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MILITARY REHABILITATION AND COMPENSATION ACT 2004 - SECT 338

Reasonableness of hypothesis to be assessed by reference to Statement of Principles

             (1)  This section applies to a claim under section 319 for acceptance of liability under subsection 23(1) or 24(1) for an injury, disease or death that relates to warlike or non-warlike service.

Note:          Subsections 335(1) and (2) are relevant to these claims.

             (2)  If the Repatriation Medical Authority has given notice under section 196G of the Veterans' Entitlements Act 1986 that it intends to carry out an investigation in respect of a particular kind of injury, disease or death:

                     (a)  the Commission is not to determine a claim for acceptance of liability for a person's injury, disease or death of that kind; and

                     (b)  the Commission, the Board or the Tribunal is not to make a decision on the reconsideration or review of:

                              (i)  a determination by the Commission on such a claim; or

                             (ii)  such a determination as previously affirmed or varied; or

                            (iii)  a decision made on a previous review in substitution for a determination referred to in subparagraph (i) or (ii);

unless or until the Authority:

                     (c)  has determined a Statement of Principles under subsection 196B(2) of that Act in respect of that kind of injury, disease or death; or

                     (d)  has declared that it does not propose to determine such a Statement of Principles.

             (3)  For the purposes of subsection 335(2), a hypothesis connecting an injury sustained, or a disease contracted, by a person, or the death of a person, with the circumstances of any particular service rendered by the person while a member, is reasonable only if there is in force:

                     (a)  a Statement of Principles determined under subsection 196B(2) or (11) of the Veterans' Entitlements Act 1986 ; or

                     (b)  a determination of the Commission under subsection 340(2) of this Act;

that upholds the hypothesis.

Note:          See subsection (4) about the application of this subsection.

             (4)  Subsection (3) does not apply in relation to a claim for acceptance of liability for a person's injury, disease or death if the Repatriation Medical Authority has neither determined a Statement of Principles under subsection 196B(2) of the Veterans' Entitlements Act 1986 , nor declared that it does not propose to make such a Statement of Principles, in respect of:

                     (a)  the kind of injury sustained by the person; or

                     (b)  the kind of disease contracted by the person; or

                     (c)  the kind of death met by the person;

as the case may be.



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