This page explains the circumstances under which it is possible for DVA to award lump sum compensation under the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (DRCA) for permanent impairment suffered by current and former members of the Australian Defence Force (ADF) who were injured or suffered disease due to their service prior to 1 July 2004.
From 12 October 2017, all claims that were considered under the provisions of the Safety, Rehabilitation and Compensation Act 1988 (SRCA) (for conditions attributable to pre-1 July 2004 service) are now considered under the DRCA. All existing claims under the SRCA are now treated as claims under the DRCA. Your entitlement to benefits under the DRCA are exactly the same as those that were available under the SRCA. The DRCA replicates the SRCA and retains the provisions that applied to veterans, current and former ADF members.
A permanent impairment compensation payment under DRCA is a tax-free lump sum benefit. Rates payable under the DRCA (and the additional benefits payable under the Defence Act 1903) are reviewed from 1 July each year in line with movements in the Consumer Price Index.
The current rates for permanent impairment can be found in Compensation payment rates for DRCA and the Defence Act.
Permanent impairment is the effect of injury or disease on a part of the body (arms, legs, back etc) or on a bodily system such as the digestive, psychological or reproductive system. Pensions are not paid for such impairments under the DRCA. Compensation is paid in the form of lump sums for the effect of the impairment.
Permanent impairment is assessed in accordance with the ‘Guide to the Assessment of the Degree of Permanent Impairment’ which is approved and maintained by Comcare Australia, the Australian Government workers’ compensation insurer. Almost any impairment can be assessed under that guide. If it can’t, then the DRCA provides that another guide, such as the American Medical Association’s guide, can be used to assess the degree of impairment.
In addition, an amount can be awarded for what is known as ‘non-economic loss’ (NEL) caused by the impairment. NEL is awarded for lifestyle effects such as pain and suffering, loss of enjoyment of life and the loss of previously enjoyed sporting or recreational activities which may not be possible due to the impairment. The amount payable is determined in consultation with the injured member.
No. If the assessed degree of impairment due to specified DRCA injury or disease is at least 80%, the Defence Act 1903 provides for payment of a Severe Injury Adjustment (SIA).
The SIA is paid in addition to the amount payable under the DRCA. It applies to specific injury or disease sustained or suffered on or after 10 June 1997.
A further lump sum is payable for the benefit of each ‘child’ up to the age of 16 years (up to 25 years in the case of a full-time student) who was dependent on the injured member at the time the injury was sustained (or the disease was suffered).
The lump sum permanent impairment payments under DRCA are tax-free. For further information, please contact the Australian Taxation Office.
Normally your entitlement for PI payments will be considered during the needs assessments carried out after DVA accepts liability for your conditions, however you can make a claim for permanent impairment at any time by providing DVA with a request in writing.
Yes. If your accepted condition worsens you will be able to request reassessment of your condition. Further amounts of compensation can be paid where the degree of your impairment has increased by 10% or more.
Although coverage under the DRCA (then called SRCA) came into operation on 1 December 1988, it is still possible to award lump sum compensation for many impairments that may have occurred before that date.
The ‘transitional provisions’ of the DRCA ensure that if compensation was payable in accordance with a previous Australian Government workers’ compensation Act, then the same amount of compensation continues to be payable under the DRCA.
Because compensation for some kinds of injury or medical conditions such as spinal injuries and psychological conditions only became payable after the DRCA was introduced, it is not possible to award lump sum compensation for such injuries/conditions where the impairment occurred before 1 December 1988. Similarly, lump sum compensation for non-economic loss is not payable where the impairment occurred before that date.
Payment of a lump sum amount of compensation under the DRCA for permanent whole person impairment does not affect other compensation entitlements under DRCA. For example, compensation entitlements for incapacity for work, household and attendant care services and medical expenses related to a compensable injury can still be paid after such a lump sum is awarded.
You might also be entitled to a further lump sum payment of compensation under the DRCA if the degree of permanent impairment increases after an earlier lump sum is paid.
It should be noted that there are ‘offsetting’ provisions to prevent your being compensated under the DRCA and also under the Veterans’ Entitlements Act 1986 (VEA) for the same incapacity or service-related death of a member. Any lump sum you may receive under the DRCA might affect any Disability Pension or Income Support Pension you receive under the VEA. For further information about offsetting, please see Disability pension and compensation offsetting.
Yes, but only in limited circumstances. If permanent impairment compensation (non-economic loss) becomes payable to you, you will receive a DVA letter asking for you to advise DVA in writing if you intend to institute an action or proceeding against the Commonwealth for damages for that non-economic loss. The amount payable by way of common law in these circumstances is restricted to $110,000 for any non-economic loss. Once you make an election to take action against the Commonwealth permanent impairment compensation is no longer payable.
When DVA advises you of an entitlement to permanent impairment compensation, you will be provided with an election form enabling you to indicate your choice to institute action for damages. Once you receive compensation for a particular injury, you will lose your right to make a common law claim against the Commonwealth for non-economic loss for that injury. Before paying the amount of permanent impairment compensation determined, DVA will make every attempt to contact you to ensure you are aware of the alternative choice to institute action for damages against the Commonwealth.
For further information in regards to common law action against the Commonwealth and other third parties, please refer to When and how to take legal action for compensation.