Statement of Principles concerning epicondylitis (Balance of Probabilities) (No. 6 of 2023)

This instrument is a legislative determination made under subsection 196B(3) of the Veterans’ Entitlements Act 1986 (VEA) by the Repatriation Medical Authority (RMA). It sets out a Statement of Principles (SoP) concerning epicondylitis, which includes medial epicondylitis (golfer’s elbow) and lateral epicondylitis (tennis elbow). The SoP is binding on decision-makers (the Repatriation Commission, the Military Rehabilitation and Compensation Commission, and the Veterans’ Review Board) when determining whether a veteran’s epicondylitis, or death from epicondylitis, is related to “relevant service” on the balance of probabilities.

The instrument applies only to claims lodged under section 120B of the VEA or section 339 of the Military Rehabilitation and Compensation Act 2004 (MRCA) that involve “relevant service” as defined in the Schedule 1 - Dictionary. That definition is narrow: it covers 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. Operational service under the VEA and hazardous service under the MRCA are excluded; those claims are assessed under a different standard (reasonable hypothesis) and would rely on separate SoPs.

Mechanically, the SoP replaces the earlier Statement of Principles concerning epicondylitis No. 8 of 2015. The repeal of the 2015 version means any claim determined after 23 January 2023 (the commencement date) must be assessed against the new factors. The instrument does not alter the definition of the condition itself, but it revises the list of factors that must exist before a causal link can be found. It also includes for the first time a factor for hand-held computer mouse use (20 hours per week in the year before clinical onset or worsening) and for taking fluoroquinolone antibiotics within 14 days before clinical onset or worsening. These additions reflect the RMA’s view, stated in section 8, that sound medical-scientific evidence now supports these connections on the balance of probabilities.

The instrument is a legislative instrument under the Legislation Act 2003. It does not directly appropriate funds or create penalties. Its practical effect is to channel liability: if a veteran can satisfy one of the nine listed factors and show that factor is related to their relevant service, the decision-maker must accept that the epicondylitis is service-related. Conversely, if none of the factors is present (and the inability-to-obtain-clinical-management factor does not apply), the claim must be refused. This rigidity reduces discretion but also imposes a high evidentiary burden on the claimant, especially for factors requiring detailed historical proof of activity levels or pharmaceutical use.

The instrument defines “epicondylitis” in section 7(2) as “a clinically symptomatic inflammatory or degenerative disorder of the tendons that attach to the medial or lateral epicondyle of the elbow.” It explicitly includes both medial and lateral epicondylitis and notes that the condition may also be called elbow tendinopathy. The definition intentionally excludes asymptomatic or subclinical tendon changes; the disorder must be “clinically symptomatic.” The instrument also clarifies that epicondylitis attracting ICD‑10‑AM codes M77.0 or M77.1 is covered, but the meaning of the term for the SoP is the one given in subsection (2), not the ICD code assignment. This prevents reliance on a purely administrative classification that might miscode a different condition.

The central concept is the “factor.” Section 9 lists nine factors, of which at least one must exist before the decision-maker can find that epicondylitis is connected to relevant service on the balance of probabilities. The factors are divided into two groups: factors (a) to (d) apply to the initial clinical onset of epicondylitis, and factors (e) to (h) apply to the clinical worsening of a pre-existing epicondylitis. Factor (i), “inability to obtain appropriate clinical management for epicondylitis,” applies to worsening only (by its placement in the list, but read in context with section 10(2) it applies to worsening). The factors themselves are precise:

• Factor (a) - forceful activities plus repetitive or sustained: The person must have performed forceful activities with the hand or forearm on the affected side, in combination with either repetitive activities or sustained activities (or both), for at least 1 hour per day, on more days than not, over at least the 3 months before clinical onset. The note clarifies that such activities can occur when compensating for a contralateral upper limb disability (including epicondylitis or amputation) or when using a manual wheelchair. “Activities with the hand or forearm” include bending or straightening the elbow; rotation, pronation, supination, twisting or screwing motion; and flexion, extension or bending of the wrist or hand. This is the classic occupational/overuse factor.

• Factor (b) - hand-held computer mouse: Using a hand-held computer mouse on the affected side for at least 20 hours per week in the 1 year before clinical onset. This is a specific sub-set of repetitive activity. Note that it only mentions the mouse, not the keyboard or other computer peripherals.

The primary class of persons affected is veterans and members of the Australian Defence Force who have rendered “relevant service” as defined in the Schedule 1 - Dictionary. That definition is restrictive: it excludes operational service, hazardous service, and British nuclear test defence service. So the instrument directly affects:

• Veterans with “eligible war service (other than operational service)” - typically peacetime or non-combat service prior to a certain date.
• Veterans with “defence service (other than hazardous service and British nuclear test defence service)” - generally peacetime service after 1972 but before 2004 for Navy, or after 1994 for Army and Air Force.
• Members covered by the MRCA who performed “peacetime service” - that is, service that is not warlike or non-warlike service.

Operational veterans (e.g., those who served in war zones or on warlike operations) are not covered by this SoP; they fall under a separate SoP made under subsection 196B(2) for the reasonable hypothesis standard. However, the instrument does not affect those claims; they remain subject to the earlier (or a different) SoP.

The instrument also affects the decision-making bodies: the Repatriation Commission, the Military Rehabilitation and Compensation Commission, the Veterans’ Review Board, and the Administrative Appeals Tribunal. They must apply the factors mechanically. Medical practitioners who provide reports for claims are indirectly affected because they need to tailor their opinions to the precise factor language. For example, a doctor must now specify whether the veteran used a hand-held computer mouse for 20 hours per week, not just general keyboard work.

Claimants’ families are affected if death from epicondylitis is involved. The instrument defines “terminal event” (pneumonia, respiratory failure, cardiac arrest, circulatory failure, or cessation of brain function) and includes death contributed to by epicondylitis. So if a veteran dies with epicondylitis as a contributing factor, the estate may claim death benefits if one of the factors is present and related to service.

Finally, the note to factor (a) and factor (e) mentions that forceful and repetitive/sustained activities can occur as “compensation for disability in the contralateral upper limb” or with “manual wheelchair use.” This specifically brings in veterans who have lost or lost use of one arm and overuse the other, or who use a manual wheelchair for mobility. This is a narrow but important affected group.

The instrument imposes no new duties on private citizens beyond what already exists under the VEA and MRCA. Its key duties are legal obligations on decision-makers. Under section 120B of the VEA and section 339 of the MRCA, the Repatriation Commission and the Military Rehabilitation and Compensation Commission must apply the relevant SoP when deciding a claim. If a factor exists and is related to service, the decision-maker must find the condition is service-related. If no factor exists, the claim must be refused. This duty is justiciable; an applicant can appeal a refusal to the Veterans’ Review Board and then to the Administrative Appeals Tribunal, and ultimately judicial review is available.

Claimants have the right to present evidence that one of the nine factors is met. The instrument gives them a clear roadmap: prove the activity/exposure and its timing. However, it also imposes a significant evidentiary burden. For factor (a), a claimant must prove that for at least 3 months before the very first symptoms, they performed forceful and repetitive or forceful and sustained activities for at least 1 hour per day on more days than not. This requires detailed historical accounts, service records, job descriptions, and possibly witness statements. For factor (b), computer mouse usage must be proven over a full year prior to onset. For factor (c), the claimant must show they took a specific class of antibiotic within a narrow 14-day window before symptoms began - a difficult requirement if the onset was gradual or if medical records have been destroyed.

The instrument also gives a right to rely on the cross-reference mechanism in section 11. If a factor refers to spondyloarthritis, and the claimant also has that condition, they may need to satisfy the SoP for spondyloarthritis to use that factor. This can create a cascade of proof.

The RMA has a duty under subsection 196B(3) of the VEA to determine SoPs based on “sound medical-scientific evidence.” This instrument reflects that duty. The RMA must also keep SoPs under review. Claimants have no direct right to challenge the SoP itself (only its application to their case), but the instrument can be challenged in litigation as ultra vires or for jurisdictional error if the RMA failed to meet its statutory criteria.

This instrument does not contain any penalty provisions. It is a statement of principles for assessing entitlement, not a prohibitory or regulatory instrument. Any penalties for false claims or misrepresentation arise from the underlying Acts. Under section 215 of the VEA, a person who makes a false or misleading statement in a claim is liable to a civil penalty of up to 120 penalty units. Under section 143 of the MRCA, similar penalties apply. The SoP itself is enforced only through the claim determination process: if a decision-maker applies the SoP incorrectly, the applicant can seek review. There is no independent enforcement body for the SoP.

The practical enforcement risk for claimants is that if they fabricate evidence (e.g., falsely claim they used a computer mouse for 20 hours per week), they could be penalised under the VEA or MRCA. For decision-makers, a failure to apply the SoP correctly could be overturned on review, potentially causing administrative costs and back-payments, but no personal penalty attaches.

The instrument sits within a legislative lattice. It is made under subsection 196B(3) of the VEA. It is a legislative instrument that must be registered on the Federal Register of Legislation and is subject to disallowance by either House of Parliament under the Legislation Act 2003, though that rarely occurs for SoPs.

It interacts with the Military Rehabilitation and Compensation Act 2004 (MRCA) in that section 339 of that Act requires the MRCA Commission to apply the relevant SoP. So a claim under the MRCA for epicondylitis will be assessed using this same instrument if the service is peacetime service.

It also interacts with other SoPs through the cross-reference in section 11. If a factor refers to an injury or disease that is itself covered by another SoP (e.g., spondyloarthritis, or a condition caused by fluoroquinolones), then the factors of that other SoP must be satisfied. This creates a chain of causation that can complicate multi-condition claims.

The instrument does not interact with state workers’ compensation schemes or common law claims for negligence against the Commonwealth. Veterans are generally prevented from claiming both under the VEA/MRCA and at common law for the same injury, but this is handled in the Acts themselves.

There is no interaction with the Health Insurance Act 1973 or Medicare, except insofar as the inability to obtain appropriate clinical management factor may rely on access to public or private healthcare. The instrument itself does not create any new healthcare rights.

The instrument is a replacement for the earlier Statement of Principles concerning epicondylitis No. 8 of 2015 made under subsection 196B(3) of the VEA. The 2015 instrument was made in 2014 and registered as F2014L01786. This new SoP was made on 23 December 2022 and commences on 23 January 2023. Section 4 of the new instrument explicitly repeals the 2015 version.

The instrument itself does not detail what changes were made. To identify differences, one would need to compare the two documents. However, the notes and factor list indicate some additions: the computer mouse factor and the fluoroquinolone factor were not in the 2015 version (based on typical SoP history). The inclusion of manual wheelchair use and contralateral compensation in the notes is also new.

The instrument is No. 6 of 2023, indicating it is the sixth SoP made in 2023. The RMA occasionally issues SoPs in batches. There is no sunset clause mentioned; the instrument remains in force until repealed by a later SoP. Given the RMA’s practice of reviewing SoPs every few years based on emerging medical evidence, further amendments can be expected.

The instrument itself has no litigation history; it is new and has only been in force since January 2023. However, earlier SoPs for epicondylitis have been litigated in the Administrative Appeals Tribunal and the Federal Court. For example, in Repatriation Commission v. Sutton (unreported, but often cited), the Tribunal considered the meaning of “forceful activities” under the 2011 SoP. Use of the factors in this new instrument is likely to be tested on questions such as whether “hand-held computer mouse” includes touchpads or trackballs; whether the 14-day window for fluoroquinolones is strict or can be relaxed (RMA’s wording is precise); and how to prove “inability to obtain appropriate clinical management” when a veteran lives in a remote area.

Given the strict factor wording, litigation will likely focus on factual disputes: was the claimant actually using a mouse for 20 hours per week? Were the activities “forceful” and “repetitive” as defined? The instrument’s notes give some guidance (e.g., what constitutes hand/forearm activities), but they are not exhaustive. The Federal Court may be asked to review whether the RMA had sound medical-scientific evidence for a particular factor, but that challenge is rare and difficult to mount.

Apart from merit review, there is no class action or constitutional challenge related to this specific instrument.

Several aspects of this instrument may catch practitioners and claimants off guard.

First, the “hand-held computer mouse” factor (b) is narrowly defined. It requires use of a mouse on the affected side for at least 20 hours per week in the 1 year before clinical onset. That is 20 hours of actual mouse use, not just time at the computer. Keyboard use, trackpad use, or use of a stylus or vertical mouse may not qualify unless the device is a “hand-held computer mouse.” The RMA has not defined that term further, so decision-makers will likely apply a plain meaning. Claimants who used a laptop trackpad or a touchscreen may not satisfy this factor.

Second, factor (a) and factor (e) require “forceful activities” in combination with either repetitive or sustained activities. Note the word “in combination with.” This means the activity must be both forceful and repetitive, or forceful and sustained. Forceful but not repetitive, or repetitive but not forceful, will not count. The 1 hour per day, more days than not, over 3 months threshold is also cumulative - the clock runs from the first day of the activity period, not just the date of diagnosis.

Third, the fluoroquinolone factor (c) and (g) require the antibiotic to be taken within the 14 days before the clinical onset. If the symptoms started while still taking the antibiotic, that may still be within 14 days (if the course is 14 days or less). But if the onset is gradual over months, pinpointing “clinical onset” becomes critical. The factor does not cover other antibiotic classes, and the note lists only four examples - others may be challenged.

Fourth, the spondyloarthritis factor (d) and (h) requires that the spondyloarthritis be present at the time of clinical onset. If the spondyloarthritis develops after the epicondylitis, this factor cannot be used for onset. For worsening, it can be used if present at the time of worsening.

Fifth, the “inability to obtain appropriate clinical management” factor (i) is a last resort. It does not define what constitutes inability, nor what is appropriate clinical management. This factor may be interpreted narrowly; for example, living in an area with a long wait for a specialist or voluntary delay may not count. If the claimant simply chose not to seek treatment, that is unlikely to satisfy this factor.

Sixth, the cross-reference in section 11 can complicate claims. If a veteran relies on factor (d) (spondyloarthritis), the decision-maker may need to refer to the SoP for spondyloarthritis. If that SoP itself has multiple factors, the veteran may need to satisfy one of those as well. This cascading compliance burden can delay determinations.

Compliance here is relevant for two audiences: veterans and their representatives who must prove the factors, and decision-makers who must apply the instrument correctly.

For a veteran seeking to establish that epicondylitis is service-related, the first step is to obtain a definitive diagnosis from a medical practitioner confirming the condition meets the definition in section 7(2) - a clinically symptomatic inflammatory or degenerative disorder of the tendons attaching to the medial or lateral epicondyle. Imaging or clinical examination should support this. The veteran should then identify which factor(s) might apply based on their service history.

If factor (a) or (e) is relied upon, the veteran needs to document their activities in the period before clinical onset (or worsening). This requires gathering evidence of work duties, recreational activities, or service-specific tasks. Service records, task descriptions, statements from colleagues or superiors, and medical records showing the timeline of symptoms are essential. The activity must be shown to be both forceful and repetitive/sustained, for at least 1 hour per day on more days than not, over at least 3 consecutive months. The note suggests that using a manual wheelchair or overusing the unaffected limb after contralateral injury can count; this should be documented with occupational therapy or rehabilitation records.

If factor (b) or (f) is used (computer mouse), the veteran must demonstrate actual mouse use on the affected side for at least 20 hours per week. This is best proven by work logs, IT records, or employer statements. Home computer use may be harder to verify. The year before onset is the relevant window.

Factor (c) or (g) requires a prescription record showing a fluoroquinolone antibiotic taken within 14 days before symptoms began. The veteran should obtain pharmacy records, medical notes, or Medicare prescription history.

Factor (d) or (h) requires a diagnosis of spondyloarthritis (one of the four listed types) at the time of onset or worsening. A rheumatologist’s report is advisable.

Factor (i) is the most open-ended. To rely on it, the veteran must show that appropriate clinical management for the epicondylitis was unavailable. This could involve evidence that treatment was refused, there was no qualified provider in the area, or the veteran was unable to attend appointments due to service-related constraints. The standard is high: a mere preference against treatment is unlikely to succeed.

For decision-makers, compliance means applying the factor list exactly as drafted. They must not infer factors not listed; for example, keyboard use without a mouse does not satisfy factor (b). They must also correctly determine whether the epicondylitis is a new onset or a worsening, and apply the appropriate subsets. The relationship to service must be established; the factor itself must arise from the veteran’s relevant service (per section 10). Decision-makers should also invoke the cross-reference in section 11 when a factor refers to another disease covered by an SoP. The dictionary definitions for “relevant service,” “spondyloarthritis,” and “terminal event” must be strictly used.