Statement of Principles concerning gluteal tendinopathy (Reasonable Hypothesis) (No. 94 of 2023)

Gluteal tendinopathy is defined in subsection 7(2) as a symptomatic inflammatory or degenerative disease of the gluteus medius or gluteus minimus tendons at or near their insertion into the greater trochanter of the hip. The clinical manifestations typically include pain and tenderness in the lateral hip or buttock that worsens with physical activity, and it may be associated with degenerative tendon tears. The instrument assigns ICD-10-AM code M76.0 but notes that the definition in subsection 7(2) governs for application of this Statement of Principles.

Relevant service is defined in the dictionary as operational service, peacekeeping service, hazardous service, or British nuclear test defence service under the VEA, or warlike or non-warlike service under the MRCA. This list is exhaustive; other forms of service, such as peacetime service under the VEA that is not operational, are excluded. This means the instrument does not apply to all veterans, only those with the specified types of service.

Reasonable hypothesis is the standard of proof used in these claims. Although not defined in the instrument itself, it is a legal concept under section 120A of the VEA and section 338 of the MRCA. It requires that the hypothesis be reasonable, meaning it is not fanciful, impossible, or so improbable that it cannot be seriously entertained. The RMA’s determination that sound medical-scientific evidence exists is the basis for concluding that the factors can raise such a hypothesis.

Clinical onset and clinical worsening are key temporal markers. The factors are tied to the period before either the first appearance of the condition (onset) or its aggravation (worsening). This imposes a strict requirement that the claimed causal activity or event must precede the condition’s manifestation.

MET (metabolic equivalent) is defined as a unit of measurement: 1 MET = 3.5 ml of oxygen/kg of body weight per minute, or 1.0 kcal/kg of body weight per hour, or resting metabolic rate. The instrument sets specific MET thresholds for weight bearing exercise and increased activity. This creates a need for objective assessment of exercise intensity, which may be difficult to prove retrospectively.

Direct trauma to the affected tendon is defined in detail: it must be a discrete event applying significant physical force to the tendon, causing symptoms and signs of pain and tenderness with altered mobility or range of movement, persisting for at least seven days unless medical intervention occurs. The medical interventions that can cut the seven-day period are limited to immobilisation by splinting, corticosteroid or local anaesthetic injection, or surgery. This definition prevents minor bumps or transient soreness from qualifying.

Systemic inflammatory disease is exhaustively listed: rheumatoid arthritis, polymyalgia rheumatica, ankylosing spondylitis, enteropathic spondyloarthropathy, psoriatic arthropathy, reactive arthritis, and undifferentiated spondyloarthropathy. No other inflammatory diseases, such as systemic lupus erythematosus or gout, are included, which may limit claims for those conditions.

Being obese is defined as a Body Mass Index (BMI) of 30 or greater, using the standard formula of weight in kilograms divided by height in metres squared. This is a binary threshold; a BMI of 29.9 does not satisfy the factor, regardless of body composition or distribution of fat.

Inability to obtain appropriate clinical management is a factor that applies only to clinical worsening, not to initial onset. This is typical in Statements of Principles and reflects the idea that if a person cannot access treatment for the condition, that can aggravate it, and that inability must be related to service.

The instrument directly affects four groups: claimants, decision-makers, medical professionals, and legal representatives.

Claimants are veterans or members of the Australian Defence Force who have rendered relevant service as defined. This includes those who served in operational deployments, peacekeeping missions, hazardous service, British nuclear testing, or warlike or non-warlike service under the MRCA. A person claiming for gluteal tendinopathy, or for death from that condition, must show that at least one factor from section 9 existed and was related to their service. The instrument affects both new claims and applications for review of previous refusals. It also affects dependants claiming death benefits if the deceased had gluteal tendinopathy that contributed to the terminal event.

Decision-makers at the DVA are required to apply this instrument when assessing claims under sections 120A of the VEA or 338 of the MRCA. They cannot substitute their own judgment about whether there is a reasonable hypothesis outside the factors listed. If a factor is met and related to service, the decision-maker must accept that a reasonable hypothesis exists. If no factor is met, the decision-maker must reject the claim, unless the person can rely on a factor that refers to another Statement of Principles under section 11. This instrument therefore removes discretion and imposes a binary, rule-based outcome at the hypothesis stage.

Medical professionals are affected because they provide the evidence needed to establish factors. For example, a general practitioner or physiotherapist may need to document a patient’s running distance, exercise intensity, or obesity status. The quantitative thresholds (30 km/week, 5 METs, 100 per cent increase) require objective measurement or reasonable estimation. The definition of direct trauma may require medical records showing the persistence of symptoms for seven days or documentation of a specific medical intervention. Medical reports prepared after the event may be given less weight.

Legal representatives for claimants must frame their arguments around the instrument’s factors. They need to gather evidence that matches the exact wording: not just “I did a lot of running,” but “I ran an average of 32 km per week in the four weeks before my hip pain started.” They must also ensure that the factor is linked to relevant service - for example, if the running occurred during a military training exercise that is part of operational service, that would satisfy section 10. If the obesity factor is relied on, the claimant must show that the obesity itself is related to service, perhaps through a separate medical condition or service-related inactivity.

The RMA itself is affected in the sense that it must keep the instrument under review and may amend or replace it if new evidence emerges. The repeal of the old instrument shows that the RMA updates these statements periodically.

Duty of the RMA: Under subsection 196B(2) of the VEA, the RMA must determine Statements of Principles where it is of the view that there is sound medical-scientific evidence that a particular injury or disease can be related to relevant service. This duty is ongoing; the RMA must consider new evidence and may revoke or replace instruments. The instrument recites that the RMA is of that view, and the factors are the product of that assessment.

Duty of the decision-maker: In applying the instrument, the decision-maker must accept the existence of a reasonable hypothesis if at least one factor in section 9 is present and is related to the person’s relevant service. This is not a discretionary power; it is a mandatory conclusion. The decision-maker must also correctly interpret the definitions in the dictionary, such as the precise meaning of “direct trauma” or “being obese”. Misapplying these definitions may lead to jurisdictional error.

Right of the claimant: The claimant has a right to have their claim assessed under this instrument. If the factors are met, the claimant is entitled to have the reasonable hypothesis standard satisfied, which then shifts the burden to the decision-maker to disprove the connection on the balance of probabilities at the later stage. The claimant also has a right to provide evidence to prove each factor, including medical evidence and records of activities.

Right to rely on other Statements of Principles: Section 11 provides that if a factor in this instrument refers to an injury or disease covered by another Statement of Principles, then the factors in that other instrument apply. This is relevant, for example, if the systemic inflammatory disease factor is met by a condition such as rheumatoid arthritis, which itself may have its own Statement of Principles that governs how that condition relates to service. This creates a chain of causation analysis.

Duty not to exaggerate: Although not explicit in this instrument, the VEA and MRCA impose obligations on claimants to provide truthful information. Making a false statement in support of a claim can lead to criminal penalties under the Criminal Code (fraud offences) or civil recovery of overpaid benefits.

Right to review: If a decision-maker refuses a claim on the basis that no factor is met, the claimant may seek review by the Veterans’ Review Board, the Administrative Appeals Tribunal, and ultimately the Federal Court. In such reviews, the correctness of the application of this instrument will be central.

This instrument itself does not create offences or penalties. It is a Statement of Principles, not a penal law. Enforcement of its provisions occurs through the claims assessment process. If a claimant misrepresents facts to meet a factor (for example, falsely claiming to have run 30 km per week), they could be prosecuted under section 134.1 of the Criminal Code (obtaining a financial advantage by deception) or under the VEA for making a false statement. The penalties can include imprisonment or fines.

The main consequence of failing to satisfy the instrument is that the claim for compensation will be refused. This is a civil consequence, not a penalty. A person who is refused may seek review, but the instrument binds the reviewer. Therefore, the instrument indirectly enforces itself: if the evidence does not support a factor, the claim fails.

There is no penalty for a decision-maker who misapplies the instrument, but such misapplication would be an error of law that could be corrected on judicial review. The decision would be set aside and remitted. The instrument does not impose duties on medical practitioners, but a doctor who provides a knowingly false report could face professional discipline or criminal liability for fraud.

The instrument also does not require the DVA to enforce its terms in any proactive sense. It is simply a standard that must be applied when processing claims.

This instrument is made under subsection 196B(2) of the VEA. It operates as a legislative instrument under the Legislation Act 2003. It is one of many Statements of Principles determining factors for various conditions. Section 11 provides that if any factor in this instrument refers to an injury or disease that itself has a Statement of Principles, then the factors in that other Statement of Principles apply. This creates a network of interconnected instruments. For example, if a claimant meets the systemic inflammatory disease factor by having rheumatoid arthritis, the factors in the Statement of Principles for rheumatoid arthritis would need to be considered to determine whether that disease is related to service.

The instrument also interacts with the VEA and MRCA provisions on standard of proof. Section 120A of the VEA requires that the reasonable hypothesis be assessed with reference to the relevant Statement of Principles. The instrument therefore determines the content of that hypothesis. Similarly, section 338 of the MRCA incorporates the same approach. If the instrument is not applied correctly, the claim may be decided without proper regard to the law, leading to error.

The instrument repeals the previous Statement of Principles No. 45 of 2015, which covered both trochanteric bursitis and gluteal tendinopathy. The new instrument deals only with gluteal tendinopathy. Trochanteric bursitis is now covered by a separate instrument (presumably). This change clarifies that the two conditions are distinct and have different factors. Claimants who previously relied on the old instrument for gluteal tendinopathy will now need to meet the new thresholds.

The instrument uses the ICD-10-AM classification but specifies that the clinical definition in subsection 7(2) overrides the code for the purpose of this instrument. This ensures that the condition is not restricted to cases coded by hospitals; a clinical diagnosis suffices.

The instrument does not directly affect other areas of law such as workers’ compensation in the states, motor accident compensation, or private health insurance. However, it may be used as evidence of causation in other forums if a veteran pursues a claim outside the VEA or MRCA. For example, in a common law claim for negligence, the Statement of Principles might be cited by an expert witness as indicating a recognised causal pathway.

The instrument was made on 25 October 2023 and commenced on 28 November 2023. It repeals the Statement of Principles concerning trochanteric bursitis and gluteal tendinopathy No. 45 of 2015. That earlier instrument had been in effect since 2015 and covered both conditions under the same list of factors. The new instrument isolates gluteal tendinopathy and updates the factors.

Comparing the two instruments (though the 2015 text is not provided in the source, we can infer changes from the new instrument’s text). The 2015 instrument was made under both subsections 196B(2) and (8) of the VEA, while the new one is under subsection 196B(2) only. Subsection 196B(8) relates to the reasonable satisfaction standard, which may indicate that the earlier instrument covered both the reasonable hypothesis and reasonable satisfaction standards. The new instrument is explicitly a “Reasonable Hypothesis” instrument, meaning it applies to the first stage of the claims process.

The factors in the new instrument appear to be more precisely quantified. The 2015 instrument likely had different thresholds for running or weight bearing exercise, but without the source we cannot specify. The inclusion of the “inability to obtain appropriate clinical management” factor is common in newer Statements of Principles, and may not have been present in 2015. The definition of direct trauma is more detailed, including the seven-day persistence requirement and specific medical interventions.

The dictionary definitions have been updated. For example, “systemic inflammatory disease” now includes a specific list; the 2015 instrument may have used a broader or different definition. The BMI threshold for obesity remains the same (30 or greater), consistent with other Statements of Principles.

There is no mention of any intermediate amendments or corrigenda. The instrument appears to be a single consolidated replacement.

The source does not refer to any specific litigation concerning this instrument or its predecessor. However, Statements of Principles in general are frequently litigated in the Administrative Appeals Tribunal and the Federal Court. Common grounds of challenge include the validity of the RMA’s determination of sound medical-scientific evidence, the construction of particular factors, and whether the factors are exhaustive. The courts have held that the RMA has a wide discretion in assessing medical evidence, and the factors are not to be interpreted rigidly but with regard to the instrument’s purpose.

The predecessor instrument for trochanteric bursitis and gluteal tendinopathy may have been the subject of cases, particularly on the distinction between the two conditions. The new instrument clarifies that gluteal tendinopathy is a separate condition, which may have been an issue in prior litigation. The more detailed definition of direct trauma may also respond to past disputes about what constitutes trauma.

Without specific case names, we cannot provide further detail. Generally, the litigation history of Statements of Principles shows that the courts give significant deference to the RMA’s expertise, but will intervene if a factor is applied unreasonably or if the instrument is misinterpreted.

Several traps exist for the unwary claimant or their adviser.

Quantitative thresholds are strict. The running factor requires an average of at least 30 km per week for the four weeks before onset. A person who ran 25 km per week does not meet the factor, even if that was a major increase for them. There is no discretion to consider relative effort. Similarly, weight bearing exercise must be at least 5 METs for four hours per week. Many activities such as gentle walking may be below 5 METs and thus not qualify.

The 100 per cent increase factor is very steep. It requires increasing the frequency, duration, or intensity by at least 100 per cent in one week. Doubling one’s activity is a significant change. Someone who gradually increased their walking over a month will not satisfy this factor, even if the cumulative change is greater. The factor also requires that the increased activity be at a minimum of 5 METs for at least two hours per day. This is a high bar.

Direct trauma requires persistence of symptoms for seven days unless medical intervention occurs. Many people with a hip injury may see a doctor and receive a corticosteroid injection within a few days, which interrupts the persistence requirement. However, the instrument lists only three forms of intervention that cut the seven-day period: immobilisation, injection, or surgery. If a person receives only anti-inflammatory medication and rest, the seven-day count continues. If they receive a cortisone injection on day 3, the factor may still be met if the injection qualifies. But if they receive only oral medication, they still need to show symptoms persisted for seven days. This is easy to overlook.

Obesity is defined by BMI = or >30, but the person must also show that the obesity itself is related to service. Many people are obese for reasons unrelated to military service. The factor is not automatically satisfied just because the person has a high BMI. The relationship to service must be established, which may require evidence of service-related conditions that caused weight gain, such as psychological conditions or physical injuries.

Systemic inflammatory disease list is exhaustive. A person with lupus or sarcoidosis cannot use this factor. If their inflammatory disease is not in the list, they must look to another factor or another Statement of Principles.

Inability to obtain appropriate clinical management applies only to worsening, not onset. If a person had gluteal tendinopathy before service and could not access treatment during service, that can be used to claim aggravation. But if the condition first appeared during service, this factor is not relevant. Claimants often try to misuse this factor.

The factor must be related to service. Section 10(1) requires that the factor itself must be related to the person’s relevant service. For example, if a veteran ran 30 km per week, but that running was entirely in their private time and unrelated to service, the factor exists but is not service-related, so the claim fails. The running must have been part of military duties, training, or a result of a service-related need.

The clinical worsening aspect applies only to material contribution. Section 10(2) limits the worsening factors to situations where the condition was suffered or contracted before or during (but did not arise out of) service. If the condition arose out of service, worsening factors cannot be used to make a separate claim.

The instrument applies only to claims under sections 120A of the VEA or 338 of the MRCA. It does not apply to claims under the Safety, Rehabilitation and Compensation Act 1988 for other veterans or to claims under the Defence Force Retirement and Death Benefits Act. Claimants must ensure they are in the right jurisdiction.

For claimants and their representatives, compliance means gathering precise evidence that matches the instrument’s wording.

For the running factor: Obtain a log of running distances for the four weeks before the onset of pain. If the person used a GPS watch or mobile app, print the data. If they cannot produce records, witnesses or diary entries may help. The average must be at least 30 km per week. If the person ran inconsistently, compute the weekly average from the four weeks. Show that the running occurred during or because of service (for example, during unit physical training).

For weight bearing exercise: Identify the specific activity (e.g., brisk walking, marching, football) and estimate the MET level. A MET of 5 corresponds to moderate activity such as walking at 5-6 km/h. Provide evidence of the hours per week for at least four weeks. Again, link the activity to service.

For the 100 per cent increase factor: Document the baseline activity level and the increased level in the week before onset. Show that the increase was at least 100 per cent and that the increased activity was at least 5 METs for two hours per day. This requires meticulous record keeping. Medical records may note a sudden increase in exercise.

For direct trauma: Obtain medical records from the time of the trauma. The records should describe a discrete event and the development of symptoms and signs. Ensure the records show that symptoms persisted for seven days or that one of the qualifying medical interventions occurred within that period. Keep records of any splinting, injection, or surgery.

For surgery: Obtain operative notes for hip surgery within the four weeks before onset or worsening.

For systemic inflammatory disease: Obtain a diagnosis from a specialist for one of the listed diseases. Ensure the diagnosis was made before the onset or worsening of gluteal tendinopathy.

For abnormal gait: Obtain a medical assessment or physiotherapy report documenting a significantly abnormal gait lasting at least four weeks before onset. Link the gait abnormality to service (e.g., from a prior injury).

For obesity: Calculate BMI. If the person’s BMI is 30 or greater at the time of clinical onset or worsening, then gather evidence connecting the obesity to service. This could be a medical opinion that a service-related injury caused reduced mobility and weight gain.

For inability to obtain appropriate clinical management: This applies only to worsening. The claimant must show that they could not access treatment (perhaps because they were deployed or in a remote location) and that this led to worsening. Medical records showing delayed treatment may help.

General compliance steps: Engage a medical specialist who understands the Statement of Principles to produce a report that addresses each relevant factor. The report should be structured around the instrument’s language. For example: “In my opinion, the patient ran an average of 35 km per week over the four weeks before 1 January 2023, which satisfies factor 9(1).” Avoid generic statements such as “the patient was physically active.” Provide specific numbers.

Decision-makers must comply by applying the instrument as written. They should not add extra requirements or deviate from the dictionary definitions. They should check that the factor is related to service and that the timeline is correct. If multiple factors are claimed, they should assess each one independently.

The instrument is a technical document. The key to compliance is precision in evidence and an understanding that the definitions are often narrower than lay understanding. A cautious adviser will assume that every term is potentially disputed and will gather as much objective documentation as possible.