Chapter 4 Health Care, Compensation and Payment Schemes
4.1
This Chapter considers the health schemes instituted in response to the
BOI and SHOAMP and the various schemes to provide compensation or cash
payments.
Health care schemes
4.2
Two health care schemes were instituted as a result of the BOI. The
first of these was the Interim Health Care Scheme (IHCS) which was subsequently
replaced by the SHOAMP Health Care Scheme (SHCS).
Interim health care scheme
4.3
The earliest health care scheme that was developed in response to the
concerns of the health of workers in the DSRS programs at Amberley was the
IHCS. Its implementation was in response to the many F-111 maintenance workers
who had presented with a wide range of conditions. It would have been
inappropriate to wait until the results of the BOI recommended health studies
were released. The aim of the IHCS was to:
…provide “sympathetic advice and treatment” for personnel who
were posted to the RAAF Base Amberley and whose health conditions were viewed
as being “reasonably related” to DSRS activities.[1]
IHCS eligibility
4.4
At the outset a joint advisory committee comprising doctors from Defence
and DVA, which included expertise in the areas of occupational health and
environmental health in the Air Force was established:
The Doctors’ Advisory Committee (DAC) was tasked with
identifying a list of conditions for access to treatment under the IHCS. The
DAC was frequently consulted in relation to the appropriateness of treatment
for some conditions. It was the view of the DAC that a generous approach should
be taken towards inclusion of conditions given the unknown nature of causation
at that stage.[2]
4.5
The list of conditions recognised under the IHCS included:
n Skin rashes and
associated systemic conditions
n Neurological
conditions
n Mental disorder
n Personality change
n Neoplasms
n Haematological
conditions
n Liver disease
n Gastrointestinal
problems
n Fatigue
n Coronary heart
disease, its precursors & sequelae
n Chronic infections
n Chronic respiratory
conditions.[3]
4.6
Eligibility for the IHCS was split into two groups. DVA advised that:
Group 1 participants include serving members, ex-serving
members and civilians who were engaged in F-111 aircraft maintenance activities
at RAAF Base Amberley, Queensland. They include personnel who worked on the
four formal DSRS programs
as well as those involved in general F-111 aircraft maintenance work, such
as Pick and Patch…[emphasis added].
…[Group 2 participants] include other individuals possibly
affected, for example, personnel not directly engaged in F-111 aircraft
maintenance activities, but who had been employed at RAAF Base Amberley, or are
the direct family members of Group 1 participants. [4]
4.7
DVA advised that entry to the IHCS was subject to a number of
conditions. These were:
n The level of
participation in the DSRS programs which determined eligibility for either
Group 1 or Group 2 status;
n Group 1 participants
(currently serving/ex-ADF and civilians who were engaged in the DSRS programs)
must have lodged a claim for compensation with either DVA, Comcare or WorkCover
Queensland before they could access treatment through the IHCS; and
n Treatment was
available to Group 1 participants for those conditions that were identified by
the DAC as being reasonably associated with involvement in the DSRS programs.[5]
4.8
It should be noted that the decision to classify a member as either
Group 1 or Group 2 was a decision that rested with the RAAF.[6]
4.9
In relation to the IHCS, DVA advised the Committee:
Bear in mind that it was a very wide and broad application of
the interim healthcare scheme. At the time we asked people to ensure that they
had a compensation claim lodged before they could get access to the Interim Health
Care Scheme. We encouraged as many people as possible to lodge those claims so
that they could get access. All of those people that had access to the Interim
Health Care Scheme continue to have access to the Health Care Scheme, as it is
now defined. There were some original decisions that were changed by
government. The original decision was that they would have access to the health
care scheme until all of their avenues for appeal for compensation had been
exhausted. That was subsequently changed by the former minister to allow those
people to continue to have access to the Health Care Scheme irrespective of
whether they were subsequently found to be eligible for compensation.[7]
Claims assessment processes for Interim Health Care Scheme
4.10
In September 2001 the IHCS was introduced. DVA describes the process:
While policy responses were being developed, all Air Force
workers who believed that they may have been affected were encouraged to access
the Commonwealth’s compensation schemes, the Veterans’ Entitlements Act 1986
(VEA) and Safety, Rehabilitation and Compensation 1988 (SRCA).
Civilian workers had access to the common law. While the SHOAMP was
investigating the nature of the health impact of DSRS work, F-111 aircraft
maintenance personnel were encouraged to register for the IHCS and submit a
claim for compensation. All those who needed health treatment through
involvement with DSRS work were able to access the required treatment, even
while they waited for the outcome of their compensation claim. This was a
unique arrangement particularly created in response to the specific
circumstances of this group of people. Care was taken to ensure information and
assistance was given to all those who approached DVA.[8]
4.11
DVA told the inquiry:
Entry into the IHCS was therefore subject to a number of
conditions. These included:
n The level of
participation in the DSRS programs which determined eligibility for either
Group 1 or Group 2 status;
n Group 1 participants
(currently serving/ex-ADF and civilians who were engaged in the DSRS programs)
must have lodged a claim for compensation with either DVA, Comcare or WorkCover
Queensland before they could access treatment through the IHCS; and
n Treatment was
available to Group 1 participants for those conditions that were identified
by the DAC as being reasonably associated with involvement in the DSRS
programs.[9]
4.12
In 2001 and while the SHOAMP study was proceeding, DVA moved to implement the findings of the BOI:
Following the Air Force’s BOI findings and during the course
of the Health Study, all claims for compensation were extensively medically
investigated to establish the diagnosis and any causal connection to F-111
activities. Where liability could be accepted under the existing legislation,
action was taken to process the claim and provide the benefits which flowed from
the decision, including medical treatment.[10]
4.13
This meant that claimants might receive their compensation under either
the VEA or the SRCA, where supporting medical evidence or reference to Statement
of Principles (SoPs) was sufficient under the Acts, or continue to receive
benefits under IHCS pending the outcome of SHOAMP.[11]
DVAs submission also noted:
Throughout the claim determination process, a case management
approach was taken with each individual claim for compensation. In determining
the outcome of each claim, reference was made not only to the individual’s
involvement with DSRS activities, but in the broader context of their overall
work history. This meant that even if the claimant believed that the cause of
their condition was their DSRS work, Departmental staff looked for any possible
cause from other eligible Defence Service when assessing their claim.[12]
4.14
In evidence to the Committee DVA said that the IHCS was ‘never a
comprehensive response’ (in the sense of being a solution to the issue replacing
the reliance on existing compensation vehicles), but only one:
intended to provide non-liability services to assist the
affected groups, as broadly defined as possible, while awaiting the results of
the study. Entry to the scheme required a compensation claim to be lodged.
Decisions were taken not to reject any claim for compensation under the
Veterans’ Entitlements Act or the Safety, Rehabilitation and Compensation Act
pending the government response to the SHOAMP.[13]
4.15
In August 2005 the Government announced a number of responses to the
SHOAMP including the continuation of non-liability health treatment through
SHCS and the ex-gratia scheme.
SHOAMP Health Care Scheme (SHCS)
4.16
In response to the SHOAMP findings, the Government announced that the
IHCS would cease on 19 August 2005. It also announced that all participants of
the IHCS would be transferred to the new scheme, the SHCS.
SHCS eligibility
4.17
As with the IHCS, the SHCS treatment was categorised into two groups.
The following categories of individuals were eligible for the SHCS, provided
that they had registered prior to 20 September 2005 and had lodged a claim for
compensation under the SRCA or VEA [emphasis added].
Group 1 status:
n Personnel involved in
the F-111 Deseal/Reseal training conducted in Sacramento USA;
n Personnel, including
supervisors, involved in the 1st and 2nd Deseal/Reseal Programs 1977-82 and
1991-93; the Spray Seal Program 1996-99 and the Wings Deseal/Reseal Program
1985-92;
n Personnel involved in
the regular burning or disposal of Deseal/Reseal products including
firefighters, boiler attendants, plant attendants and Department of Construction workers;
n Personnel who
dismantled and/or disposed of the canvas from the Air Transportable Deseal/Reseal Hangar (the ‘Rag
Hangar’);
n Personnel whose
primary place of duty was within the Deseal/Reseal hangars;
n Fuel farm workers and
personnel involved in the transport, delivery and handling of Deseal/Reseal
products including SR51/51A. These workers and personnel must have regularly
performed duties of supply and disposal of Deseal/Reseal products and must have
had regular contact with contaminated fuel from the defuel process either at
RAAF Base Amberley or No.7 Stores Depot;
n Personnel immersed in
the settling pond at RAAF Base Amberley; and
n Work Experience
students at Hawker de Havilland who worked inside the tanks.
Group 2 status:
n The immediate family
members of Group 1 participants; and
n Service personnel and
civilian employees employed on the Base during the F- 111 Deseal/Reseal programs who are not
covered by the Group 1 definition.[14]
4.18
Also eligible were those who were already in the superseded IHCS.
4.19
DVA advised that at the announcement of SHOAMP, several changes from the
IHCS were made:
n all new registrations
had to be submitted by 20 September 2005;
n new compensation
claims had to be lodged by 20 September 2005; and
n based on the SHOAMP
Report, several conditions were removed from the list of treated conditions as
they were found not to be associated with involvement in the F-111 aircraft
maintenance programs. These conditions include heart conditions, chronic
respiratory conditions and chronic infections. However, former IHCS
participants who had previously received treatment for heart conditions,
respiratory conditions or chronic infections continued to receive treatment for
these conditions under the SHCS. No new participants of the SHCS could receive
treatment for these conditions; and
n access to the SHCS
would cease for an individual once liability for a condition has been accepted
by the relevant statutory compensation authority or once all merit-based
avenues of appeal had been exhausted (ie the Administrative Appeals Tribunal
but not the Federal Court).[15]
4.20
On 14 February 2007, the Government amended this final point. The new
arrangements meant that treatment would continue even after all merit based
avenues of appeal had been exhausted. However, under these arrangements, health
care would continue to be provided on the basis that the treatment did not
constitute any admission of liability on behalf of the Government.
4.21
In addition, the DAC refined the list of conditions that would be
treated under SHCS. These are summarised in the following table:
Table 2: Conditions
treated under SHCS
|
Category
|
Condition
|
|
Skin rashes and associated
systemic conditions
|
Dysplastic naevus
Eczema/dermatitis
|
|
Neurological conditions
|
Multiple sclerosis
Parkinson’s disease
Peripheral neuropathy
Spinal muscular atrophy
Erectile dysfunction
Cauda equine syndrome
Neurogenic bladder
Non-alcoholic toxic encephalopathy
Acquired colour vision deficiency
|
|
Mental disorders and personality changes
|
Depression
Sleep disorders with neurological basis
Bi-polar affective disorder
Vertigo
Memory loss
Anxiety
Panic disorders
Impaired cognition
Alcohol and drug dependence
|
|
Malignant neoplasms and myeloproliferative disorders
|
All
|
|
Liver diseases
|
Liver disease (excluding diabetes)
Pancreatic disease
|
|
Gastrointestinal problems
|
Irritable bowel disorder
Ulcerative colitis/Crohn’s disease
Diverticulitis
Bowel polyps
|
|
Immunological disorders
|
Mixed connective tissue disease
Systemic lupus erythematosus
Sarcoidosis
|
Source Department
of Veterans’ Affairs Submission No 89, Attachment E
4.22
Given the significance throughout this Inquiry of the circumstances of
those involved in ‘pick and patch’ work, it is important to note that those who
were engaged in ‘pick and patch’ activities in 1, 6 and 482 Squadron had access
to health coverage by the Commonwealth through the IHCS. The transition
to the SHCS allowed for those who were being treated for certain conditions (as
outlined above) under the IHCS to be transferred to the new scheme. The
treatment for those in the former IHCS continues to this day under the SHCS provided
that a compensation claim for related conditions was submitted by 20 September
2005. The effect of this is that some workers in the squadrons who
undertook ‘pick and patch’ work have had access to costs for treatment of a
range of conditions provided by the Commonwealth. However, that is dependent on
them successfully registering in the IHCS/SHCS and submitting a
compensation claim for a related condition prior to the cut-off date of 20
September 2005.
4.23
Other squadron workers with identical work and health profiles who
failed to register for the IHCS and lodge a claim for compensation prior to 20
September 2005 are denied benefits from the IHCS or SHCS.
4.24
The reasons for cut off dates for these schemes appear to be
administrative rather for reasons of equity or public policy.
4.25
This also highlights the difference in eligibility between the IHCS and
SHCS. As noted in par 4.6, the IHCS included ‘personnel who worked on the
four formal DSRS programs as well as those involved in general F-111 aircraft
maintenance work, such as Pick and Patch’…[emphasis added]. Except for
those who may qualify because of their prior acceptance in the IHCS, the SHCS
excluded ‘pick and patch’ workers. The reasons for
this omission are not clear to the Committee and difficult to understand
given the otherwise wide scope of duties included, extending to fire
fighters, boiler attendants and construction workers.
Benefits available
4.26
In addition to treatment of the conditions outlined in the table above, DVA described the benefits available to Group 1 participants under the SHCS:
Group 1 participants who registered and submitted
compensation claims before 20 September 2005 are eligible for:
n medical treatment
(including medical consultations, pharmaceuticals, appliances) for conditions
for which they have submitted a compensation claim;
n unlimited general
counselling sessions through the Veterans and Veterans Families Counselling
Service (VVCS) for issues and conditions associated with the DSRS programs;
n three genetic
counselling sessions through VVCS to discuss the probability of developing or
transmitting a disorder to offspring and the options open to them in order to
prevent, avoid or ameliorate it;
n eligibility to attend
VVCS-coordinated programs, including the Lifestyle Management Course and Heart
Health;
n eligibility to
participate in the BHP (a cancer screening and disease prevention program
administered by DVA); and
n approved travel to
medical consultations and VVCS counselling sessions.
Group 1 participants who registered but who had not submitted
compensation claims before 20 September 2005 are eligible for:
n up to five general
counselling sessions through VVCS;
n three genetic
counselling sessions through VVCS;
n eligibility to attend
VVCS-coordinated programs, including the Lifestyle Management Course and Heart Health; and
n eligibility to
participate in the BHP (a cancer screening and disease prevention program
administered by DVA).[16]
4.27
DVA also described the benefits available to Group 2 participants under
the SHCS:
Group 2 participants who have registered before 20 September 2005 can receive:
n up to five general
counselling sessions through VVCS; and
n three genetic
counselling sessions through VVCS.[17]
Better Health Program
4.28
DVA advised the Committee that:
As part of its response to the findings of the SHOAMP Report,
the Government announced the establishment of a Cancer and Health Screening and
Disease Prevention Program for F-111 aircraft maintenance workers, which is now
known as the Better Health Program (BHP). This program aims to monitor and
screen F-111 aircraft maintenance workers for conditions possibly linked to
their work in an effort to improve their health outcomes in the longer term.
The BHP was set up with the advice of an Expert Advisory Panel
which included professionals in relevant fields. A cost effective GP-based
model was developed which enables participants to access all screening services
through their GP who can also recommend appropriate treatment if a positive
screening outcome occurs.
The BHP comprises:
n Cancer Screening –
provides early detection for colorectal cancer and melanoma; and
n Health Information
and Disease Prevention – promotes a healthy lifestyle by providing information
on health conditions including erectile dysfunction, depression and anxiety.
The BHP does not cover the costs for any treatment that may
be recommended as a result of BHP’s processes. If a participant receives a
positive result or diagnosis, they are advised to submit a compensation claim
through the usual channels.[18]
4.29
The Committee understands that the BHP was limited to those who were
accepted into the ex-gratia payment scheme, in either Tier 1, 2 or 3.
Health Care Compensation
4.30
This section deals with relevant compensation claims under the Veteran’s
Entitlements Act 1986 and the Safety, Rehabilitation and
Compensation Act 1988, which covered almost all of the affected workers
with the exception of contractors of Hawker De Havilland whose claims were
dealt with under WorkCover Queensland (discussed below).
Veterans’ Entitlements Act 1986
4.31
DVA defines entitlements to compensation benefits under the provisions
of the Veterans’ Entitlements Act 1986 in the following terms:
The VEA provides compensation and rehabilitation to a
veteran, member of the Forces, member of a Peacekeeping Force or Australian
mariner for injuries or diseases caused or aggravated by war service or certain
defence service on behalf of Australia occurring on or before 30 June 2004. It also provides compensation to eligible dependants if their death is
related to service occurring on or before 30 June 2004.[19]
4.32
For the purposes of the present inquiry it is important to note that all
claims for compensation submitted under the Veterans’ Entitlement Act
are examined and determined by a delegate of the Repatriation Commission. In
determining whether or not a veteran or serving member’s injury is caused by
service, the delegate of the Repatriation Commission must have regard to the
Statements of Principles (SoPs).[20]
4.33
SoPs are legislative instruments issued by the Repatriation Medical
Authority (RMA) and are binding on the Repatriation Commission and other
decision-making bodies in determining VEA compensation claims. Crucially, they
set out the minimum factors that must exist in order to establish a causal
connection between particular diseases, injuries or death and service.
4.34
The Repatriation Medical Authority’s role is to determine what
constitutes ‘sound medical-scientific evidence ‘of a relationship between
eligible service and the development of a particular condition. Two SoPs apply
to each condition. One applies to those who have operational service and
provides for determination of claims based on a reasonable hypothesis. The
other applies to those who have eligible service (such as DSRS activities), and
provides for determination of claims based on the balance of probabilities.[21]
Section 180A of the VEA
4.35
Section 180A of the VEA states:
(1) If:
(a) the Repatriation Medical Authority has determined, or has
declared that it does not propose to make or amend, a Statement of Principles
in respect of a particular kind of injury, disease or death (see section 196B); and
(b) the Commission is of the
opinion that, because the Statement of Principles is in force, or because of
the decision by the
Authority not to make or amend the Statement of Principles:
(i) claims for pensions in respect of
incapacity from injury or disease of that kind
made by veterans, members of the Forces,
or members of a Peacekeeping Force, of
a particular class; or
(ii) Claims for pensions made by dependants of those veterans or members in respect of
the death of such a veteran or; cannot
succeed; and
(c) the Commission is also of
the opinion that, in all the circumstances of the case, those veterans, members or their dependants should
receive a pension;
the Commission may, in its
discretion, make a determination in respect of that kind of injury, disease or death under
subsection (2) or (3), or determinations under both subsections (as the case
requires).
4.36
DVA advised the Committee:
The use of section 180A of the VEA provides the Repatriation
Commission (the Commission) with the discretion to issue overriding
determinations that have the same effect as the Statements of Principles (SoP)
regime. This provision allows the Commission to grant entitlements to certain
classes of veterans when it considers that such entitlements should exist.
However, the Second Reading Speech made it clear that the Commission’s powers
are intended to be used only in exceptional circumstances and not as a means to
either usurp the Repatriation Medical Authority’s (RMA’s) function or as a
further stage of appeal of the RMA’s decision.
This power has only been used on one occasion to make
determinations in respect of herbicide exposure in Vietnam….
In order to make a Section 180A determination, the Commission
must specify both ‘the factors that must as a minimum exist’ and ‘which of
those factors must be related to service’. A ‘factor’ needs to define the
circumstances, fact or influence that produced a particular injury, disease or
death. That is, it needs to look at actual causation rather than the
circumstantial link between employment and health outcomes. To list generic
terms such as Deseal/reseal service is not sufficient. A factor needs to define
the element or component of that service in a quantifiable way…
4.37
DVA cautioned against the use of subsection 180A as a blanket determination
in this case advising that it:
would also provide a small group with peacetime only service
a much more generous standard of proof than others in similar situations. It
would effectively provide this group with easier access to VEA benefits
(including war widow’s pension) than veterans who have operational service.
While veterans with operational service are subject to the more generous
“reasonable hypothesis” standard of proof, they are still subject to the SoP
regime which requires that a factor in a SoP be met.[22]
4.38
Furthermore, DVA advised the Committee that:
the diseases that need to be specified in a 180A
determination still need evidence. So you need to go through the same sort of
process of establishing that there is medical scientific evidence that the
disease should be listed. So the first starting point would be that the same
diseases as 7.2. The second issue with 180A is that it is not merely a matter
of incidence but of causation as well. So that is a further difficulty in using
180A as it is cast today. There is another problem with 180A as it is cast
today, and that is that in order for the commission to even move to the step of
considering evidence and how it might be listed, the RMA needs to declare that
it will not make or amend a SOP. So it actually needs to say, ‘We don’t intend
to act.’ Now, to the commission’s mind, the RMA has not made such a
declaration. It does use the SHOAMP results. It does take them into account in
the pool of materials it considers. So it cannot be said that there is
information in front of the commission that the RMA does not have and is not
applying.[23]
Safety, Rehabilitation and Compensation Act 1988
4.39
DSRS personnel participants are also entitled to claim compensation
under the Safety, Rehabilitation and Compensation Act 1988 (SRCA). The
DVA submission sets out the Act’s coverage in the following terms:
The SRCA is the Commonwealth’s workers' compensation
legislation that applies to all employees of the Commonwealth. This includes
members and former members of the Australian Defence Force (ADF), Reserves,
Cadets and Cadet Instructors and certain other persons who hold honorary rank
in the ADF as well as members of certain philanthropic organisations that
provide services to the ADF. [24]
4.40
In relation to DSRS applicants for compensation, under either the Veterans
Entitlement Act 1986 or the Safety, Rehabilitation and Compensation Acts
1986, when DVA determines a claim by a member or former member of the ADF,
the claims assessor is obliged to consider all possible links to that
claimant’s general service work history. The entitlement to compensation may
currently be considered either:
n Under the specific
DSRS provisions under subsection (ss) 7 (2) of the SRCA; and
n Based on their
general work history under the SRCA and/or VEA.[25]
4.41
In terms of coverage for those who worked in the formal DSRS programs, DVA advised:
With the exception of the pure contractors, all of the
defence force members have coverage under the Safety, Rehabilitation and
Compensation Act but not all of them have coverage under the Veterans’
Entitlements Act.[26]
Access to compensation under s7(2) of the SRCA
4.42
In addition, as part of the response to SHOAMP in 2005, it was decided
to extend the provision in the SRCA which allows for a more beneficial standard
of proof. Under subsection 7 (2) of the SRCA (and ss 31 of the C(CGE)Act 1971,
the SRCA antecedent legislation), a claim must succeed unless the Commonwealth
can prove that there is no probable connection between a particular type of
employment and the subsequent development of a particular medical condition. In
other words, the reverse onus of proof applies.[27]
4.43
Access to these provisions was made available to all of those who were
accepted into the ex-gratia scheme. Details of that scheme are included later
in this chapter.
4.44
Despite the reversal of the burden of proof to establish a causal
connection, it remains the case that in order to access the beneficial
provisions of the above legislation, ‘a claimant has to satisfy the Tiers One,
Two or Three eligibility criteria of an F-111 DSRS participant and obtain a
definitive diagnosis of a SHOAMP disease’.[28] Not all those diseases
covered by the IHCS continued to be covered under its successor the SHCS. In an
answer to a question on notice from the Chair, DVA provided a list of the
diseases meeting the requirements of s7(2) of the SRCA.
The following diseases are accepted as meeting the
requirements of subsection 7(2) of the SRCA and ss31 of the Commonwealth
Government Employees (C(CGE)) Act 1971 for all ADF personnel
involved in the DSRS programs at RAAF Base Amberley with a Tier 1, 2 or 3
employment classification:
n Skin Rashes and
associated systemic conditions (Dysplastic naevus, Eczema/dermatitis);
n Neurological
conditions (Multiple sclerosis, Parkinson’s disease, Peripheral neuropathy,
Spinal muscular atrophy, Erectile dysfunction, Cauda equine syndrome,
Neurogenic bladder, Non-alcoholic toxic encephalopathy, Acquired colour vision
deficiency);
n Mental disorder and
personality changes (Depression, Sleep disorders with neurological basis,
Bi-polar affective disorder, Vertigo, Memory loss, Anxiety, Panic disorders
(including Agoraphobia with panic disorder), Impaired cognition;
n All malignant
neoplasms and myeloproliferative disorders
n Liver disease (Liver
disease and pancreatic disease, excluding diabetes);
n Gastrointestinal
problems (Irritable bowl disorder, Ulcerative colitis/Crohn’s disease,
Diverticulitis, Bowel polyps); and
n Immunological
disorders - Mixed connective tissue disease, SLE (systemic lupus
erythematosus), Sarcoidosis.[29]
4.45
The Committee notes that the only difference between this list and that
provided earlier for the SHCS is that the s7(2) list does not provide for
treatment of the ‘alcohol and drug dependence’ condition under the ‘Mental
disorders and personality changes’ category.
4.46
Asked by the Committee about the process of determining the above
conditions, DVA replied:
The Doctor’s Advisory Committee’s (DAC) primary role was to
determine which conditions would be included in the SRCA sub-section 7(2) list
of conditions. The DAC included doctors from Department of Defence and DVA who prepared the sub-section 7(2) list based on results of SHOAMP and the conditions they
believed showed a significant increase in presentations in the F-111 DSRS
cohort when compared to other personnel engaged in duties at RAAF Bases
Amberley and Richmond.[30]
4.47
Further details of the process for determining inclusions under s7(2)
were provided by DVA:
Following the release of the SHOAMP, the Doctors Advisory
Committee reconvened to examine the outcomes of the study and how they compared
to those conditions covered by the IHCS. The Study did not support coverage for
some conditions previously covered by the IHCS such as heart conditions,
chronic respiratory conditions and chronic infections. Within the constraints
of the SHOAMP, the Doctors Advisory Committee took the most generous view of
whether there was a possible link to DSRS activities, whilst ensuring that all
decisions were based on reasonable medical evidence.[31]
4.48
In evidence to the Committee, DVA was at pains to point out the
evidential principles on which all assessment of claims was based:
The Department of Veterans’ Affairs has always used objective
and scientifically supported evidence as a basis for decisions in relation to
entitlements. Deseal-reseal entitlements are no different...eligibility for the
SHOAMP Health Care Scheme was based on scientific results of that study, taking
into consideration the expert advice of a doctors advisory committee. As is
standard practice, compensation decisions relating to deseal-reseal
participants were based, firstly, on diagnoses from relevant medical
professions. Decisions under the Veterans’ Entitlements Act 1986 were then
finalised by comparing medical diagnoses with the requirements of the relevant
statements of principles. Statements of principles are produced by the
independent Repatriation Medical Authority and are based on sound scientific
evidence. Decisions under the Safety, Rehabilitation and Compensation Act were
also guided by the RMA statements of principles but only where use of the
statement of principles would result in a favourable outcome.[32]
Comparative benefits under the VEA and SRCA
4.49
In addition to the different access requirements for compensation under
the VEA and the SRCA discussed above, there are different benefit outcomes for
claimants. Benefit lists were provided by DVA.
4.50
Under the VEA:
Compensation is paid only as a fortnightly pension. VEA
benefits are paid for life and, depending on the level of disability pension,
may include access to the Gold Card for health care treatment. Offsetting
provisions apply to VEA disability pensions where the same condition is
accepted under both the VEA and the SRCA. Other benefits payable under the
VEA, include:
n War Widow’s and
orphan’s pension;
n Health Treatment
Cards for specific conditions or full treatment for all conditions;
n Commonwealth Seniors
Health Card;
n Fringe benefits;
n Aids and appliances;
n Counselling services;
n Educational benefits
to children;
n Rent assistance;
n Income support
payments to eligible veterans’ and their dependants; and various allowances such as Pharmaceutical allowance,
Telephone allowance, Utilities allowance and Remote area allowance for income
support recipients.[33]
4.51
The following compensation benefits are payable under the SRCA:
Once a connection to defence service has been established,
compensation and other benefits may be payable under the SRCA, which include:
n weekly compensation
payments for a compensable injury resulting in incapacity for work;
n lump sum payments of
compensation for permanent impairment (PI) and noneconomic loss suffered as a
result of the compensable injury;
n compensation for the
cost of any medical treatment, including surgical, pharmaceutical, etc, which
is reasonably required as a result of the compensable injury;
n compensation for
dependants of an employee whose death is a result of a compensable injury;
n payment for the costs
incurred for the provision of normal household services which the employee is
no longer able to undertake due to the compensable injury;
n payment for the cost
of attendant care services to assist with personal hygiene,
n dressing, taking
medications etc, if these services are reasonably required as a result of the
compensable injury;
n financial assistance
with essential home, workplace and motor vehicle
n modifications
required as the result of a compensable injury; and
n medical, vocational
and psychological rehabilitation which aims, where possible, to return the
employee to suitable work as soon as practicable. Where this is not possible it
aims to maximise the extent of his or her physical, social and mental health
recovery.[34]
4.52
As both lists attest, compensation under both Acts is comprehensive. The
problem for DSRS and squadron claimants was gaining access to them. In response
to a question from the Chair, DVA advised that most DSRS claimants would have
qualified for benefits under the SRCA but not necessarily for the VEA (which
included the Gold Card):
A claimant can claim the same condition under both acts. As
you can see, they will not follow the same path. If they are successful under
both acts then we use the provisions of compensation offsetting to adjust for
the fact that they have been previously compensated under the former act…
They will satisfy the SRCA rate. With the exception of the
pure contractors, all of the defence force members have coverage under the
Safety, Rehabilitation and Compensation Act but not all of them have coverage
under the Veterans’ Entitlements Act. That is why that act has some attraction.
[35]
Claims assessment processes under the VEA and SRCA
4.53
DVA outlined the compensation claims process in general terms in
evidence to the Committee:
Generally there are four elements that must be established
before a claim can proceed. Firstly, you have to establish that the person is a
veteran or a serving member; secondly, that they had some particular service
that is eligible under the act; thirdly, that they have some particular injury
or disease that they believe relates to that particular service; and, finally,
that it is confirmed in a diagnosis as to the extent of limitation. Those who
are not successful in establishing a claim would not have been successful in
establishing all four of those elements.[36]
4.54
DVA advised that claims assessors ‘make decisions on the basis of the
information and facts that can be supported by the legislation and the
procedures’.[37] Both the VEA and the
SRCA claims determination processes require diagnosis of a particular condition.
The International Classification of Diseases (ICD) is used to identify and
determine conditions.
4.55
In evidence to the Committee on 21 July 2008, DVA provided insights into
the particular difficulties of determining DSRS claims. One area of difficulty was
establishing causal links. In commenting on the health studies, DVA said:
The only issue around the studies is that you are very
unlikely to find a health study of any kind which goes to the question of
causation. The nature of most of these health studies is that they are
essentially about self-reported conditions and give a correlation but do not
necessarily prove anything about the causation. That is the difference between
exposure and causation.[38]
4.56
The other area of difficulty was in relation to the diagnosis of a
specific disease (using the ICD). In the case of particular DSRS claims:
Often the claimants claimed symptoms with no specific
condition. The GP might be supporting that and saying that they have these
symptoms. Therefore, we need a specialist to try and figure out what the
disease or condition is. Underpinning
both compensation systems, you have to have a disease. We do not treat symptoms
as a rule.[39]
4.57
In answer to a question from the Committee relating to whether there
were any people whose claims had been rejected because DVA could not certify
the claimed condition under the Acts, DVA responded:
Yes, there are individuals who have had conditions rejected
because the claimed condition was found not to be present based on the medical
evidence. [40]
4.58
As at 21 July 2008, DVA listed rejected claims in the above category
under both the SRCA and VEA, as a total of 1,235 individual conditions claims
(or 17 per cent) by a total of 629 individual claimants. DVAs submission comments on these figures:
These numbers have been influenced by the fact that a large
number of claims were lodged in relation to undiagnosed or self reported
symptoms which could not be identified as compensable conditions.[41]
The Ex gratia payment scheme
Background
4.59
The SHOAMP study found that those who worked in the four formal DSRS
programs ‘reported nearly twice the number of poor health symptoms compared to
the comparison groups, who were comprised of those who did not work in the
F-111 fuel tanks’. While not attributing causality of these heightened
illnesses to the F-111 program, the study showed that those in the formal DSRS
programs suffered a much poorer quality of life, due to health outcomes,
compared to those in the comparison groups. This prompted a two-pronged
response by the Government; firstly, ex-gratia payments to recognise the unique
working conditions endured by those in the DSRS programs and, secondly, a more
defined package of health care building on the work done in the IHCS. Access to
compensatory avenues was also relaxed.
4.60
On 19 August 2005, the then Ministers for Defence and Veterans’ Affairs
issued a media release outlining lump sum payments for DSRS workers following
the SHOAMP findings. The payments, which would be administered by DVA, would be
either $40 000 or $10 000. The press release stated:
The package is in response to the Study of Health Outcomes in
Aircraft Maintenance Personnel (SHOAMP) and recognises that those people who
participated in F-111 Deseal/Reseal work experienced a unique working
environment.[42]
4.61
The press release also stated that in addition to the ex-gratia payment
scheme, access to the existing compensation schemes, health care support and
ongoing screening and prevention programs were available.
Purpose of the ex-gratia scheme
4.62
The ex-gratia payment scheme was in recognition of the poor working
conditions endured by those working in the F-111 fuel tanks or in support roles
of the formal DSRS program. It was not a means of injury or medical
compensation.
4.63
The Defence submission states:
The underlying premise of the ex gratia payment was first and
foremost an acknowledgement by the Commonwealth of the very poor working
conditions experienced by RAAF personnel who were required to work inside F-111
fuel tanks for extended periods while being exposed to potentially toxic
chemicals. The ex gratia payment was not a substitute for compensation ...[43]
Eligibility and Payments
4.64
The August 2005 statement issued by the Government defining eligibility
said:
DEFINITION OF A DESEAL/RESEAL PARTICIPANT FOR THE PURPOSES
OF THE LUMP SUM PAYMENT SCHEME
Tier 1 - $40,0000
A person who meets any one of the following criteria can test
their eligibility to receive a lump sum payment of $40,000:
1. A
person who spent at least 30 cumulative working days on the Fuselage
Deseal/Reseal or Respray Programs during the period 1977 – 1982, 1991 – 1993
and 1996 – 2000, whose duties involved working inside F-111 fuel tanks; or
2. A
person who spent at least 30 cumulative working days on the Wing tank program
during the period 1985 – 1992; or
3. A
person who spent at least 60 cumulative working days carrying out Sealant
Rework ( Pick and Patch) during the period 1973 – 2000 while attached to
an F-111 deseal/reseal section; or
4. Boiler
and Plant Attendants whose usual place of duty was the Base Incinerator as an
Incinerator operator and who spent at least 30 cumulative working days
undertaking these duties during the period 1976 – 1986; or
5. A
person who can demonstrate that they would have met one of the above criteria
except for the fact that they:
·
had an immediate physical reaction; and
·
required medical treatment or intervention; and
·
were given a work restriction or medical fitness advice (PM 101)
stating that they should not return to that working environment.
Tier 2 – $10,000
A person who meets any one of the following criteria can test
their eligibility to receive a lump sum payment of $10,000:
1. A
person who spent between 10 and 29 cumulative working days on the Fuselage
Deseal/Reseal or Respray Programs during the period 1977 – 1982, 1991 – 1993
and 1996 – 2000, whose duties involved working inside F-111 fuel tanks; or
2. A
person who spent between 10 and 29 cumulative working days on the Wing tank
program during the period 1985 – 1992; or
3. A
person who spent between 20 and 59 cumulative working days carrying out Sealant
Rework (Pick and Patch) during the period 1973 – 2000 while attached to
an F-111 deseal/reseal section; or
4. Boiler
and Plant Attendants whose usual place of duty was the Base Incinerator as an
Incinerator operator and who spent between 10 and 29 cumulative working days
undertaking these duties during the period 1976 – 1986; or
5. Fire
Fighters employed as Instructors whose usual place of duty was the Fire
Training School fire pits and who spent at least 60 cumulative working days
actively involved in the burning of by-products from the F-111 DSRS process
during the period 1976 – 1990; or
6. Personnel
who were not involved in tank entry and whose usual place of duty was
the Rag Hangar for 60 cumulative working days during the period Dec 1977 - Nov
1983; or
7. Personnel
who were not involved in tank entry and whose usual place of duty was
Hangar 255, 260, 277 or 278 for a continuous period of 60 cumulative working
days during the period 1977 – 1982, 1991 – 1993 and 1996 – 2000; or
8. A
person who can demonstrate that they would have met one of the above criteria
except for the fact that they:
·
had an immediate physical reaction; and
·
required medical treatment or intervention; and
·
were given a work restriction or medical fitness advice (PM 101)
stating that they should not return to that working environment.
Note: Only one ex-gratia payment may be made
regardless of how many times a person may be eligible. Where a claimant is
assessed as eligible for both payments, the higher amount will be paid.
Definition of a deseal reseal participant FOR THE
PURPOSES OF A DETERMINATION UNDER s7(2) of the SRCA
Tier 3
The following personnel should be considered for inclusion in
any determination under s7(2) of the SRCA:
1. Personnel
who worked on the Fuselage Deseal/Reseal or Respray Programs during the period
1977 – 1982, 1991 – 1993 and 1996 – 2000, whose duties involved working inside
F-111 fuel tanks; or
2. Personnel
who worked on the Wing tank program during the period 1985 – 1992; or
3. personnel
carried out Sealant Rework (Pick and Patch) during the period 1973 –
2000 while attached to an F-111 deseal/reseal section; or
4. Boiler
and Plant Attendants whose usual place of duty was the Base Incinerator as an
Incinerator operator during the period 1976 – 1986; or
5. Fire
Fighters whose usual place of duty was a Unit at RAAF Base Amberley and who
were actively involved in the burning of by-products from the F-111 DSRS
process during the period 1976 – 1994; or
6. Personnel
who were not involved in tank entry and whose usual place of duty was
the Rag Hangar during the period Dec 1977 – Nov 1983; or
7. Personnel
who were not involved in tank entry and whose usual place of duty was
Hangar 255, 260, 277 or 278 during the period 1977 – 1982, 1991 – 1993 and 1996
– 2000; or
8. Motor Transport Drivers involved in the first
deseal/reseal program who came into contact with aviation fuel contaminated
with deseal/reseal by-products during the period 1977-1982;or
9. Maintenance personnel on the air
transportable (‘rag’) hangar who were involved in removing/replacing canvas or
dismantling the Hangar during relevant periods in 1978, 1980 and 1984; or
10. Personnel employed in Engine Test Cell No 1 during the period 1976 – 1986; or
11. Personnel tasked with entering the Warrill Creek Settling Pond for
the purpose of maintaining the physical barrier during the period 1977– 2000.
EXCLUSIONS
This definition should not include others indirectly involved
in the DS/RS procedures such as:
1. K
Group and 7SD personnel; and
2. Dept
of Housing and Construction Staff; and
3. ADG
(or other personnel) who entered Warrill Creek for any other reason; and
4. Security
Personnel; and
5. Work
Experience students.[44]
4.65
In terms of the lump sum, Defence advised that:
these payments are in addition to a person’s entitlement to
claim compensation and the receipt of such a payment is not related to having
an injury or disease. The lump sum is non-taxable and has no impact on existing
Government benefits or potential common law claims.
4.66
Section 51-5 of the Income Tax Assessment Act 1997 makes these
payments tax exempt. It states:
If you are:
a recipient of an ex‑gratia
payment from the
Commonwealth known as the F‑111 Deseal/Reseal Ex‑gratia Lump Sum Payment
... the following amounts are exempt from income tax:
the ex‑gratia payment.[45]
4.67
The Committee was advised well after the final public hearing that the
list supplied to the Inquiry and displayed on the Department’s website contained
an error. Whilst the error only related to a small number of people, it is very
alarming that this could occur in a matter which had been so keenly scrutinised
for many years.[46]
4.68
Eligible claimants were required to be formally attached to one of the
four formal DSRS programs. Workers who were sent informally to one of the
formal DSRS sections, sometimes for short periods, did not qualify for a
payment. Similarly, those who worked performing ‘pick and patch’ activities in
1, 6 and 482 Squadrons or any other associated area not directly attached to
one of the formal sections were ineligible for the scheme. Chapter 2 contains a
discussion on the differences between the tasks of those involved in the formal
programs compared to those involved in the squadrons.
4.69
When asked why 482 Squadron was excluded from the Tier definitions DVA responded:
If you look at the history of this issue, the board of
inquiry focused on the formal programs, the SHOAMP, by and large, focused on
the formal programs and the resulting responses primarily focused on the four
formal programs—with the exception of the healthcare schemes, which are much
more liberal in terms of access. The whole process has been one that has
focused on the four formal programs.[47]
4.70
This response overlooks the fact that the IHCS included those in the
squadrons engaged in ‘pick and patch’ work, though DVA did say that:
Essentially, the
schemes—the ex-gratia payment, the better health scheme and the compensation
system—operate independently in accordance with the requirements set down by
each[48].
4.71
The omission from the ex-gratia scheme of those who were attached to
Squadrons 1, 6 and 482 whose duties involved fuel tank entry has generated a
great deal of anger amongst those excluded and is at the core of many
submissions. As Air Vice-Marshal Brown stated:
In reality there was no real difference between the pick and
patch work done at Squadrons 1, 6 and 482 and what was done in the
reseal-deseal section.[49]
4.72
Given that the ‘pick and patch’ work in the squadrons was the same as
‘pick and patch’ work carried out in the DSRS programs, the claims of unfair
treatment are understandable.
4.73
The Committee notes that personnel who were never required to enter
F-111 fuel tanks, such as boiler and plant attendants and fire fighters were
included in the Tier 2 criterion for the ‘Definition of a DSRS Participant’,
whilst those involved in the informal ‘pick and patch’ activities in the
squadrons were excluded.
4.74
Presumably work in the extremely confined F-111 tanks typified the
‘unique working environment’ for which the ex-gratia payment was created. No
explanations for this apparent anomaly excluding squadron ‘pick and patch’ workers
was provided to the Committee except for the DVA comments expressed above.
4.75
There are a substantial number of squadron personnel, whose duties would
have involved significant periods of tank entry. These individuals experienced
working conditions for various periods of time on a par with and arguably worse
than others included in Tier 2 and Tier 3.
Link between SHCS and Ex-Gratia / s7(2) SRCA
4.76
As outlined in this report, initially a
participant had to register for the IHCS. However, to begin receiving
treatment, the participant was required to lodge a claim for compensation. This
meant that the applicant had to satisfy the requirements for compensation under
the SRCA or VEA. The treatment received is in accordance with the IHCS list
identified by the Doctors Advisory Committee (DAC). That is necessary as these
conditions are accepted as ‘reasonably linked’ to DSRS.
4.77
The following table provides a useful summary of the
varying benefits applying to different schemes and different categories within
schemes: