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3.4.5 Applying streamlining procedures

The MRCC have approved a policy whereby (in appropriate cases) delegates will be able to streamline the investigation and decision making processes. Once the diagnosis has been established, the MRCC has approved a suite of medical conditions that can generally be accepted as service related without further investigation of the material raised in the claim.  Specifically, where the claim and contents of service records contain all the necessary information set out in the paragraph below, entitled “Investigation of claims by the MRCC”, no further investigation is required to verify that information prior to the acceptance of liability.

These conditions are:

3.4.5.1 Statements of Principles

All of the identified conditions comprise diagnoses that are the subject of Statements of Principles (SoPs).  The SoPs are legal instruments determined by the Repatriation Medical Authority (RMA) and are based on sound medical-scientific evidence. The SOPs detail the factors that must be met in order for a claim to be related to service. Each condition has two SoPs reflecting the different standards of proof: Reasonable Hypothesis (RH) which applies to warlike or non-warlike service; and Balance of Probabilities (BoP) which applies to peacetime service. Under s332 of the Military Rehabilitation and Compensation Act 2004 (MRCA) all claims for the above MRCC-identified conditions must be determined using the relevant SoP.

3.4.5.2 Policy Rationale

The MRCC policy reflects the view that, on the balance of probabilities, all military personnel will meet the requirements of at least one of the SoP factors for each of the identified conditions.  Service – regardless of type – needs only to have made a material contribution to the SoP factor requirements.  The expectation, therefore, is that claims for the MRCC-identified conditions will succeed, unless there are exceptional circumstances. 

3.4.5.3 Acting under a Policy

Delegates of the MRCC who undertake investigations and make decisions on claims must exercise their own judgment and discretion, otherwise they risk making an error of law either in acting under direction or applying a policy without regard to the individual merits of a case.  This does not mean that delegates are able to ignore a relevant policy put in place by the MRCC or the guidance of a more senior delegate.  However, any such advice must be consistent with both the requirements of the MRCA and the relevant legislative instruments used or made under this Act (e.g. the SoPs).  Delegates must therefore ensure that such advice is acknowledged in their reasons for decisions. 

In the case of Tang v Minister for Immigration and Ethnic Affairs (1986) 67 ALR 177, Justice Pincus held that where a statutory discretion exists, and where the legislation itself does not specify the way in which the discretion is to be exercised, a decision maker is entitled to formulate a policy in relation to the exercise of that decision.  In this particular case, His Honour drew a distinction between a policy 'guiding' the making of a decision on the one hand and 'controlling' it on the other.  The former was said to be lawful and the distinction is a question of degree and not of kind.

Accordingly, the policy outlined here is to be used by delegates as 'guiding' the investigation and decision making processes that are to be applied in handling claims for the above-mentioned conditions under the MRCA.

Any concerns about individual cases where the delegate believes the policy would result in an inappropriate decision (eg, where this policy would have resulted in the approval of the claim or application but there is other available evidence to indicate that this should not be the outcome) should be brought to the attention of their supervisor who will then report the matter to the Director of the Liability and Service Eligibility (L&SE) Policy section for consideration.

3.4.5.4 Legal Responsibilities

While the MRCC supports the view that people with ADF service will almost invariably meet one of the SoP factors for the identified conditions, this does not negate a delegate's legal responsibilities.  Under s336, the MRCC is 'not entitled to make certain presumptions' in relation to a claim for liability, and for this reason, it is essential that there is sufficient evidence available to make a legal determination.  By the same token, however, it must be remembered that under s337 there is 'no onus of proof' on the person in relation to any matter that may be relevant to the determination of the claim.

3.4.5.5 Investigation of Claims by the MRCC

This policy clarifies that additional evidence beyond what is contained in the claim form and service records will not ordinarily be required for these conditions.  This is because the claim should contain the correct medical diagnosis as well as a contention in relation to the claimed condition.

Even if this contention is simply ‘service conditions’, it is sufficient to conclude with reference to the service documents that the claimed condition was caused by exposure to gunfire, exposure to sunlight, level of physical exertion, etc. Therefore, there should be no need to investigate such claims further, for example, by seeking to obtain further medical opinion or assessment questionnaire. 

Therefore, further investigation of the connection with service is not required, provided that:

(i)         there is evidence of relevant defence service;

(ii)         the claim and/or service records contain information that points to at least one of the factors listed in the relevant SoP;  and

(iii)        the claim and/or service records contain medical opinions and/or medical reports from suitably qualified persons (eg, medical practitioners, audiologists, registered optometrists) that include a diagnosis that would enable a decision maker to be satisfied on the balance of probabilities that the client has a particular disease/condition.  In such circumstances, no further opinion from a qualified person would be required.

One of the implications of the above is that investigative tools previously used (including the UV calculator, UV questionnaire or solar damage assessment form) will no longer be required.  This is expected to improve consistency in decision making and time taken to process claims for any of the specified conditions.

3.4.5.6 Exceptional Circumstances

Some cases, however, will demonstrate peculiarities that place them apart from the usual claim.  These claims require careful consideration, including discussion with a team leader, before a decision can be made to reject.  Each of the factors contained within the relevant SoP must be considered, and in a small number of cases, further investigation may be a necessary (but unusual) course of action.  See “reject case example” below for further information.

3.4.5.7 Determination of Claims by Delegates of the Commission

Section 333 of the MRCA provides that after the investigation of a claim under section 324 is completed, the claim is to be referred to a delegate of the Commission who shall 'consider all matters that, in the Commission’s opinion, are relevant to the claim'.  In this respect, the MRCC has determined that delegates are able to make decisions approving claims for liability under the MRCA for each of the above mentioned conditions providing the above information is contained within the claim and service records.

Delegates investigating and determining claims for liability that involve one of the conditions mentioned in this handbook are now able to rely on the material lodged with the initial claim and/or contained in the service records.  If that material is sufficient to satisfy the legal requirements of the MRCA (including the relevant SoP) then a decision to accept the claim can be made without the need for further circumstantial investigation.  However, any decision to reject a claim for one of these conditions must first be discussed with a Team Leader who will report the case to the Director of the L&SE Policy section if deemed necessary.

3.4.5.8 Determining Claims

When determining claims it is important that an appropriate explanation and reasons for all decisions be provided to the client.  Decisions to accept a claim should articulate the condition diagnosed, the contention, the evidence considered, standard of proof applicable and SOP factor met.  Decisions to disallow a claim should contain similar information, but also acknowledge that all SoP factors have been considered and articulate the finding that service has not made a material contribution to the condition. 

3.4.5.9 Accept case example

A decision to accept a claim for SNHL could advise in the following (generic) manner, suitably edited to reflect the circumstances of the case:

'The Statement of Principles which is relevant to your condition claimed states that exposure to an impulsive noise is a factor in the development of sensorineural hearing loss.  I am satisfied such exposure (eg, in the form of gunfire) is commonplace during military service and I have accepted the claim on that basis.' 

3.4.5.10 Reject case example

Again suitably edited, a decision to reject a claim for NMMN of the skin – following discussion with a Team Leader – could be explained in the following way:

“The Statement of Principles for your claimed condition contains two separate factors that relate to solar exposure, however neither applies in your particular case.  The reason for this is because the basal cell carcinoma (BCC) which you have claimed compensation for is located on the underside of your foot which would not usually be exposed to the Sun (and therefore cannot be related to your Defence service).  I have also considered the other factors contained in the Statement of Principles, none of which apply in this case.  Therefore, having considered the relevant evidence I am reasonably satisfied that your BCC is not causally related to your Defence service.”   

Delegates investigating and determining claims for liability that involve one of the conditions mentioned in this policy are now able to rely on the material lodged with the initial claim and/or contained in the service records.  If that material is sufficient to satisfy the legal requirements of the MRCA (including the relevant SoP) then a decision to accept the claim can be made without the need for further circumstantial investigation. However, any decision to reject a claim for one of these conditions must first be discussed with a Team Leader who will report the case to the L&SE Policy section if deemed necessary.