Contents Bill Rolfe appointed Repatriation Commissioner 2
Veterans’ Affairs Legislation Amendment (2007 Measures No. 1) Act 2007
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- Travel expenses for treatment
- Consequence of treatment
- Onus of proof
Veterans’ Affairs Legislation Amendment (2007 Measures No. 1) Act 2007The Veterans’ Affairs Legislation Amendment (2007 Measures No. 1) Act 2007 commenced on 22 June 2007. The Act made amendments of the VEA in relation to a number of matters concerning the income and assets tests. It also aligned the compensation recovery provisions relating to income support pensions with those of the Social Security legislation. The Act also provided that a person is not entitled to treatment under the VEA if their income support payment is suspended because they are in gaol (the State or Territory is responsible for health care while the person is in gaol). Travel expenses for treatmentThe Act amended s 112, to extend the time in which a person could claim travel expenses connected with obtaining treatment from 3 months to 12 months. MRCA amendmentsThe Act also made two amendments of the Military Rehabilitation and Compensation Act 2004 (the MRCA). Consequence of treatmentThe first amendment concerned section 29 of the MRCA, which concerns the consequences of treatment. The effect of the amendment is that an injury or disease that is a consequence of the treatment paid for or provided by the Commonwealth of an already accepted service injury or disease need not have been an unintended consequence of the treatment. The requirement for a claimed injury or disease to be the unintended consequence still applies if the injury or disease being treated is not a service injury or disease and it is being treated under Defence Regulations. The Langley/McKenna1 requirement to re-determine whether there is a link between service and the treated disability does not apply as there is no requirement in section 29 to connect the treated injury or disease with the person’s service. It is important to note that the claimed injury or disease must have been caused by the treatment, and not merely have been caused by the disability that was being treated. Statements of Principles do not apply to a connection based on section 29 of the MRCA (see s 23(1) of the MRCA). The new section 29 applies to an injury or disease sustained or contracted before, on, or after 22 June 2007. See Part 2, item 3 of the Veterans’ Affairs Legislation Amendment (2007 Measures No. 1) Act 2007.
Liability under the VEA & MRCA ‘Liability’ in the context of the VEA is about whether the Commonwealth is responsible for paying pension for the veteran’s or member’s death, injury or disease.2 Under the MRCA, claiming for the acceptance of liability for an injury, disease or death, can be a separate but necessary preliminary process from that of claiming for compensation or other benefits.3 In deciding liability for incapacity from injury or disease, the decision-maker must be satisfied that the claimed disability is either an ‘injury’ or a ‘disease’ as defined by the VEA or MRCA. Liability may be accepted only for properly diagnosed injuries or diseases. Vague terms such as ‘sore back’ or ‘injured elbow’ are not sufficient for acceptance of liability, nor are symptoms (for example, pain alone) without a diagnosed injury or disease. Sections 8, 9, and 70 of the VEA, and sections 27 to 30 of the MRCA are the ‘liability provisions’. They set out the kinds of connections that must exist before a hypothesis or contention of connection with service can be raised between the person’s injury, disease or death and the eligible service rendered for the purposes of the relevant Act. The kinds of connections set out in the liability provisions are as follows:
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