Statement of Principles concerning knee bursitis (Balance of Probabilities) (No. 66 of 2018)

Knee bursitis is defined in subsection 6(2) as inflammation or infection of a bursa around the knee joint, but expressly excludes popliteal (Baker) cyst. The instrument assigns ICD-10-AM codes M70.4 and M70.5, but the meaning is governed by the definition not the code, so a clinician's diagnosis must meet the inflammatory/infective requirement, not just the code. The definition differentiates between subtypes of bursitis to which different factors apply: prepatellar, superficial infrapatellar, medial collateral ligament, pretibial, and other (non-prepaterllar, non-infrapatellar). This is critical because many factors are subtype specific for example, factor (2) only applies to prepatellar or superficial infrapatellar bursitis, factor (3) only to medial collateral ligament bursitis, and factor (8) only to prepatellar, superficial infrapatellar or pretibial bursitis. The SoP recognises both 'clinical onset' and 'clinical worsening' as two separate events. Factors (1) to (9) apply to onset; factors (10) to (19) apply to worsening. Worsening factors track the onset factors except for factor (19) (inability to obtain appropriate clinical management) which applies to both but is listed only in the worsening set but by its nature could also apply to onset? Actually factor (19) appears only in the worsening list (s8(19)), but it is a standalone factor: inability to obtain appropriate clinical management. However note that section 9(2) says factors in s8(10) to (19) apply only to material contribution or aggravation where the condition was suffered or contracted before or during (but did not arise out of) relevant service. This creates a temporal distinction: onset factors require the condition to arise during service; worsening factors apply where the condition pre-existed service and is aggravated by service. The 'balance of probabilities' standard is the basis for the Authority's determination (section 7: 'more probable than not that knee bursitis ... can be related to relevant service'). This standard is lower than the 'reasonable satisfaction' standard for operational service, but still requires the decision-maker to be satisfied the factor exists and is service related. The dictionary in Schedule 1 defines key terms such as 'immunocompromised state as specified', 'specified list of diseases', 'crystal-induced arthropathy', 'chronic renal failure', 'immunosuppressive drug', 'terminal event', and 'relevant service'. The definition of 'relevant service' is narrow and excludes operational service, hazardous service, and British nuclear test defence service, which means this SoP predominantly covers peacetime and non-operational service.

This instrument directly affects veterans and members of the Australian Defence Force who have rendered relevant service (eligible war service other than operational, defence service other than hazardous and British nuclear test, or peacetime service under MRCA) and who suffer from knee bursitis or die from it. It also affects their dependants and legal representatives when making claims for incapacity payments, medical treatment, or death benefits. The decision-makers most directly affected are the Repatriation Commission, the Veterans' Review Board, the Administrative Appeals Tribunal, and ultimately the Federal Court, all of whom must apply this SoP when assessing claims that fall under the VEA or MRCA where the standard of proof is balance of probabilities. The instrument also affects medical professionals who provide evidence in support of claims: they must understand the specific definitions and factor thresholds to give useful opinions. For example, a rheumatologist or sports physician must know that a running threshold of at least 60 kilometres per week for four weeks is required for non-prepaterllar bursitis, and that the running must be related to service. Industrial workers, tradespeople, defence force personnel in occupational roles, and athletes in service are directly impacted by the kneeling and the medial knee pressing factors. The instrument creates a compliance burden on claimants to produce documentary evidence of activity levels, trauma history, surgical records, infection history, and skin conditions. It also affects medical advisers who must opine on whether a condition meets the definition, whether a factor exists, and whether the onset or worsening timeline aligns with service. The cost to claimants is both financial (legal and medical fees) and temporal (gathering records, waiting for determination). The government bears the cost of administering the claim assessment process, but the instrument reduces the scope for discretion, potentially limiting successful claims to only those who fit within the prescribed factors. Critics might argue that the tight factor thresholds exclude plausible causal scenarios that lack the precise quantified exposure. The instrument does not apply to operational service claims, so those claimants are unaffected by this SoP and are governed by a different standard under the VEA.

The instrument creates no duties or rights directly on claimants or service providers. Instead, it imposes a binding framework on decision-makers under the VEA and MRCA. The key right for a claimant is the right to have their claim assessed using this SoP if they fall within its application (section 4). If a claimant can establish that at least one of the factors in section 8 exists and is related to their relevant service, then they are entitled to have the condition accepted as service-related on the balance of probabilities. This is not a guarantee of acceptance of the claim overall (other eligibility criteria may apply), but it establishes the causal link. The duty on the decision-maker is to apply the factors exactly as stated; they cannot accept a causal connection based on other mechanisms unless those mechanisms are covered by another applicable SoP (section 10). The decision-maker must also verify that the factor is related to service: section 9(1) requires that the factor must be related to the relevant service rendered by the person. Section 9(2) further provides that factors in subsections 8(10) to (19) apply only to material contribution to or aggravation of knee bursitis where the condition was suffered or contracted before or during (but did not arise out of) the person's relevant service. This imposes a temporal and causal distinction between onset and aggravation claims. For onset, the factor must cause the condition to arise during service. For aggravation, the condition must have pre-existed or been contracted during service but not arisen out of it, and the factor must materially contribute to worsening. The claimant does not have a duty to do anything, but to succeed they must present evidence satisfying the existence of a factor. The SoP also gives the Repatriation Medical Authority the power to determine factors (section 3), and the instrument is binding on the decision-maker. Claimants have the right to seek review of adverse decisions through the Veterans' Review Board and the AAT, where this SoP will be applied. The feed-in provision (section 10) creates a duty to apply other SoPs if a factor refers to another injury or disease covered by another SoP. For example, if a factor mentions having a disease from the specified list (such as rheumatoid arthritis), and there is a SoP for rheumatoid arthritis, that SoP will apply to determine whether the rheumatoid arthritis is service related for the purpose of this SoP.

This instrument itself does not create any penalties. It is not a penal or regulatory offence statute. It is an evidentiary and standards instrument. However, non-compliance with its requirements by a decision-maker (such as a delegate of the Repatriation Commission) can be enforced through the review mechanisms. If a decision is made that does not properly apply the SoP, the claimant can seek merits review at the Veterans' Review Board and then the AAT. The AAT has the power to set aside the decision and substitute a correct one applying the SoP. Further judicial review is available in the Federal Court on questions of law. Incorrect application of the SoP could lead to wrongful denial of benefits, but there is no penalty on the decision-maker personally. For claimants, penalties may apply under the VEA for making false or misleading statements in connection with a claim, which would be relevant if a claimant fabricates evidence about the factors (e.g., falsely claiming to have run 60 km per week). The Criminal Code also contains general offences for providing false information to a Commonwealth entity. The enforcement of the SoP's substance is thus indirect: it is enforced through the administrative and judicial review process, not through a penalty provision in the SoP. The SoP is made under s196B(3) of the VEA, and the Repatriation Medical Authority itself has no enforcement role; its function is to determine the SoP based on sound medical-scientific evidence. Non-compliance by the Authority in making the SoP (e.g., failure to consider the evidence) could theoretically be challenged by judicial review, but the instrument would be valid until set aside.

This SoP is made under the VEA, specifically section 196B(3). It operates within the broader legislative framework of that Act and the MRCA. Section 4 states it applies to claims to which section 120B of the VEA or section 339 of the MRCA applies. Section 120B of the VEA provides that the standard of proof for certain claims (generally those lodged on or after 1 June 1994) is to be determined in accordance with Statements of Principles determined by the Repatriation Medical Authority. Section 339 of the MRCA does similar work for MRCA claims. This means the SoP displaces any common law or other statutory causation test; the decision-maker must apply the factors set out here. Section 10 of the SoP directly addresses interaction with other SoPs: if a factor refers to an injury or disease for which a SoP has been determined under s196B(3) of the VEA, then the factors in that other SoP apply according to its terms as in force from time to time. For example, factor (9) and (18) refer to having a disease from the specified list of diseases, which includes rheumatoid arthritis, gout, sarcoidosis, etc. If a claimant has rheumatoid arthritis, there is likely a separate SoP for rheumatoid arthritis. The decision-maker must apply that SoP to determine whether the rheumatoid arthritis is service related, and then that disease can be used as a factor for knee bursitis. This creates a cascading reliance on other SoPs. The SoP also interacts with the definition of 'relevant service' in Schedule 1, which ties back to definitions in the VEA and MRCA. The instrument does not affect the ability of a claimant to rely on operational service, which is governed by a different standard (reasonable satisfaction under s120(1) or (3) of the VEA) and potentially a separate SoP for balance of probabilities is not needed for operational service - but note that for operational service the standard is higher, not lower. The SoP also does not apply to claims under the Safety, Rehabilitation and Compensation Act 1988 (SRCA) unless cross-referenced. It is specific to military compensation schemes.

The instrument is titled Statement of Principles concerning knee bursitis (Balance of Probabilities) (No. 66 of 2018). It was made on 22 June 2018 and commenced on 23 July 2018. The instrument itself does not recite any amendment history. It is a standalone instrument, not an amendment to an earlier instrument. Typically, the Repatriation Medical Authority issues new SoPs periodically, and a new SoP revokes and replaces any previous SoP on the same condition. However, this instrument does not explicitly state that it revokes an earlier SoP. The Revocation provision might be in the covering instrument or implied by operation of law. Based on the text, there is no statement of revocation. The instrument is current as at the date of this analysis, but because SoPs are regularly reviewed, one should check the Federal Register of Legislation for subsequent amendments or revocation. The Authority may have issued later SoPs with a higher number (e.g., No. 123 of 2023) that supersede this one. The instrument number (No. 66 of 2018) suggests it was one of many SoPs made that year. The note in section 6(3) about ICD-10-AM Tenth Edition 2017 dates the medical coding basis. Amendments to the SoP would typically be made by a later instrument. There is no amendment history within the instrument itself.

The instrument does not cite any litigation or case law. However, Statements of Principles under the VEA have been the subject of significant litigation in the Federal Court and High Court. Key cases such as Repatriation Commission v Hill (2002) 69 ALD 581 and Repatriation Commission v Deledio (1998) 83 FCR 82 established the framework for the application of SoPs. Under Deledio, the decision-maker must first determine if a SoP exists; if it does, the claim must be assessed against the SoP. If the SoP does not cover the claimed factor, the claim fails. SoPs have been challenged on grounds including that the Authority failed to consider relevant medical evidence. Specifically, knee bursitis may have been litigated in individual AAT decisions, but there is no publicly reported case specifically concerning this SoP as at the date of this instrument. Practitioners should be aware that the correct characterisation of the condition is critical; if a claimant's condition does not meet the definition (e.g., it is a Baker's cyst or another knee pathology), the SoP does not apply. There may be litigation on whether a particular activity constitutes 'working whilst kneeling' within the meaning of factor (2) and (11), e.g., whether training on a naval vessel counts as working. The note in the instrument gives examples: 'pressing the anterior knee against a hard vertical surface include working whilst standing against a guard rail on a rolling and pitching ship.' This suggests the Authority anticipated ambiguity and provided guidance, but it does not have the force of law.

Several subtleties can trap unwary claimants and advocates. First, the definition of knee bursitis in subsection 6(2) excludes popliteal (Baker) cyst. So if a claimant presents with a cyst behind the knee, this SoP does not apply at all, even if the cyst is inflamed. Second, the factors are highly subtype-specific. A claimant must first obtain a precise diagnosis of which bursa is affected. Factor (1) applies only to knee bursitis other than prepatellar and superficial infrapatellar. So if the diagnosis is prepatellar bursitis and the claimant was running 60 km per week, factor (1) cannot be used; they must use factor (2) for kneeling. But factor (2) requires working whilst kneeling or pressing the anterior knee, not running. So a recreational runner with prepatellar bursitis may have no available factor unless they can show trauma or surgery. Third, the thresholds are quantitative and strict: for running, average of at least 60 kilometres per week for four weeks. A log must show the average over that period, not just total. For kneeling/crawling, cumulative 60 hours within two months. This requires careful time recording. Fourth, the trauma factor (4) and (13) includes 'needle aspiration of the affected knee bursa' as an example of trauma, but that seems circular: if the aspiration was to treat bursitis, it would likely be after onset, not before. The factor requires trauma in the 30 days before onset. So a medical procedure that caused bursitis would be rare. Fifth, factor (19) 'inability to obtain appropriate clinical management' is a worsening factor only, and it must be related to service. This is a potential catch-all but is limited to worsening. Sixth, the relationship to service requirement in section 9 is two-layered: the factor must be related to service, and for aggravation factors the condition must have been contracted before or during (but not arising out of) service. This means a pre-existing condition that arose out of civilian life cannot be aggravated by service if the aggravation factor is from s8(10)-(18). But if the factor is from s8(1)-(9) (onset), the condition must have arisen during service. So a veteran with pre-existing bursitis from civilian life cannot rely on onset factors; only worsening factors apply, but those still require the worsening factor to be related to service. Seventh, the definition of 'relevant service' excludes operational service, hazardous service, and British nuclear test defence service. A person with operational service cannot use this SoP; they rely on the reasonable satisfaction standard under s120(1) or (3) of the VEA. Eighth, the specified list of diseases includes gout, pseudogout, and crystal-induced arthropathy; those conditions themselves may have their own SoPs which must be applied. Ninth, for septic knee bursitis, the claimant must be in an immunocompromised state as specified, which has a narrow list (HIV, immunosuppressive drugs, malignancy, chronic renal failure, severe malnutrition, transplantation). A diabetic patient not on immunosuppressants may not qualify. Tenth, the feeding rule in section 10 means that if a factor refers to a disease (e.g., rheumatoid arthritis), and there is a SoP for that disease, that SoP must be applied as in force from time to time. This can create a moving target if the other SoP is amended after the claim is lodged. Finally, note that the factor thresholds are based on the balance of probabilities standard, so the claimant does not need to prove the factor beyond reasonable doubt, but they must prove it exists on the civil standard.

For a claimant or their advocate, compliance means building a claim that satisfies the requirements of this SoP. The first step is ensuring a correct diagnosis: obtain a medical report that specifies the type of bursitis, confirms it is not a Baker's cyst, and provides the date of clinical onset or worsening. The report should also state the ICD-10-AM code if possible, but the definition governs. Second, identify which factors are potentially applicable based on the subtype and the person's service activities. Gather contemporaneous evidence: service records, work diaries, training logs, medical records. For the running factor, a running diary or GPS watch data showing weekly distances over the relevant period is essential. For kneeling/crawling, service occupation records, maintenance logs, or witness statements about time spent in confined spaces. For trauma, medical records of cuts, abrasions, or procedures. For surgery, hospital records. Third, establish the temporal linkage: the factor must occur within the specified window (30 days, 2 months, 4 weeks) before onset or worsening. Use a timeline. For aggravation claims, obtain evidence that the bursitis pre-existed service (e.g., civilian medical records) and that service activities caused material worsening. Fourth, demonstrate that the factor relates to service: the running must have been done in the course of service duties (e.g., a recruit being required to run as part of training, not recreational jogging on leave). The kneeling factor: 'working whilst kneeling' implies the activity was part of the person's duties, not voluntary. The trauma factor: if it occurred on a sports field during off-duty hours, it may not relate to service unless service required the sport. Fifth, check if any factor refers to another disease (e.g., gout) and ensure that disease itself is service related under its own SoP. Sixth, for death claims, establish that the terminal event was contributed to by knee bursitis. Seventh, maintain awareness of the 'relevant service' limitation: if the person rendered operational service, this SoP may not apply, and the claim should be framed under the reasonable satisfaction standard. Eighth, keep copies of all evidence and note that the SoP is subject to change - check the current version. Ninth, if the claim is denied, the reasons must be scrutinised to see if the decision-maker correctly applied the subtype restrictions and temporal windows. Seek review if the factor was misconstrued. Finally, medical specialists should be briefed on the exact definitions so their reports address the onset/worsening dates and the specific factor thresholds, not general causation language.