Statement of Principles concerning iliotibial band syndrome (Balance of Probabilities) (No. 4 of 2019)

This instrument, the Statement of Principles concerning iliotibial band syndrome (Balance of Probabilities) (No. 4 of 2019), is a legislative determination made by the Repatriation Medical Authority under subsection 196B(3) of the Veterans’ Entitlements Act 1986 (VEA). It specifies the factors that must exist before iliotibial band syndrome, or death from that syndrome, can be found on the balance of probabilities to be connected with the circumstances of a person’s relevant service. Relevant service in this context means eligible war service (other than operational service) or defence service (other than hazardous service and British nuclear test defence service) under the VEA, or peacetime service under the Military Rehabilitation and Compensation Act 2004 (MRCA). The instrument applies to claims made under section 120B of the VEA or section 339 of the MRCA.

Mechanically, the instrument repeals the earlier Statement of Principles concerning iliotibial band syndrome No. 35 of 2010 and replaces it with an updated set of factors. The instrument does not create a new entitlement or alter the underlying eligibility criteria of the VEA or MRCA; rather, it operationalises the medical-scientific threshold that must be met for a claim to succeed when the standard of proof is the balance of probabilities. It sets out 13 separate factors covering both clinical onset and clinical worsening of the condition, including thresholds for running, weight-bearing exercise, cycling, knee reconstruction surgery, and inability to obtain appropriate clinical management. Each factor has specific quantitative or temporal criteria, such as running an average of at least 60 kilometres per week for at least four weeks before clinical onset, or undertaking weight-bearing exercise of at least five METs for at least six hours per week for four weeks.

The instrument also defines the condition narrowly: it is a condition of the distal portion of the iliotibial tract over the lateral femoral epicondyle, characterised by pain and tenderness over the lateral knee that worsens with activity, and it expressly excludes proximal iliotibial band syndrome and iliotibial band insertional tendinosis. The ICD‑10‑AM code M76.3 is referenced for administrative purposes but the definition in subsection 7(2) governs. This means a claimant must meet the clinical definition regardless of coding.

Critically, the instrument operates only where the applicable standard of proof is the balance of probabilities. That standard applies to claims relating to eligible war service (non-operational), defence service (non-hazardous), and peacetime service. For operational service or hazardous service, a different Statement of Principles under subsection 196B(2) of the VEA would apply, using the reasonable hypothesis standard. The instrument therefore narrows the universe of claims to which it applies, but within that universe it provides a structured, evidence-based pathway for establishing a causal connection. The Repatriation Medical Authority’s determination is based on what it considers “the sound medical‑scientific evidence available”, but the instrument itself does not disclose the underlying evidence or the reasoning beyond stating its view. That view is that it is more probable than not that iliotibial band syndrome can be related to the specified types of service. The instrument does not impose any duties on private persons; it is a rule of decision for the Department of Veterans’ Affairs and tribunals.

Iliotibial band syndrome is defined in subsection 7(2) as a condition of the distal portion of the iliotibial tract where it courses over the lateral femoral epicondyle, characterised by pain and tenderness over the lateral aspect of the knee which usually worsens with physical activity. The definition expressly excludes proximal iliotibial band syndrome and iliotibial band insertional tendinosis. This exclusion is important because those conditions may present with similar symptoms but would require a different Statement of Principles or possibly no covering instrument. The ICD‑10‑AM code M76.3 is acknowledged but the definition in the instrument is binding for its application; coding errors do not determine eligibility.

Balance of probabilities is the standard of proof applicable to claims under this instrument. It is the civil standard: the evidence must show that it is more probable than not that the claimed factor caused or contributed to the condition. This is a lower threshold than the reasonable hypothesis standard used for operational service claims under subsection 196B(2) of the VEA. The instrument is explicitly designated as a “Balance of Probabilities” instrument, which dictates which types of service it covers.

Relevant service is defined in the dictionary to mean 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, or peacetime service under the MRCA. This means the instrument does not apply to veterans who served in operational service or hazardous service; those veterans would rely on a separate “reasonable hypothesis” version of the SOP (No. 3 of 2019, presumably, though not reproduced here). The limitation is structural: it reflects the statutory scheme where different evidentiary standards apply based on the nature of service.

MET (metabolic equivalent) is defined as a unit of measurement of physical exertion: 1 MET = 3.5 ml of oxygen per kilogram of body weight per minute, 1.0 kcal per kilogram per hour, or resting metabolic rate. The instrument uses MET thresholds of at least 5 METs in several factors, requiring quantification of the intensity of weight-bearing activity or cycling. This imposes a factual evidentiary burden on claimants to show not just that they engaged in the activity, but that it was at or above 5 METs. Activities such as brisk walking, jogging, or stationary cycling at a moderate pace typically fall at or above 5 METs, but the claimant or their medical adviser must be prepared to ground the claim in published compendiums of MET values or expert opinion.

This instrument directly affects veterans and members of the Australian Defence Force who have served in categories that are not operational service, hazardous service, or British nuclear test defence service. Specifically, it covers:

• Current and former members who rendered eligible war service (non-operational) under the VEA. This includes service during periods of conflict but not directly in combat or designated operations.
• Members who rendered defence service (non-hazardous) under the VEA, typically peacetime service after a specified date.
• Members who rendered peacetime service under the MRCA, which covers most ADF members from 1 July 2004 onwards for non-operational peacetime service. These persons may suffer from iliotibial band syndrome and seek compensation or treatment for it. The instrument provides the specific criteria they must meet to have the condition accepted as service-related. Claimants who cannot satisfy at least one factor on the balance of probabilities will have their claims rejected, absent any other basis under the VEA or MRCA.

The instrument also affects the Department of Veterans’ Affairs, which must apply the SOP when assessing claims. It affects delegates, the Veterans’ Review Board, and the Administrative Appeals Tribunal, who refer to the SOP as a binding instrument. Legal practitioners and advocates who represent veterans must understand the precise factor thresholds and the evidentiary requirements. Medical practitioners who provide reports or opinions on claims may need to opine on MET levels, activity histories, and the relationship between the diagnosed condition and the claimed activities. The instrument does not impose obligations on private healthcare providers, but they may be drawn into the claims process as sources of evidence.

The instrument indirectly affects taxpayers who fund the compensation and healthcare system for veterans. Each acceptance of a claim on the basis of these factors represents a transfer of public funds to the individual claimant. The instrument’s thresholds are designed to limit acceptances to cases where the activity is substantial and causally plausible, but they do not address the cost to the public purse. The instrument also affects the Repatriation Medical Authority itself, which determined that the factors are based on sound medical-scientific evidence and will be reviewed periodically.

The instrument does not apply to members with operational service or hazardous service, who would rely on the “reasonable hypothesis” version of the SOP. That parallel instrument (likely No. 3 of 2019, for reasonable hypothesis) would have the same definition and factors but with a lower evidentiary standard. Therefore, whether a claimant is covered by this instrument rather than the reasonable hypothesis one turns on the legal characterisation of their service, not on the medical condition. This can create odd outcomes: a peacekeeper who runs 60 km/week in training may be denied because the SOP uses balance of probabilities, while a veteran with operational service who does the same may succeed under reasonable hypothesis if the hypothesis is not disproved beyond reasonable doubt. That asymmetry is inherent in the two-tiered statutory scheme.

This instrument does not create any duties or rights directly. It is a legislative rule of decision used in the administration of the VEA and MRCA. The rights that exist arise from those principal Acts: a veteran or member has the right to apply for compensation, medical treatment, or other benefits in respect of a condition that is service-related. The SOP is the mechanism for determining whether that condition is service-related under the applicable standard of proof.

The key “right” in practice is the right of a claimant to have their claim assessed in accordance with this instrument where the SOP is applicable. That means the decision-maker must consider each factor in s 9 and determine whether at least one exists and is related to relevant service. The claimant is entitled to have the instrument applied correctly; errors of law in its interpretation can be challenged through merits review or judicial review. For example, a decision-maker who misinterprets the definition of iliotibial band syndrome to include proximal syndrome would err, as would a decision-maker who applies the MET requirement incorrectly.

The instrument imposes an implied duty on decision-makers to apply the correct standard of proof (balance of probabilities, not reasonable hypothesis) and to consider the temporal limitations in s 10(2) regarding clinical worsening. It also imposes a duty to read the factor in light of the dictionary definitions, such as the MET definition. There is no positive duty on claimants to provide evidence, but as a practical matter the burden is on the claimant to satisfy the decision-maker that a factor exists on the balance of probabilities. The instrument itself does not allocate the legal burden of proof; that is governed by the VEA and MRCA.

The Repatriation Medical Authority has the power to determine Statements of Principles under s 196B of the VEA. This instrument is an exercise of that power. The Authority is not required to provide a public justification for its factor selection beyond the statement in s 8 that it is of the view, on the sound medical-scientific evidence available, that it is more probable than not that the condition can be related to the relevant service. Claimants and their representatives do not have a right to challenge the scientific basis of the factors during the claims process, though the instrument itself could be disallowed by Parliament or judicially reviewed if it exceeds the scope of the enabling power.

There is no right to choose which SOP applies. The statute determines the standard of proof based on the type of service. A claimant whose service is non-operational cannot elect to be assessed under the reasonable hypothesis SOP; they are bound by this balance of probabilities instrument. This may be perceived as a limitation on rights, but it is a structural feature of the veterans’ entitlements scheme.

This instrument does not contain any penalty provisions. It is not a penal instrument. However, it is used in the enforcement of veterans’ entitlements law, and penalties may arise under the VEA or MRCA for conduct such as making false or misleading statements in a claim. For example, if a claimant asserts they ran 60 km per week when they did not, and that claim results in benefits being paid, the VEA provides for prosecution and penalties, including imprisonment. The SOP itself is the evidentiary touchstone that determines whether the claim is valid; a false claim in relation to the factor may attract criminal consequences under the Criminal Code or the VEA.

The instrument also has a quasi-enforcement function in that it limits the circumstances in which the Department must accept a claim. If none of the factors is present, the claim must be refused. This refusal can be reviewed by the Veterans’ Review Board and then the Administrative Appeals Tribunal. Those bodies enforce the correct application of the SOP by setting aside decisions that misapply it. In that sense, the enforcement mechanism is administrative and judicial review, not criminal sanction against the veteran.

The Repatriation Medical Authority itself is not an enforcement body. It determines the SOP and does not enforce it. The Department of Veterans’ Affairs is responsible for applying the SOP in initial decisions. There is no penalty for the Department misapplying the SOP, but an erroneous decision may be set aside on review, and the Department may be required to pay compensation and costs.

The instrument’s interaction with the VEA and MRCA means that a decision-maker who ignores the SOP’s factors may commit an error of law, making the decision liable to be quashed. That is a form of legal enforcement. There is no specific penalty provision within the instrument for non-compliance by claimants, as it is not directed at regulating claimant behaviour. The “penalty” for a claimant who cannot establish a factor is simply the denial of benefits.

This instrument is made under subsection 196B(3) of the Veterans’ Entitlements Act 1986 (VEA). It operates within the framework of that Act and the Military Rehabilitation and Compensation Act 2004 (MRCA). It interacts directly with section 120B of the VEA and section 339 of the MRCA, which require the Repatriation Medical Authority to determine Statements of Principles and provide that a claim must be determined in accordance with the relevant SOP. If no SOP exists for a particular condition, the claim may proceed on the basis of the standard of proof without an SOP, but the medical evidence would still need to establish connection.

The instrument repeals and replaces the earlier Statement of Principles No. 35 of 2010. That earlier instrument is no longer in force. Any claim that was not finally determined before 28 January 2019 must be assessed under this new instrument if the balance of probabilities standard applies. Claims that were finally determined under the old SOP are not reopened automatically; however, if a claimant applies for a new claim or reviews a decision on the basis of changed circumstances, this instrument will apply.

The instrument also interacts with other Statements of Principles through s 11. If a factor refers to an injury or disease that is itself covered by another SOP (for example, knee reconstruction surgery with an implant might indicate an underlying knee condition), then the claimant must satisfy both SOPs. The other SOP applies as in force from time to time. This means a claimant who needs to rely on factor 6 (knee reconstruction surgery) must also show that the knee condition requiring surgery is service-related under its own SOP. This can create a cascade of evidentiary requirements.

The instrument is also informed by the ICD‑10‑AM coding system, but it is not bound by it. The definition of iliotibial band syndrome in subsection 7(2) overrides the code. If a medical practitioner assigns a different code, the decision-maker must still apply the definition. This avoids the risk of coding errors determining eligibility.

The instrument does not interact with state or territory workers’ compensation laws directly. However, a veteran may be eligible for compensation under both the VEA/MRCA and a state scheme. The VEA and MRCA contain provisions about coordination and prevention of double-dipping, but those are not addressed in this instrument.

The instrument’s legal status is that of a legislative instrument registered on the Federal Register of Legislation. It is subject to parliamentary disallowance under the Legislation Act 2003, though that is rare. It can also be judicially reviewed on administrative law grounds such as ultra vires or irrationality, though the instrument benefits from the RMA’s expertise and the courts have historically shown deference.

The instrument itself does not contain an amendment history beyond stating that it repeals the Statement of Principles concerning iliotibial band syndrome No. 35 of 2010. It was made on 21 December 2018 and commenced on 28 January 2019. There is no record in the instrument of any subsequent amendments; the instrument appears to be the current version as at the time of its publication on the Federal Register of Legislation. The Repatriation Medical Authority periodically reviews and updates Statements of Principles as medical evidence evolves. The previous SOP was from 2010, so approximately nine years passed between versions. This suggests that the RMA considered new medical evidence in the interim and concluded that the factors should be revised.

The instrument does not disclose what changes were made from the 2010 version. Practitioners who need to understand the differences would need to compare the two instruments side by side. Since the 2010 version is repealed, it is no longer in force but may still be relevant for transitional provisions if claims were lodged before commencement but not determined. However, the instrument states it applies to claims to which s 120B VEA or s 339 MRCA applies, which suggests it applies to claims made after its commencement as well as pending claims? The Application clause does not expressly address pending claims, but the general rule is that a procedural SOP applies to claims not yet determined. There may be transitional issues for claims that were lodged before 28 January 2019 but not yet decided; the VEA and MRCA would govern whether the old or new SOP applies, but the instrument does not address that.

No amending instruments are referenced. The instrument is likely the base instrument and may have been amended later, but that is not evident from the source. Without later amendments, we must treat it as the current version at the time of its creation. The RMA’s website or the Federal Register would show any later changes.

The source instrument does not refer to any litigation history. As a legislative instrument, it is not a court decision. However, Statements of Principles have been the subject of litigation in the Federal Court and the High Court. Cases such as Repatriation Commission v. Smith (2004) and Lees v. Repatriation Commission (2002) have considered the operation of the SOP scheme generally. Specific litigation about iliotibial band syndrome may exist, but the instrument does not name any cases and we cannot invent them. The absence of reference in the instrument does not mean there is no litigation; it simply means the RMA did not incorporate case law into the text.

The instrument may have been the subject of a challenge if a veteran claimed the factors were too restrictive or the definition was inconsistent with medical consensus, but the instrument itself is silent. In practice, the Administrative Appeals Tribunal frequently applies SOPs in individual cases, and those decisions are not binding precedents but may be persuasive. The Federal Court may consider whether the RMA has exceeded its power in determining a particular factor or definition. However, without any such record in the source, we cannot provide specific details. The prudent course is to note that litigants may seek review of decisions applying this SOP, but the instrument contains no such information.

Several features of this instrument are likely to trip up practitioners and claimants who do not read the fine print.

First, the definition of iliotibial band syndrome in s 7(2) excludes proximal iliotibial band syndrome and iliotibial band insertional tendinosis. A claimant diagnosed with ITB pain at the hip or with tendinosis at the insertion on Gerdy’s tubercle will not meet the definition. Medical reports must specify the distal lateral knee location. The ICD code M76.3 is not determinative; the clinical definition controls.

Second, the MET requirement in factors involving weight-bearing exercise and cycling is quantitative. Claimants must prove the intensity was at least 5 METs. Many activities fall below this threshold. For example, slow walking is about 3 METs, so it would not count. Even brisk walking may be around 4 METs. Jogging at 8 km/h is about 8 METs, but the specific activity must be measured. The instrument does not provide a reference table, leaving it to the decision-maker to assess evidence such as MET compendiums, heart rate data, or expert opinion. This creates a significant evidentiary burden for claimants who do not have fitness tracking records.

Third, the running factor requires an average of at least 60 km per week for at least four weeks before clinical onset or worsening. This is a high volume. Many recreational runners do not reach this level. The average is over the four-week period, so it is not necessary to run 60 km each week, but the average must be at least 60. If a claimant ran 50 km, 70 km, 60 km, and 50 km over four weeks, the average is 57.5 km, which fails. That is a hard edge.

Fourth, the factor for undertaking weight-bearing exercise involving repeated flexion and extension of the affected knee uses a threshold of six hours per week at 5 METs. This specifically requires the movement to involve the affected knee. Bilateral activity would cover both knees, but if the condition is in one knee, the exercise must involve repeated flexion/extension of that knee. Stationary cycling with one leg? Probably not; the activity must involve the knee.

Fifth, the “inability to obtain appropriate clinical management” factor in s 9(13) is open-ended. It does not specify what constitutes inability. For example, if a veteran in a remote area could not see a physiotherapist, does that count? What if the veteran refused treatment for personal reasons? The term “inability” suggests a lack of access or some barrier beyond the claimant’s control, but the instrument does not elaborate. This factor could be a fallback for claimants who cannot meet the activity thresholds, but it may be interpreted narrowly. It could also be used for worsening: if a claimant could not obtain treatment and the condition worsened, that factor may apply. But the claim must be based on evidence of inability, not just non-treatment.

For a claimant seeking to establish that iliotibial band syndrome is service-related under this instrument, the path requires careful documentation and evidence gathering. The first step is to confirm that the veteran’s service falls within “relevant service” as defined. That is the gateway. If the veteran has operational service, this instrument should not be used; the reasonable hypothesis SOP applies. If the service is non-operational eligible war service, defence service (non-hazardous), or peacetime service under the MRCA, this instrument governs.

Second, a medical practitioner must confirm the diagnosis of iliotibial band syndrome per the definition in s 7(2). The diagnosis should specifically state that the condition involves the distal portion of the iliotibial tract over the lateral femoral epicondyle, and should exclude proximal ITB syndrome and insertional tendinosis. Imaging such as MRI or ultrasound may be helpful. The medical report should reference the clinical features of pain and tenderness over the lateral knee worsening with activity. If the claim is for death, a separate medical report linking the death to the syndrome and a terminal event is needed.

Third, identify which factor or factors in s 9 potentially apply. For clinical onset, factors 9(1) to 9(6) are available. For clinical worsening, factors 9(7) to 9(13) apply, but only if the condition was pre-existing and not arising out of service (per s 10(2)). The claimant must gather evidence of the relevant activity or event. The evidence must cover the specific time window: the factor must exist in the period before clinical onset or worsening, as specified (e.g., four weeks before, seven days before, one year before).

For the running factor (9(1) or 9(7)), the claimant must show an average of at least 60 km per week for at least four consecutive weeks before the onset or worsening. Evidence could include training logs, GPS watch data, smartphone fitness apps, or a personal diary corroborated by witnesses. Unit fitness records or service medical records may document physical training. For service personnel, structured PT sessions may be recorded. The average is calculated over the four weeks; a claimant should be able to demonstrate weekly distances.

For the weight-bearing exercise factor (9(2) or 9(8)), the evidence must show that the exercise involved repeated flexion and extension of the affected knee, was at least 5 METs intensity, and was performed for at least six hours per week for four weeks. The MET level can be estimated using standard compendiums. For example, hiking at 5 km/h with a pack is about 5 METs; squatting exercises may be higher. A detailed activity diary with descriptions of exertion levels is important. If possible, use a heart rate monitor or accelerometer to estimate energy expenditure.