COVID-19 Vaccine Claims Scheme: Recent Amendments

On 3 April 2023 the Federal government introduced changes to the existing COVID-19 Vaccine Claims Scheme. A new version of the scheme, Version 1.4, is now in place.

Some of the changes are positive and are welcomed. Others are likely to be detrimental to the interests of some members of the vaccine-injured community.

Most of the changes which have been made to the policy, which sets up the Scheme, are said to apply retrospectively.

What changes to the Scheme have been made?

The Scheme has been altered to:

• include Novavax-related pericarditis and myocarditis into the Scheme (discussed below);
• add in two new eligible medical conditions - Cerebral venous sinus thrombosis without thrombocytopenia and Erythema multiforme – Major -in certain circumstances (discussed below);
• potentially restrict the eligibility of people who have suffered demyelinating conditions through AstraZeneca vaccines.

 Novavax-related pericarditis and myocarditis now eligible

The update to the Scheme now permits a claim to be made by someone who has had an adverse reaction to the Novavax (Biocelect Pty Ltd) vaccine who has developed either:

·        myocarditis; or

·        pericarditis.

 This change extends the list of conditions which are included in the Scheme as a result of the Novavax vaccine from 1 condition to 3. Previously, anaphylactic reaction was the sole condition included.

The other usual scheme eligibility requirements must be met to make a successful claim.

Myocarditis and pericarditis from the AstraZeneca vaccine are still not accepted conditions under the Scheme even though our own experience from enquiries taken by us is that they are likely to be genuine vaccine-related conditions of that vaccine. Naturally, for this reason, we submit that they should also be included under the Scheme.

Which two (2) new eligible medical conditions have been included in the scheme?

Cerebral venous sinus thrombosis without thrombocytopenia and Erythema multiforme - Major are the two new medical conditions which have been included in the scheme.

Those conditions are only eligible if they arise from specific vaccines, as follows:

·        the AstraZeneca vaccine – for Cerebral venous sinus thrombosis without thrombocytopenia; and

 ·        either Moderna or Pfizer vaccines – for Erythema multiforme-Major.

Cerebral venous sinus thrombosis without thrombocytopenia:

Cerebral venous sinus thrombosis is a rare type of stroke. It occurs when blood clots form in the venous sinuses (channels that drain blood) of the brain.  

Common symptoms include headaches, loss of vision, stroke, seizure, or haemorrhages.

The condition is only eligible in the Scheme if it occurs without the person also suffering Thrombocytopenia (a medical condition where the patient experiences a drop in blood platelets). 

Erythema multiforme-Major:

Erythema multiforme is a an acute skin reaction that can be brought on by vaccinations, medicines and infections. 

It typically involves a skin rash initially on the hands or feet before then spreading to the arms, legs and face. This less severe condition is not one which is eligible for the Scheme. It is only the more severe form, Erythema multiforme – Major, which is eligible. This more severe condition tends to also affect the mouth, genitals and eyes. It can be life-threatening.

What restrictions have been made to Demyelinating conditions with the new update to the Scheme?

In earlier versions of the scheme, the term originally used was relatively open: it was ‘demyelinating disorder, including Guillain Barre Syndrome’. Arguably, this technically included transverse myelitis and potentially other conditions, as the Product Information Statement suggested the potential existence of other conditions. 

In their recent update the Scheme operators have referenced Transverse Myelitis as a new condition that has been added, suggesting an extension of the Scheme. You will note that we have not referred to it as such in our introduction above. Rather, we maintain that the previous policy wording was already sufficient to cover the condition within the Scheme.

The change may, in fact, amount to a new restriction for some in the vaccine-injured community. The previous definition meant that anyone who had suffered a relevant demyelinating condition because of the vaccine could potentially qualify. The scheme policy has now been changed to exclude the previous more-expansive definition that was relevant to demyelinating disorders so as to now replace it with only two specific medical conditions: Guillain Barre Syndrome and Transverse Myelitis. 

It appears this change to demyelinating conditions has been made so as to restrict the operation of the scheme to only those conditions that are specifically referenced by name in the current version of the AstraZeneca Australian Product Information Statement. This version was updated very recently, on 6 February, 2023, only weeks before the AstraZeneca vaccine was removed from use in Australia, on 20 March, 2023.

In their Scheme Update (and in the revised policy document itself) the Scheme operators address the idea that they may have already received claims for demyelinating disorders other than Guillain Barre Syndrome and Transverse Myelitis, and if so, agree to continue to process those claims under the previous version of the Policy. It would seem unusual for Scheme operators not to be acutely aware of whether they have received such claims and the extent of them. Rather, one would think it a more realistic scenario that it was the receipt of such claims that has brought about their ‘clarification’ of the Scheme. In other words, with such a lack of clarity in the Scheme Update, one is left wondering whether this change is a deliberate attempt to restrict the Scheme in view of claims currently lodged and being processed.

We contend that it should be a matter of medical opinion whether a particular demyelinating disorder was vaccine-related or not, and that the original description - ie ‘demyelinating disorders including Guillain Barre Syndrome’ – should have remained, particularly given that the Product Information Statement suggests that a broader range of injuries have been identified as potential outcomes of vaccine with the product. A person suffering a relapse of multiple sclerosis following vaccination is a potential example of a person who may previously have been covered prior to the change.

What happens if someone has already submitted a claim for a demyelinating condition?

The Scheme Operators have advised that they will process the scheme claim in the way it applied at the time you made your application.

If you have not lodged your application before the changes were made you will be bound by the new changes. That is, you will not be eligible unless you meet the new scheme changes.

When do the changes to the scheme take effect?

The changes to the scheme take effect immediately. Essentially, all the changes to the scheme have retrospective effect. That is, they apply irrespective of when you make your application.

The only exception is if you have already made an application, in which event the Scheme says it will consider matters based on the date of the policy as it existed at the time of lodgement. Please refer to the scheme policy for further details.

Practical Reality of the Update to the Scheme:

In our view, the updates to the scheme give marginally with the one hand and potentially take with the other. There is no solid foundation or reasoning offered for the restriction to the demyelinating conditions. 

The addition of the new conditions might appear attractive at first glance but do not appear to go far enough. ‘Erythema Multiforme – Major’ is an incredibly rare medical condition.  The fact that some people may suffer such an ailment, is, of course, terrible so it is a welcome addition to the Scheme. However, for many people, this will likely be seen as a token attempt to create the appearance that there are meaningful additions to the scheme.  The practical reality is that this is not the case.

Experience reveals that there are many other medical conditions which ought to be added to the Scheme. Postural Orthostatic Tachycardia Syndrome (POTS) is an example of a potentially debilitating and diagnosable condition that we commonly see that remains outside of the Scheme.

Failure to diagnose prior to Scheme End Date:

We also receive many calls from people with accounts (which appear to be corroborative with one another) about the onset of various ongoing symptoms following their vaccination, but frustratingly for them, without any formal diagnosis. Examples include chest pain (sometimes with death), paralysis, debilitating fatigue, numbness and tingling in their extremities, vision issues, and intense headaches to name a few.

The Scheme fails to recognise the problems that these people have which is that, except for injuries relating to vaccine administration, recovery of damages under the Scheme can only occur after a medical professional has made a diagnosis of a ‘condition’. 

In their Guidance document for medical professionals Scheme operators say that the requirement for an established diagnosis is to ensure that claims are assessed equitably and so that patients have received or are receiving treatment by the time the claim is lodged. This all sounds very noble but, with an end date approaching, the problem with this approach is obvious. In that regard, the Scheme continues to fail many people in the vaccine-injured community who will be unable to obtain that diagnosis until the medical profession is able to ultimately determine the cause of their issues and suggest appropriate treatment. By the time that occurs for most people the Scheme end date will have come and gone.

If you are still without diagnosis, it is imperative that you continue to work with medical professionals to obtain a diagnosis as quickly as possible and ask friends and family to lobby the TGA, Services Australia and federal parliamentary representatives on your behalf if that diagnosis means that you are not covered by the Scheme.

Prior Scheme Changes (including Hospital Requirement Changes)

This is the 4th update to the Scheme, so we do strongly recommend that anyone who obtained advice early on review the Scheme themselves and/or update their advice by phoning us. 

In Version 3 of the Scheme, the hospitalisation waiver provisions (which allow a decision-maker to grant a waiver where a claimant was not admitted to hospital) were changed. Our view is that the changes may allow some claimants to make a claim when they otherwise would not have been eligible.

It’s worth noting however that these waiver provisions do not apply to injuries which have resulted from the way that the vaccine was administered. So, quite surprisingly perhaps (given the significant impact it can have on loss of income), no claim can be made for a shoulder injury related to vaccine administration (SIRVA injury) where the claimant was not hospitalised.

It is also worth noting that the hospitalisation requirement does not have to be met where the patient has, sadly, passed away ie there is no requirement that there have been hospitalisation in these circumstances. This would seem to be the common-sense approach.

The ‘waiver provision’ changes in policy v1.3 are considered a significant change to the Scheme. If the only reason you did not previously qualify for the Scheme was because you were not admitted to a hospital, you may now be eligible. We recommend you seek advice if you find yourself in those circumstances.

IMPORTANT NOTE:

You should also note that the Scheme end date is currently 17 April 2024 so any claim must be lodged by then. However, we recommend that you lodge any claim as soon as possible rather than wait as any Review/Appeal you may wish to make, because of dissatisfaction with your original result, must also be lodged prior to this end date.

Also, delays increase the risk of a Scheme update that removes the right to claim in relation to a particular injury, as appears to have occurred in this latest version.