically contractors).
The PC also stated that where medical records are not provided, or they are considered insufficient to establish a diagnosis, the assessors can ask a claimant to have an appointment with an external medical assessor (paid for by DVA). DVA’s guidelines do state that reports from treating specialists are preferred. External assessors can also be used to assess the level of a claimant’s impairment once liability for a condition has been accepted.
The PC heard evidence which raised concerns over DVA’s use of external medical assessors:
A number of participants, including the Defence Force Welfare Association (sub. 118), Legacy Australia (sub. 100), David Melandri (sub. 61) and the Vietnam Veterans’ Federation of Australia (sub. 34) raised many of the same concerns. For example, Slater + Gordon suggested that DVA is using external medical assessors ‘when the delegate is dissatisfied with the treating doctor’s response’, in order to ‘“doctor shop” to seek the best outcome for DVA, and not for the very people they are supposed to be assisting’. Slater + Gordon also drew parallels to the life insurance industry, where the fees paid to some of the same external medical assessor firms have been alleged to create a conflict of interest, where the assessors ‘are incentivised to make findings which are agreeable to the interests of the insurance company’ (sub. 68, pp. 58–59).
The PC report made a finding that external assessors ‘should only be called upon when strictly necessary and staff should be provided with clear guidance to that effect’.
Clinical onset or worsening of a condition
For some conditions, a claimant’s Defence medical record, or incident reports, will indicate when an incident occurred that led to the condition or when the condition began to worsen. The PC noted that only around 2.4 per cent of claims under the MRCA between 1 July 2004 to 30 June 2017 were linked to an incident report (and an even smaller percentage for conditions claimed in relation to operational service).
For most claims, the onset or worsening of a condition is based on information provided by treating medical practitioners or through a discussion with the claimant. The PC noted:
The retrospective assessment of clinical onset or worsening is allowed because the veteran support system has less restrictive requirements for supporting evidence than civilian workers’ compensation schemes …. This is one of the ‘beneficial’ aspects of the veteran support system …, which is legislated to deal with the long time lag between relevant service and claims.
Linking conditions with service
Two standards of evidence are used to test the claim that a condition is linked to a veteran’s service: the ‘balance of probabilities’ and the ‘reasonable hypothesis’. The reasonable hypothesis standard has a long history dating back to the repatriation legislation introduced in the aftermath of the First World War—it is considered more beneficial to veterans. The PC summarised the two standards:
The balance of probabilities is the standard used in civil law (including civilian workers’ compensation systems) where the weight of evidence must be in favour of the claim being true before the claim can be accepted. In other words, the balance of probabilities test is satisfied if the administrative decision-maker is convinced that the probability that a claim is correct is greater than fifty per cent. The balance of probabilities standard is also known as the ‘reasonable satisfaction’ test, as assessors must be reasonably satisfied of a claim’s merit.
The reasonable hypothesis standard is a more beneficial standard of proof from the point of view of the veteran. This standard evolved out of the much more onerous criminal standard, which is satisfied only if a decision-maker is convinced ‘beyond a reasonable doubt’ that all the elements in a body of evidence are true. In the veteran support system, the reverse of the criminal standard was introduced, where the onus was on DVA to prove beyond a reasonable doubt that the contended link in a claim was not true, although the claimant must at least raise a ‘reasonable hypothesis’ of a link.
The balance of probabilities standard is used to assess claims under the VEA and MRCA in relation to peacetime service, and for claims under the DRCA. ‘Findings of fact’ under the three legislative schemes are also assessed under the balance of probabilities standard. Claims under the VEA and MRCA arising from operational service are assessed under the reasonable hypothesis standard.
Impairment ratings
Once liability has been established, the type and level of benefit needs to be determined. This is usually through an assessment of the claimant’s level of impairment, and the pain and suffering caused by their condition. The different veterans’ compensation schemes offer different levels of compensation and within the schemes there may be different levels of compensation based on the kind of military service the condition is related to (i.e. peacetime or operational). The guides used to assess impairments also differ between the three schemes.
Chapter 14 of the PC’s report offers a useful summary of the differences in impairment assessments between the three schemes.
Interaction with superannuation
Veterans may be eligible for invalidity pensions through military or other superannuation schemes, as well as for compensation through one of the veterans’ schemes administered by DVA. This creates duplication in terms of medical assessments and inconsistencies in terms of the compensation assessments conducted by different agencies.
The PC report noted the Commonwealth Superannuation Corporation (CSC), DVA and Defence had piloted the use of single medical assessments. The CSC now uses medical assessments undertaken by Defence to make invalidity assessments. The PC recommended greater integration of DVA and CSC processes and information sharing.
Claims for Invalidity Service Pension
Invalidity Service Pension is a payment for those with qualifying service (generally, war service or operational service) who have a permanent incapacity to work and meet a means test. The person’s permanent incapacity to work does not need to be related to their service so liability does not necessarily need to be established. The payment is similar to the social security Disability Support Pension (same rate and means test) but eligibility criteria and the assessment process is different.
Claimants who are permanently blind, or in receipt of certain levels of disability compensation payments under the VEA or MRCA can be automatically considered to have a permanent incapacity to work.
The claim form for Invalidity Service Pension includes a section for a claimant’s treating medical practitioner (GP or specialist) to fill out detailing the person’s medical diagnosis and any relevant specialist reports. DVA pays medical practitioners for filling out the form based on a fee schedule. The treating doctor also needs to fill out a work test questionnaire detailing the impact of the person’s impairments on their work capacity.
Feedback
Please contact the author if you would like further information or explanation.