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No1. January 2008

MRCA, SoPs and the application of the exclusion provisions

Question: 

Why do the SoPs that apply to MRCA service contain factors for smoking when tobacco use is specifically excluded by section 36 of MRCA?

Answer:

Strictly, the exclusions provisions only apply after a decision maker finds that an injury or disease is a service injury or disease.

The SoPs apply at the stage where the decision maker is considering whether or not an injury, disease or death is a service injury, disease or death.

Only if a decision maker finds that an injury or disease is a service injury or disease, does it become necessary to consider if an exclusion provision prevents acceptance of a claim. That is, the exclusions apply at the end of the process, not at the start of the process when a decision maker is applying the relevant SoPs. Therefore, it is okay for the RMA to include smoking factors in their SoPs, even if these factors are effectively redundant.

Similarly, under the VEA, the exclusion provisions apply after a connection with service has been found to exist [see: Ferriday v Repatriation Commission (1996) 69 FCR 521]. However, instead of excluding liability, the VEA excludes a finding that the injury, disease or death is 'war-caused' or 'defence-caused'.

Example:  steps in a “reasonable hypothesis” disability pension case

Preliminary Step A What is the nature & scope of eligible service?
Preliminary Step B What is the kind of injury, disease or death claimed?
Deledio step 1 Is there a specific hypothesis that is raised by the material? 
Deledio step 2 What are the relevant SoPs? Including any accrued rights to apply an earlier SoP and are there any SoPs that must be applied within the hypothesised chain of causation?
Deledio step 3 Is the hypothesis reasonable? Specifically, is it pointed to by the evidence? Is it more than a mere possibility? Is it consistent with the template set out in the relevant SoPs?
Deledio step 4 Is the reasonable hypothesis disproved beyond reasonable doubt?
Disentitling provisions  Do any of the exclusion provisions prevent acceptance of the claim?

All Practice Notes