Statement of Principles concerning epicondylitis (Reasonable Hypothesis) (No. 5 of 2023)

The central concept is the reasonable hypothesis standard, which is a lower threshold than the balance of probabilities. Under section 120A of the VEA and section 338 of the MRCA, for claims involving an injury or disease for which an SoP exists, a claim can only succeed if the material before the decision-maker raises a reasonable hypothesis connecting the injury or disease to service. The SoP defines what constitutes a reasonable hypothesis by specifying factors that must exist. This instrument is the product of the RMA's view that there is sound medical-scientific evidence that epicondylitis can be related to relevant service under those Acts.

Epicondylitis is defined in section 7(2) as a clinically symptomatic inflammatory or degenerative disorder of the tendons attaching to the medial or lateral epicondyle of the elbow. It expressly includes medial and lateral epicondylitis. The definition is broader than the mere ICD-10-AM codes M77.0 or M77.1; the SoP's own meaning controls, consistent with Note 3 (which notes it is also known as elbow tendinopathy). This matters because a diagnosis that does not meet the definition may still fall within the ICD codes but not the SoP, or vice versa.

Factors are the specific exposures, events or conditions listed in section 9. Each factor has precise requirements: for example, factor 9(3) requires a sudden alteration of loading pattern as specified, defined in the Dictionary as suddenly increasing the frequency, duration or intensity of forceful and repetitive or sustained activities by at least 100 per cent and to a minimum intensity of at least 5 METs (metabolic equivalents). The definition gives examples such as using a rowing machine, carrying objects of at least 10 kg, vigorous gardening, using heavy power tools or carpentry. This imposes a significant evidentiary burden on a claimant to show that the change was a doubling of load and that intensity reached 5 METs. Factor 9(4) covers fluoroquinolone antibiotics taken within 14 days before onset, listing ciprofloxacin, moxifloxacin, norfloxacin and ofloxacin as examples.

Clinical onset versus clinical worsening are distinguished. Factors 9(1) to 9(5) apply to establishing a reasonable hypothesis for the initial development of epicondylitis. Factors 9(6) to 9(11) apply to aggravation of pre-existing epicondylitis, but only where the condition was suffered or contracted before or during (but did not arise out of) the person's relevant service (section 10(2)). This distinction prevents using the same factors to claim original service-related epicondylitis if the condition existed prior to service and was unrelated to service.

Inability to obtain appropriate clinical management is factor 9(12). This catch-all factor allows a claim where the person's epicondylitis worsened or failed to improve because they could not access proper medical treatment due to their service circumstances (for example, being in a remote operational area). This is a common factor in many SoPs and can be a pathway when none of the specific exposure factors apply.

Relationship to service is required by section 10(1): the existence of any factor must be related to the relevant service rendered by the person. A claimant cannot merely prove the factor existed; they must also show it arose from their service, whether operational, peacekeeping, hazardous, British nuclear test defence, warlike or non-warlike service as defined in the Dictionary. The definitions of relevant service are identical to those used in the VEA and MRCA.

Terminal event is defined to include pneumonia, respiratory failure, cardiac arrest, circulatory failure, or cessation of brain function. This definition is relevant for death from epicondylitis: the SoP covers death contributed to by epicondylitis via a terminal event listed. The definition is identical to that in many other SoPs.

The primary persons affected are current and former members of the Australian Defence Force, including veterans who have rendered operational, peacekeeping, hazardous, British nuclear test defence, warlike or non-warlike service, as defined under the VEA and MRCA. Their dependents and legal personal representatives are also affected because the SoP covers death from epicondylitis, meaning claims for dependents' pensions or compensation for death may require reliance on this instrument.

The SoP directly binds the Repatriation Commission (administering the VEA) and the Military Rehabilitation and Compensation Commission (administering the MRCA). Decision-makers in those commissions must apply the factors when assessing liability for medical treatment costs, incapacity payments, permanent impairment compensation, and death benefits related to epicondylitis. The SoP also affects the Administrative Appeals Tribunal and the Veterans' Review Board (or the MRCA equivalent) when reviewing decisions, because those tribunals must apply the same standard and factor list.

Medical practitioners who treat veterans and provide reports for compensation claims are indirectly affected. They must understand the temporal and intensity thresholds to document evidence that matches the factors. For example, a general practitioner treating a veteran with tennis elbow will need to record the nature and duration of forearm activities, computer mouse use, recent antibiotic prescriptions, and any underlying spondyloarthritis. The precise MET requirement for sudden loading (5 METs) and the doubling threshold may require occupational therapist or physiotherapist input to quantify, raising costs for claimants.

Legal practitioners, advocates and compensation specialists must navigate the factor list carefully. The restrictive thresholds mean many claims that might be plausible on a clinical level may fail because the evidence cannot demonstrate, for example, that forceful activities were performed for at least one hour per day on more days than not over four weeks, or that computer mouse use reached 20 hours per week consistently over six months. This places a premium on early documentation of activities and service records.

Employers who hire veterans are marginally affected: if a veteran can establish service-related epicondylitis, the veteran's medical costs and compensation are borne by the Commonwealth, not the employer, so no direct liability arises. However, employers may face indirect costs if a veteran's work duties aggravate a service-related condition and the veteran requires workplace adjustments or time off covered by employer leave policies. The SoP does not directly affect civilian workers' compensation schemes, but it may be used as evidence in common law claims if a veteran alleges that the Department of Defence or a defence contractor caused the condition through unsafe practices. However, the SoP itself is only binding for VEA and MRCA claims; it is not conclusive in other forums.

The RMA's determination also affects the broader pool of potential claimants who have epicondylitis and service history, including those who served decades ago. The SoP applies to all claims made after its commencement, regardless of when the epicondylitis occurred or when the person served, provided the claim is subject to section 120A of the VEA or section 338 of the MRCA.

The instrument does not impose direct duties on individuals. The primary duty is on decision-makers in the Repatriation Commission and the Military Rehabilitation and Compensation Commission to apply the SoP when determining claims. Under the VEA and MRCA, they must accept a claim if the material raises a reasonable hypothesis that the epicondylitis is connected to service, and the hypothesis is consistent with at least one factor in the SoP, provided the hypothesis is not contrary to proven facts or the material does not disprove the hypothesis beyond reasonable doubt.

Claimants have the right to rely on the SoP to support their claim. The right is procedural: if they can point to evidence of a factor and a medical opinion linking that factor to epicondylitis, they have a prima facie right to succeed unless the decision-maker can negative the hypothesis by reference to other evidence. The SoP thus provides a framework for decision-making that channels the exercise of discretion.

The instrument also provides a right to a replacement SoP when a new one is made. Section 4 repeals the previous SoP (No. 7 of 2015). Claimants whose claims were decided under the old SoP may have the right to seek review or a fresh claim if the new factors are more favourable. However, the new SoP does not automatically re-open decided claims; the VEA and MRCA have their own provisions for reopening due to new evidence or SoP changes.

Section 11 introduces a duty of consistency: if a factor in this SoP refers to an injury or disease covered by another Statement of Principles, the factors in that other SoP apply in accordance with its terms as in force from time to time. For example, if a factor refers to "spondyloarthritis" and that condition has its own SoP, the definition and factor list in that other SoP must be applied. This prevents the SoP from operating in isolation and ensures that conditions mentioned as factors are themselves diagnosed in accordance with RMA standards.

The instrument does not confer any right to claim for epicondylitis itself outside the VEA and MRCA. It has no application in civil litigation, though a court may consider the SoP as relevant medical-scientific evidence. It also does not create rights against third parties such as employers or pharmaceutical companies.

The SoP itself contains no penalties. It is a legislative instrument that sets out evidentiary standards. Enforcement of the rights it creates occurs through administrative decision-making and subsequent review. If a decision-maker incorrectly applies the SoP, a claimant may apply for internal review by the commission, then to the Veterans' Review Board (or MRCA review body), and ultimately to the Administrative Appeals Tribunal and the Federal Court on questions of law. There is no penalty for ignoring the SoP, but a decision not to apply it correctly can be set aside.

Indirect penalties may apply under the VEA and MRCA if a claimant makes a false or misleading statement in support of a claim, but those are general provisions not specific to this instrument. Similarly, a medical practitioner who knowingly provides a false report could face professional misconduct sanctions, but again not under this SoP.

The real enforcement mechanism is the binding nature of the SoP on decision-makers. The RMA has no enforcement role; its function is limited to determining the SoP under s196B(2). The SoP is disallowable by either House of Parliament within 15 sitting days after tabling, but that is a political check, not a legal penalty.

Compliance costs for the Commonwealth arise from having to process claims that meet the factor thresholds. Since the SoP expands the scope relative to the 2015 SoP? We cannot compare because we do not have the old text. The new SoP adds factors such as hand-held computer mouse use and spondyloarthritis, which were not in the previous version? The instrument does not state what changed; it only repeals and replaces. The RMA's view that sound medical-scientific evidence exists is a broad statement, but the economic cost is that more conditions may be accepted as service-related, increasing compensation payments and medical treatment costs. Those costs are ultimately borne by taxpayers. Conversely, the precise thresholds may reduce claims where evidence is weak, limiting expenditure.

From an economic perspective, the SoP creates concentrated benefits for veterans who can satisfy the factors (they receive compensation) and diffuse costs on taxpayers. The detailed thresholds may also create a compliance burden on claimants to document activities precisely, which may be costly in terms of time to gather evidence, particularly for older claims where records are sparse. This could lead to under claiming, defeating the intended purpose of simplifying the process.

This SoP is made under section 196B(2) of the VEA and applies to claims under section 120A of the VEA and section 338 of the MRCA. It does not directly interact with state workers' compensation laws or common law, but it may be used as persuasive medical evidence in those forums. The definition of relevant service in the Dictionary excludes peacetime service that is not operational, warlike or non-warlike, meaning that veterans with only peacetime service under the VEA (known as defence service) cannot use this SoP unless that service falls within the listed categories.

Section 11 creates a cross-reference to other Statements of Principles determined under subsection 196B(2). If a factor in this SoP mentions an injury or disease that itself has an SoP (for example, spondyloarthritis is mentioned; spondyloarthritis is likely covered by its own SoP), the factors in that other SoP must be applied as in force from time to time. This ensures consistency: a veteran claiming that spondyloarthritis is a factor for epicondylitis must first establish that they have spondyloarthritis by reference to the SoP for spondyloarthritis (if one exists). This stacking of SoPs can create a chain of evidentiary requirements that must all be satisfied.

The SoP also interacts with the VEA's standard of proof provisions. Section 120A of the VEA provides that a claim relating to an injury or disease for which an SoP exists shall be decided in accordance with the SoP, and the reasonable hypothesis test only applies if the material raises such a hypothesis consistent with the SoP. If no factor exists, the claim cannot succeed under the reasonable hypothesis standard, but the claim may still be considered under the "balance of probabilities" standard for post-1994 operational service? Actually, the VEA has different standards for different types of service. The SoP applies across all relevant service types, but the standard of proof (reasonable hypothesis vs reasonable satisfaction) is still governed by the VEA. The SoP does not change that.

The instrument does not interact with the Safety, Rehabilitation and Compensation Act 1988 (Commonwealth workers' compensation) because that Act applies to employees not covered by the VEA or MRCA. However, a veteran who is also a current Commonwealth employee may have a choice of scheme, and the SoP may be used in the other scheme as evidence of work-relatedness.

The SoP's definition of epicondylitis is independent of the ICD-10-AM classification, but note (3) states that while epicondylitis attracts ICD codes M77.0 or M77.1, the meaning is as given in subsection 7(2). This means a diagnosis that technically falls under those codes but is not a tendinopathy of the epicondyle may not fit. Conversely, a diagnosis fitting the definition but assigned a different code may still be covered. This can create confusion for medical coders and decision-makers.

This instrument is No. 5 of 2023, made on 23 December 2022 and commencing 23 January 2023. It repeals the Statement of Principles concerning epicondylitis No. 7 of 2015 (registered as F2014L01784). The repeal is in section 4. The instrument does not provide a summary of changes, but the RMA presumably reviewed medical evidence and adjusted the factor list, thresholds or definitions. Common changes in new SoPs include adding new factors (such as hand-held computer mouse use, which reflects modern workplace exposures), updating MET values, or revising definitions (such as spondyloarthritis). Without the old text, we cannot specify the differences.

The instrument is a legislative instrument subject to tabling and disallowance under the Legislation Act 2003. It must be registered on the Federal Register of Legislation. No amendment history beyond this single instrument exists; it is the current version. Future amendments will require a new instrument under section 196B(2) or (3) of the VEA.

The RMA may also issue a "Balance of Probabilities" version of the SoP under subsection 196B(3). That version would apply to claims where the standard of proof is reasonable satisfaction (balance of probabilities) rather than reasonable hypothesis. This instrument is the "Reasonable Hypothesis" version. Typically, the two versions have identical factors but the balance of probabilities version may require a stronger causal connection (e.g., the factor contributed to the condition in a material degree, rather than merely raising a hypothesis). This instrument is explicitly the reasonable hypothesis version; a separate instrument (likely No. 4 of 2023) would be the balance of probabilities version for epicondylitis. That instrument would be made under subsection 196B(3) of the VEA. Readers should confirm they are looking at the correct version for the claim type.

This instrument is too recent to have generated any reported litigation directly considering its provisions. At the time of writing, there are no published decisions of the Administrative Appeals Tribunal or the Federal Court that interpret or apply this specific instrument. Claims relying on it will arise in the Tribunal and court systems, but no case law yet exists. The previous SoP No. 7 of 2015 may have been the subject of litigation, but this instrument does not reference any case law, and we cannot invent or discuss cases not mentioned in the source.

That said, the SoP will be applied in the context of the broader jurisprudence on section 120A of the VEA and section 338 of the MRCA. Previous Federal Court decisions regarding the meaning of "reasonable hypothesis" and the role of SoPs remain relevant. The instrument itself cannot depart from the statutory framework as interpreted by courts. Any future litigation will likely focus on whether a particular factor has been established on the evidence, or whether the factor is related to service. Disputes over the definition of "sudden alteration of loading pattern" and the quantification of METs may arise. The catch-all factor of inability to obtain appropriate clinical management is also a common ground for dispute, as it requires determining what constitutes appropriate clinical management and whether the inability was due to service circumstances.

Several provisions in this SoP are traps for the unwary. First, factor 9(1) for clinical onset requires both forceful activities and either repetitive or sustained activities. The direction "in combination with" means the claimant must have performed both a forceful component and a repetitive or sustained component. The note clarifies that activities involve bending/straightening the elbow, rotation, pronation, supination, twisting, flexion/extension of wrist or hand. However, the requirement that these activities be performed "for at least 1 hour per day, on more days than not, over a period of at least the 4 weeks" before clinical onset is demanding. A single episode or intermittent work is insufficient. The threshold excludes many common tasks that are forceful but not sustained for that duration, such as occasional heavy lifting in a warehouse job. Similarly, computer mouse use requires at least 20 hours per week for six months, which is roughly 2.85 hours per day every day. Many administrative workers do not track mouse time that precisely, and evidence may be lacking.

Second, the sudden alteration of loading pattern factor (9(3) and 9(9)) is extremely specific: a 100 per cent increase in frequency, duration or intensity of forceful and repetitive or sustained activities, to a minimum of 5 METs, for a continuous period of at least 1 hour within the 3 days before clinical onset or worsening. The 100 per cent increase must be in one of the three parameters; doubling the frequency alone is not enough if duration or intensity also does not increase? The definition says "frequency, duration or intensity" in the alternative. But the example of "using a rowing machine" suggests a single session of new activity. However, the requirement that it be a "sudden alteration" and continuous for 1 hour means that sporadic brief increases do not count. Proving that the person engaged in rowing at 5 METs for an hour could be feasible, but the doubling of previous load is difficult to establish if the person had no prior baseline activities. This factor likely requires specific evidence, such as a gym log or service record of a sudden manual task. It may be rarely successfully invoked.

Third, the spondyloarthritis factor (9(5) and 9(10)) requires the condition to be diagnosed and present at the time of clinical onset or worsening. The definition of spondyloarthritis in the Dictionary is limited to ankylosing spondylitis, enteropathic spondyloarthropathy, reactive arthritis, and undifferentiated spondyloarthropathy. It does not include psoriatic arthritis or other forms of spondyloarthritis unless they fall under undifferentiated. Claimants with psoriatic arthritis or other spondyloarthropathies may not qualify, unless their condition is undifferentiated. This is a narrow capture.

Fourth, the inability to obtain appropriate clinical management factor (9(12)) applies to clinical onset? No, it appears as factor 9(12) without specifying whether it is for onset or worsening. The layout: factors 9(1) to 9(5) are for clinical onset, 9(6) to 9(11) for clinical worsening, and 9(12) is for inability to obtain appropriate clinical management. By its language, "inability to obtain appropriate clinical management for epicondylitis" could cover both onset (if lack of management led to onset) or worsening, but it is not explicitly linked to onset or worsening. In practice, this factor is likely used for worsening where treatment was unavailable. But the wording is ambiguous; decision-makers may limit it to worsening.

Fifth, section 10(2) restricts factors 9(6) to 9(11) (clinical worsening factors) to cases where epicondylitis was suffered or contracted before or during (but did not arise out of) relevant service. This means if a person had epicondylitis that arose out of service, the clinical worsening factors cannot be used. They can only be used for pre-existing conditions unrelated to service. This is easily overlooked.

Sixth, the definition of relevant service excludes peacetime service that is not operational etc. A veteran with only peacetime service (e.g., a reservist on non-operational tasks) may not have relevant service for this SoP. They would have to rely on different provisions.

For claimants and their representatives, compliance means assembling evidence to satisfy at least one factor from section 9 and demonstrating that the factor is related to relevant service. The most straightforward factors to prove are often the occupational ones: factor 9(1) or 9(6) for forceful repetitive/sustained activities, and factor 9(2) or 9(7) for computer mouse use. Claimants should document the exact nature of their duties: job descriptions, shift logs, time sheets, statements from supervisors, to establish that for at least 4 weeks before onset they performed the activities for at least 1 hour per day on most days. For mouse use, self-reported weekly hours can be combined with IT logs of click activity if available.

For the sudden loading factor, evidence of a single event or sudden increase is needed, such as a record of an unaccustomed physical task, a training course, or an incident report. Fitness assessment data (e.g., from defence health records) might show baseline MET capacity. Medical records should note the date of clinical onset precisely.

For fluoroquinolone antibiotics, pharmacy records or prescription data are essential. The factor requires taking the antibiotic within 14 days before onset. The examples in the Note are not exhaustive. The claimant must show a temporal connection.

For spondyloarthritis, a diagnosis of one of the listed conditions must be confirmed by a rheumatologist. Medical records should document the diagnosis and its existence at the time of epicondylitis onset or worsening.

If none of the exposure factors apply, the fallback is factor 9(12): inability to obtain appropriate clinical management. This requires evidence that the claimant was unable to access medical care, physiotherapy, or appropriate treatment for epicondylitis due to service circumstances (e.g., being deployed, in a remote area). Documentary evidence of denied medical appointments, lack of specialist availability, or operational constraints is needed.

For decision-makers at the commissions, compliance means checking each claimed factor against the precise language. If a factor refers to another SoP (e.g., spondyloarthritis), the decision-maker must look up the current SoP for that condition and apply its factors. The note to the Dictionary confirms the meaning of terms, so cross-referencing is mandatory.

The instrument also imposes a compliance burden on the RMA to periodically review and update SoPs based on new medical evidence. That obligation exists under the VEA, not in this instrument.

For legal practitioners, the key is to map the evidence to the factor requirements at an early stage and advise the client realistically if the evidence is insufficient. Given the high thresholds, many claims will fail. Practitioners should consider whether the claimant might have other conditions covered by other SoPs (e.g., osteoarthritis of the elbow) that have different factors.

Overall, the SoP is designed to provide a clear, evidence-based checklist. Compliance is a matter of rigorous factual documentation. The costs of gathering that documentation may be high, but the incentivised pathway for claimants is to focus on the computer mouse and forceful activities factors, as they are most likely to be satisfied by modern service roles involving computers or manual labour.