Donaldson Law has helped many veterans who discharged as long ago as the early 1970s, to obtain invalidity benefits through the relevant military superannuation scheme. This has resulted in them receiving an ongoing pension as well as significant lump sum arrears payments, backdated to the date of their discharge.
Our concern is that there are likely many more veterans who suffered serious physical or psychiatric injury during their military service, who may not be aware that they could potentially access these significant benefits and are missing out on the entitlements they deserve.
What are military superannuation invalidity benefits?
Invalidity benefits are financial benefits provided to veterans who were discharged from service due to a medical condition or injury considered severe enough to prevent them from continuing their service. They are designed as a form of compensation for the veteran’s loss of earning capacity as a result of their injury.
Invalidity benefits typically consist of ongoing payments in the form of a pension. The amount of the benefit will depend upon a variety of factors including the severity of the injury, and the veteran’s earnings at the date of their separation.
It’s worth noting that these benefits are separate from compensation payments through DVA, or through common law claims for damages. Commonwealth Superannuation (ComSuper) is the agency responsible for the administration of military superannuation invalidity benefits.
What if the veteran was not discharged on grounds of invalidity?
The usual process when a veteran is discharged on the grounds of medical invalidity, is that ComSuper must consider (known as classified) whether their invalidity (injury) has interfered with their ability to use their skills and experience in the civilian workforce. If their invalidity has significantly impacted on their civilian work opportunities, then they may be classified as entitled to invalidity benefits which are paid as a regular pension.
In most cases, this classification occurs around the time of separation, so most veterans who were medically discharged have already been through this process.
However, most of the veterans we assist were discharged on grounds other than medical invalidity. They were unaware that they could also be entitled to these benefits, through a multi-step process of firstly asking the ADF to reconsider the circumstances of their discharge. Whilst no-one can “rewind and redo” what has happened in the past, in appropriate cases the ADF is willing to recognise that the veteran could have been eligible for a medical discharge, which in turn allows us to ask ComSuper to classify the veteran for invalidity benefits.
The law requires that invalidity payments are backdated to the date of their discharge, so in the case of men and women who discharged decades ago this has resulted in a lump sum payment of hundreds of thousands of dollars, in addition to the ongoing invalidity pension.
Could you be eligible?
There are multiple different military superannuation schemes in operation, depending upon the timeframe of a veteran’s service, including the Defence Force Retirement Benefits Act 1948, the Defence Force Retirement and Death Benefits Act 1973 and the Military Superannuation and Benefits Act 1991. This makes the process quite complex and difficult to understand. It is not surprising that many veterans have never considered that they might be eligible, especially if they were not discharged on the grounds of invalidity, and their separation may have happened many years in the past.
Every veteran’s circumstances require individual consideration, such as which scheme applies, the minimum service requirements and whether there are any exclusionary factors. However, there are some general guidelines that will help you to know if you should be getting further advice about whether you may be eligible. If:
- you suffered a physical or psychiatric injury during your service which has been diagnosed by a medical expert (eg in a DVA claim, or a common law claim for damages); and
- there is likely to be evidence in your ADF records that you were already suffering that injury at the time of your separation; and
- the injury was serious enough that you could have been medically separated; and
- the injury has prevented you from using their skills and experience in civilian work,
then we may be able to assist you to obtain invalidity benefits, resulting in not only a hefty payment of arrears, but also an ongoing pension into the future.
What is the process of seeking invalidity benefits?
There are three separate steps to the process, and veterans must pass through all steps to achieve invalidity benefits:
- Apply to the ADF for a declaration that the veteran could have discharged on the grounds of medical invalidity (often referred to as a retrospective change of discharge);
- If that succeeds, apply to ComSuper to verify that the declaration by the ADF is sufficient for military superannuation purposes;
- Request ComSuper to classify the veteran and allocate them either Class A, B or C.
Class C classifications do not result in any payments, but Classes A or B result in both arrears payments, and an entitlement to a regular payment by way of ongoing invalidity benefits pension.
Who can help you?
Free advocates can and often do provide valuable support to veterans, however a lawyer specialising in military superannuation can provide expert legal advice and advocacy that may increase the likelihood of a successful application. A lawyer experienced in this area will have a deep understanding of the complex laws and regulations and processes surrounding military superannuation. Lawyers are trained to gather and analyse evidence, and to build strong cases, potentially identifying legal arguments and angles that a free advocate may not be aware of. They will have the time and expertise to provide advice and guidance that a free advocate may not be able to offer.
Donaldson Law is a veteran-owned specialist firm with a proven track record of achieving outstanding results for veterans who never even realised that they could bring such a claim. We operate on a no win-no fee basis, and if the claim is successful, our fees (which are also tax deductible) are paid from the arrears payment that the veteran receives.
This makes seeking advice from us a risk-free opportunity for veterans who think they could have been medically discharged and may be missing the benefits they deserve.
To read the article in The Last Post click here.