Statement of Principles concerning Achilles tendinopathy (Balance of Probabilities) (No. 87 of 2024)

The central concept is the balance of probabilities standard - the SoP is made on the basis that the medical-scientific evidence makes it "more probable than not" that the condition can be related to relevant service. This is a lower evidential bar than beyond reasonable doubt but still requires a preponderance of evidence. Relevant service is defined in the Dictionary and is limited to three categories: eligible war service (other than operational service) under the VEA, defence service (other than hazardous service and British nuclear test defence service) under the VEA, and peacetime service under the MRCA. This exclusion of operational and hazardous service is significant because those categories attract the reasonable hypothesis standard under VEA section 120, where the SoPs operate differently. Clinical onset and clinical worsening are not defined in the instrument but are standard terms - clinical onset refers to the first manifestation of the condition, while clinical worsening refers to a material deterioration after an existing condition. The SoP includes death from Achilles tendinopathy, which is defined to include death from a terminal event (pneumonia, respiratory failure, cardiac arrest, circulatory failure, or cessation of brain function) contributed to by the condition. The MET (metabolic equivalent) is a unit of cardiorespiratory effort - 1 MET equals resting energy expenditure, 3-4 METs equals walking at 5 km/h or light gardening. The SoP uses MET thresholds of 5 for most activity factors. The concept of being treated with a glucocorticoid drug as specified is highly technical: it uses Table 1 (prednisolone or equivalent) with cumulative dose thresholds (e.g., at least 0.5 grams over six months within three years, or at least 3 grams within five years, or at least 10 grams with no specified duration) and Table 2 which provides dose ratio equivalences for nine glucocorticoids (e.g., 1 mg prednisolone = 5 mg cortisone). BMI is defined as weight in kilograms divided by height in metres squared. The systemic arthritic diseases listed are nine conditions: ankylosing spondylitis, Behcet syndrome, enteropathic spondyloarthropathy, gout, pseudogout/crystal-induced arthropathies, psoriatic arthropathy, reactive arthritis, rheumatoid arthritis, and undifferentiated spondyloarthropathy. The factor of inability to obtain appropriate clinical management for Achilles tendinopathy before clinical worsening is the only factor that applies solely to clinical worsening and requires that the inability itself be related to service (section 10(1)). The SoP also incorporates the concept of other Statements of Principles by reference: where a factor (e.g., having rheumatoid arthritis) refers to a disease covered by a separate SoP, the factors in that other SoP become applicable to the claim.

The instrument directly affects veterans and members of the Forces who claim compensation for Achilles tendinopathy under the VEA or the MRCA, but only those whose service falls within the narrow definition of "relevant service" - that is, non-operational eligible war service, non-hazardous defence service, or peacetime service under MRCA. This excludes the majority of veterans with operational service (e.g., those who served in combat zones), who instead have their claims assessed under the reasonable hypothesis standard where different SoPs may apply or where the SoP may still be used but the standard of proof is more generous to the claimant. "Relevant service" also excludes hazardous service and British nuclear test defence service under the VEA. The instrument therefore primarily affects permanent Defence Force members with peacetime service and veterans who served in non-operational roles (e.g., home service during peacetime, training exercises not designated as operational). The dependants of such persons may also be affected if death from Achilles tendinopathy is claimed. The Repatriation Medical Authority itself is the maker of the instrument, but the decision-makers who must apply it are the Department of Veterans' Affairs (under the VEA) and the Military Rehabilitation and Compensation Commission (under the MRCA). These bodies have no discretion to depart from the factors; if a factor is proven and related to service, the condition must be accepted as service-related (subject to other requirements of the Acts). Conversely, if no factor is proven, the claim must fail. Medical practitioners who treat veterans are indirectly affected because they may be asked to provide evidence on activity levels, medication histories, anthropometric measurements, and diagnoses that match the factor definitions. The instrument also affects lawyers and advocates who assist with claims, as they must now advise clients on the specific evidentiary hurdles - for example, recording running distances, MET values, precise timing of antibiotic courses, and cumulative glucocorticoid doses. Compensation insurers (the Commonwealth) are affected as the SoP defines the scope of liability; tighter or looser factors directly influence the number of accepted claims and the associated payout costs. The instrument also repeals the previous SoP (No. 97 of 2015), so any claims pending under the old instrument must be decided under the new one from 19 November 2024. This could affect claimants who had prepared evidence matching the old criteria, which may differ from the new.

The SoP creates no direct duties on individuals; it is an evidentiary standard imposed on decision-makers. However, indirectly it imposes a burden of proof on claimants: to succeed, a claimant must prove that at least one factor under section 9 existed and that it is related to relevant service. This is a right of the claimant to have the claim assessed according to these criteria, but also a risk that the claim will fail if none of the factors are made out. The right to have a claim assessed under the VEA or MRCA includes the right to have the decision-maker apply the correct SoP. If a decision-maker ignores the SoP or misapplies it, the claimant may seek merits review in the Veterans' Review Board (VRB) and then the Administrative Appeals Tribunal (AAT), or judicial review. The SoP effectively limits the discretion of the decision-maker: they cannot accept a connection based on a factor not listed, nor can they reject a claim where a listed factor is proven and related to service. The duty of the decision-maker is to meticulously check each element of the factor - for example, for factor 3, they must confirm that the increase in frequency, duration or intensity of activity was by at least 100%, to a minimum intensity of 5 METs, for at least 4 hours per day, and within the one week before clinical onset or clinical worsening. This creates a strict compliance regime. In relation to clinical worsening, the instrument creates a limitation: for factors that are applied to clinical worsening, the factor must have caused material contribution to or aggravation of the condition where the condition existed before or during service but did not arise out of service. This means that if a veteran had pre-existing Achilles tendinopathy that was not service-related, a later worsening application may still succeed if a factor (e.g., running 60 km/week) is proven and related to service. The factor of inability to obtain appropriate clinical management is unique: it requires that the person cannot obtain such management, and that inability must be related to service (e.g., because of being posted to a remote location with no medical access). This gives a right to claim worsening even without an identifiable physiological or pharmacological factor. The instrument also cross-references other SoPs: where a factor refers to a disease already covered by a separate SoP (e.g., rheumatoid arthritis), the factors of that separate SoP become relevant. This imposes a duty on the claimant to also satisfy those additional factors if the original factor is not itself caused by service. For example, if a claimant relies on having rheumatoid arthritis (factor 5(g)), they will also need to show that the rheumatoid arthritis is connected to service under its own SoP. This is a significant additional evidentiary burden that claimants and their advisers must anticipate.

This instrument does not itself impose penalties. It is a legislative instrument made under the VEA and is not enforceable in the sense of criminal sanctions. However, it forms part of the legal framework for determining entitlement to compensation. The enforcement mechanism is through the claims process: if a claimant makes a false statement to satisfy a factor, they may be liable for criminal penalties under section 207 of the VEA (false statements to obtain a pension) or under the Criminal Code (offences of obtaining financial advantage by deception). Similarly, if a decision-maker knowingly fails to apply the SoP and awards compensation where no factor exists, that could be an improper application of public money and may lead to recovery proceedings or disciplinary action. The SoP does not contain any maximum penalty or infringement notice provisions; it is purely definitional. However, the effect of non-compliance with the SoP by a decision-maker is that the decision is legally flawed and can be set aside on review. The Veterans' Review Board, the Administrative Appeals Tribunal, and the Federal Court all have powers to quash a decision and remit it for proper determination. For the claimant, the penalty for not satisfying a factor is denial of the claim. There is no intermediate sanction. The SoP also has a retrospective operation in the sense that it applies to claims made after commencement (19 November 2024) but also to claims already in progress? Section 5 says it applies to a claim to which VEA section 120B or MRCA section 339 applies - that is forward-looking. But instruments under s196B(3) may apply to pending claims if the claim is not finally determined. The repeal of the old SoP means the new one governs. Claimants who had prepared evidence for the old SoP may find that their evidence no longer matches the revised factors, effectively penalising them with additional compliance costs. The Repatriation Medical Authority does not enforce the SoP; it merely makes and amends it. Enforcement is diffused through the administrative and judicial review systems. The instrument also has no appeal rights from the SoP itself; it is a legislative instrument that can only be challenged on administrative law grounds (e.g., unreasonableness, ultra vires, failure to take into account relevant matters). Such challenges are rare given the Authority's expert medical basis.

The SoP is made under section 196B(3) of the Veterans' Entitlements Act 1986 and must be read together with the VEA, particularly sections 120A and 120B which set out the standard of proof and the role of Statements of Principles. Section 120B requires that for claims relating to injury or disease after a certain date, the decision-maker must be satisfied, on the balance of probabilities, that the condition is connected with service, and that a determination of the Repatriation Medical Authority under s196B(3) (i.e., this SoP) is binding as to what constitutes a reasonable hypothesis or proof on the balance of probabilities. The SoP also interacts with the Military Rehabilitation and Compensation Act 2004 (MRCA), specifically section 339, which applies the SoP framework to MRCA claims. The MRCA covers members of the ADF with peacetime service and also some with warlike service, but this SoP is limited to peacetime service. For warlike or non-warlike service under MRCA, different standards may apply. The SoP repeals the previous Statement of Principles concerning Achilles tendinopathy and bursitis (No. 97 of 2015). That old instrument covered both bursitis and tendinopathy; the new one only covers tendinopathy (bursitis presumably has its own separate SoP). This reduction in scope may affect claimants with co-morbid bursitis who previously benefited from a single unified factor set. The SoP also interacts with other Statements of Principles through section 11: where a factor refers to an injury or disease (such as rheumatoid arthritis, gout, diabetes mellitus, or obesity) that is covered by its own SoP, the factors from that other SoP are incorporated by reference. This means a claimant asserting diabetes mellitus as a factor for Achilles tendinopathy must also satisfy the diabetes SoP. This creates a cascading system where multiple SoPs must be satisfied sequentially. The SoP does not interact with state workers' compensation schemes or general tort law; it is purely federal veterans' compensation. However, it may interact with the Safety, Rehabilitation and Compensation Act 1988 (SRCA) for Commonwealth employees who are not veterans, but the instrument only mentions VEA and MRCA. The instrument also refers to the standard of proof (balance of probabilities) which is a common law standard defined by case law. The SoP does not override the substantive provisions of the VEA; it merely defines the medical-scientific criteria. If a claim involves operational service under the VEA, the decision-maker applies section 120(1) (reasonable hypothesis) rather than section 120B (balance of probabilities), so this SoP would not be directly binding; the SoP may still be used but the standard is different. The Note to section 8 of the SoP states it is based on sound medical-scientific evidence that it is more probable than not that the condition can be related to relevant service. This reflects the Authority's mandate under s196B(3) to determine SoPs for claims where the standard is balance of probabilities. For operational service, the Authority has separate SoPs under s196B(2) based on the reasonable hypothesis standard.

This instrument (No. 87 of 2024) is new and has not been amended since its commencement on 19 November 2024. It repeals the previous SoP: the Statement of Principles concerning Achilles tendinopathy and bursitis (Balance of Probabilities) (No. 97 of 2015), made under subsection 196B(3) of the VEA and registered as F2015L01337. The 2015 SoP covered both Achilles tendinopathy and Achilles bursitis; the new instrument only covers tendinopathy, suggesting that bursitis has been separated into its own instrument (not shown). The new SoP introduces several factors not present in the 2015 version, including: factor 3 (100% increase in activity within one week), factor 8 (aromatase inhibitors), factor 12 (BMI of 30 or greater), factor 13 (diabetes mellitus), and factor 14 (inability to obtain appropriate clinical management). The previous SoP also had a threshold of 50 km per week for running; the new one raises it to 60 km per week. The previous SoP included "tendinopathy and bursitis" together; the new one drops bursitis. The previous SoP defined "being treated with a glucocorticoid drug as specified" differently - the new one includes three cumulative dose thresholds (0.5 g over 6 months within 3 years; 3 g within 5 years; 10 g unspecified duration) and updated equivalence ratios. The previous SoP also had a factor for "undertaking weight bearing exercise involving repeated activity of the ankle joint" but at a threshold of 4 hours per week; the new one raises it to 6 hours per week and specifies a minimum intensity of 5 METs. The systemic arthritic diseases list now includes pseudogout and crystal-induced arthropathies (factor 5(e)), which may have been absent before. The instrument is made by the Repatriation Medical Authority, which is a statutory body of medical experts. It was determined on 18 October 2024 and commences on 19 November 2024. The legislative instrument is registered on the Federal Register of Legislation. The amendment history only covers the repeal of the 2015 SoP; there are no intermediate amendments. Future amendments may occur as medical-scientific evidence evolves. The Authority is required to review SoPs periodically, but the instrument itself does not specify a review date. This is the first SoP for Achilles tendinopathy under the balance of probabilities standard that is standalone (without bursitis). The Authority may have determined that the conditions are distinct enough to warrant separate SoPs, which imposes additional compliance burdens on claimants with co-morbidities.

The text of this Statement of Principles contains no reference to any litigation - it does not cite any decided cases, appeals, or court rulings. The instrument is a legislative instrument and as such is not itself litigated; rather, it is applied in administrative decisions that may be subject to review. The predecessor SoP (No. 97 of 2015) may have been the subject of decisions in the Veterans' Review Board, the Administrative Appeals Tribunal, or the Federal Court, but this new instrument does not discuss that history. Because the SoP is binding on decision-makers, any challenge to a claim decision typically focuses on whether the factor was properly interpreted or whether the evidence met the factor's requirements. For example, the definition of "being treated with a glucocorticoid drug as specified" with its complex dose-equivalence tables has likely generated disputes over conversion calculations and the meaning of "pharmacologically equivalent". The factor of "inability to obtain appropriate clinical management" may also be contested, especially regarding whether the inability was due to service circumstances. The raising of threshold distances for running from 50 km to 60 km per week in the new instrument may be based on updated evidence; previous litigation may have tested the old threshold. However, without citation in the source, we cannot assert any specific case names or holdings. It is also possible that the Repatriation Medical Authority has been judicially reviewed in the past for failing to consider certain evidence, but the instrument does not mention that. The instrument's basis in "sound medical-scientific evidence" (section 8) may be open to challenge if the evidence is shown to be outdated or biased, but that would be a challenge to the Authority's decision to make the SoP, not the SoP itself. Such challenges are rare and have a high threshold. The note to the definition of terminal event lists common causes of death (pneumonia, respiratory failure, etc.) which are standard and unlikely to be litigated. In summary, the instrument is silent on litigation history, and we can only note that the predecessor SoP likely generated some administrative review but no instrument-specific case law is referenced.

Several features of this SoP are easily overlooked and can trap both claimants and decision-makers. One critical point is the applicable service type: the SoP is limited to "relevant service", which excludes operational service, hazardous service, and British nuclear test defence service under the VEA, and warlike or non-warlike service under the MRCA. A claimant with operational service may think this SoP applies, but it does not; a different standard (reasonable hypothesis) applies, and a different SoP (if any) may be in force. For operational service, the Authority may have issued a SoP under s196B(2) which uses a "reasonable hypothesis" standard; that SoP may have different factors. Factor 3 (increased activity by 100% for at least 4 hours per day at 5 METs within one week before onset) is extremely narrow - a 100% increase in a week is rare outside of sudden military training surges. The word "within the 1 week before clinical onset or clinical worsening" means the increase must occur in the seven days immediately preceding the first symptom or the worsening. This is a very short time window and will be difficult to prove unless the claimant has contemporaneous records. Factor 4 (decreased ankle or forefoot flexibility, forefoot varus) requires that these conditions exist "at the time of clinical onset or clinical worsening". Many people have such anatomical variations, but the factor says "involving the affected lower limb" - it must be on the same side. The SoP does not specify how to measure flexibility, leaving room for dispute. Factor 5 (systemic arthritic diseases) is a list of nine conditions. Note that "pseudogout" is included but "osteoarthritis" is not. Gout is included. The factor requires the disease to be "at the time of clinical onset or clinical worsening", but systemic arthritis often has a fluctuating course. The note to factor 5 includes "psoriatic arthropathy" - note the typo in the source ("psoriatic arthropathy" likely meant arthropathy). The glucocorticoid factor (factor 9) specifies "being treated with a glucocorticoid drug as specified" which uses Table 1 and Table 2. Table 1 has three cumulative dose thresholds: 0.5 grams over 6 months within 3 years, 3 grams within 5 years, and 10 grams (no duration specified). The threshold of 10 grams with no duration limit is particularly vague - does it mean ever in life? The note says "NS" for not specified. This could be interpreted as any time before onset, which potentially captures anyone who has ever had a substantial cumulative dose. Also, Table 2 gives equivalence ratios (e.g., 0.15 for dexamethasone), meaning 0.15 mg of dexamethasone equals 1 mg of prednisolone. Converting to prednisolone equivalents requires careful arithmetic. Factor 10 (glucocorticoid injection into the Achilles tendon, in the region, or in the retrocalcaneal bursa, before rupture) is a specific factor for rupture. Note that it does not require a minimum dose or timing; any injection before rupture qualifies. But the rupture itself must constitute clinical onset or worsening. This factor is binary. Factor 11 (aromatase inhibitor for at least 4 weeks within the year) is specific to medications like anastrozole, exemestane, letrozole. This will mainly affect female veterans (and some male veterans) undergoing breast cancer therapy. Factor 12 (BMI 30 or greater) - note that BMI at the time of onset can change; claimants may have a BMI just under 30 but still be obese. The SoP is strict. Factor 13 (diabetes mellitus) - type 1 and type 2 both count, but the diabetes must be present at onset. Factor 14 (inability to obtain appropriate clinical management) only applies to clinical worsening, not onset. The inability must be related to service. This is a catch-all but is difficult to prove - it requires evidence that management was unavailable due to service circumstances (e.g., remote posting, lack of medical personnel). Section 11 cross-references other SoPs: if you rely on diabetes or obesity as a factor, you may need to also prove that the diabetes or obesity is itself service-related under its own SoP. This cascading requirement can multiply the evidentiary burden. Finally, the instrument uses "balance of probabilities" throughout but note that section 10(2) clarifies that clinical worsening aspects of factors apply only to material contribution to aggravation where the condition existed before/during service but did not arise out of service. This limits the scope: you cannot use clinical worsening factors to link a condition that arose out of service to later worsening. Also, the definition of "terminal event" includes cessation of brain function but does not include sepsis or other common causes; the list is exhaustive.

For a claimant seeking to establish that Achilles tendinopathy is connected to relevant service, compliance requires assembling evidence that matches at least one of the thirteen factors and proving that the factor itself is related to service. The most common factor is likely factor 1: running or jogging an average of at least 60 km per week for the 4 weeks before onset. To comply, the claimant should provide contemporaneous training logs, GPS data, service fitness records, or witness statements confirming running distances. The running must be on the affected side? The factor does not specify, but it likely refers to running involving the affected leg. The four-week averaging means a single heavy week is insufficient; the claimant must show sustained mileage. Factor 2: weight-bearing exercise involving repeated ankle activity for at least 6 hours per week at 5 METs for 4 weeks. The examples include marching, basketball, football, volleyball, track and field with jumping. Service personnel often have mandatory physical training and route marches. Records of unit physical training schedules, fitness test results, and deployment activities can be used. The intensity of 5 METs is roughly equivalent to walking at about 7 km/h or light jogging; the claimant or a physiotherapist could estimate MET values from standard compendiums. Factor 3: 100% increase in activity in the week before onset is the hardest to prove; it requires detailed before-and-after records of daily activity. Compliance would need a diary showing baseline activity and the spike. Factors 4-5: anatomical conditions and systemic arthritis require a medical diagnosis. A doctor's report confirming decreased flexibility, forefoot varus, or one of the listed arthritic conditions at the time of onset is needed. For factor 5, the arthritis must be diagnosed by a rheumatologist; gout requires urate crystal confirmation. Factor 6: fluoroquinolone antibiotics - the claimant must show a prescription for ciprofloxacin, moxifloxacin, norfloxacin, or ofloxacin (or similar) within 30 days before onset. Pharmacy records, service medical records, or Department of Veterans' Affairs prescription history are needed. The factor does not require a minimum dose or duration. Factor 7: glucocorticoid drug as specified - requires calculation of cumulative prednisolone equivalent dose using Table 2. The claimant's treating doctor or a pharmacist must tabulate all glucocorticoid doses (IV, IM, oral) over the relevant time windows. The 0.5g threshold over 6 months is equivalent to about 8.3 mg of prednisolone per day. Many patients with asthma or autoimmune diseases will exceed this. Factor 8: aromatase inhibitors - again, prescription records. Factor 12: BMI 30+ - requires height and weight measurements at the time of onset. Service medical records often record BMI annually. Factor 13: diabetes mellitus - requires a diagnosis of diabetes (fasting glucose, HbA1c, or medication). Factor 14: inability to obtain appropriate clinical management - requires evidence that the claimant could not access physiotherapy, rest, anti-inflammatories, or other standard care because of service circumstances (e.g., deployed on ship with no medical staff, or denied sick leave). The AAT may accept a statement from the claimant supported by unit posting orders. Throughout, the claimant must also link the factor to service: for example, the running was part of mandatory military training, the weight-bearing exercise was on a military exercise, the fluoroquinolone was prescribed by a military doctor, the inability to get treatment was due to being posted to a remote location. The decision-maker must be satisfied that the factor existed and that there is a causal nexus to service. For decision-makers, compliance is straightforward: check each element of the factor in the evidence. The SoP reduces discretion but requires careful arithmetic and medical interpretation. The greatest risk of non-compliance for claimants is failing to contemporaneously document activity levels and medication histories, leaving reliance on memory which may be rejected. Proactive record-keeping - diaries of running distances, training logs, and medical appointment records - is the most effective compliance strategy.