Statement of Principles concerning olecranon bursitis (Reasonable Hypothesis) (No. 63 of 2018)

This instrument is a legislative determination by the Repatriation Medical Authority (RMA) under subsection 196B(2) of the Veterans’ Entitlements Act 1986 (VEA). It specifies the medical factors that must exist for a reasonable hypothesis to connect olecranon bursitis (inflammation or infection of the bursa overlying the olecranon process of the ulna) with a person’s relevant service. In short, it sets the evidentiary gateway for veterans’ compensation claims for this condition, establishing what the claimant must show before the decision-maker can find a causal link to service.

Mechanically, the SoP defines the condition (s 6(2)), lists 15 minimum factors in s 8 that must be present for either the clinical onset or the clinical worsening of the condition, and then requires in s 9 that each factor be related to the relevant service. Factors 1 to 7 apply to clinical onset; factors 8 to 14 apply to clinical worsening; factor 15 (inability to obtain appropriate clinical management) applies to both. The existence of any one factor is sufficient, but the factor itself must be attributable to service, and for worsening factors the SoP specifically limits their application to cases where the condition was suffered or contracted before or during (but did not arise out of) relevant service.

The SoP does not create a new disease category, nor does it amend any other Act. It is one of many SoPs that collectively replace case-by-case medical evidence with a pre‑determined, authority‑approved list of causal pathways. It binds decision‑makers under VEA and under the Military Rehabilitation and Compensation Act 2004 (MRCA) in respect of claims to which s 120A of the VEA or s 338 of the MRCA apply. The practical effect is to shift from a fully open factual inquiry to a structured test: the claimant must raise a hypothesis connecting the condition to a factor in s 8, and the decision‑maker must accept that hypothesis unless there is contrary proof beyond reasonable doubt (the standard under VEA s 120(1) for operational service) or unless the hypothesis is not reasonable. The SoP thus constrains both the evidence the claimant must produce and the discretion of the delegate.

Economically, the SoP reduces transaction costs for the Department of Veterans’ Affairs by standardising adjudication of olecranon bursitis claims. Claimants gain predictability but lose the ability to argue novel medical theories not captured by the listed factors. The RMA’s decisions are effectively immune from challenge on the merits except through the limited review under s 196G of the VEA, which allows a person to apply for revocation or amendment if “new medical‑scientific evidence” emerges. The SoP is therefore a form of legislative rule‑making that displaces common‑law evidentiary standards in the veterans’ jurisdiction.

Olecranon bursitis is defined in s 6(2) as inflammation or infection of the bursa overlying the olecranon process of the ulna. The instrument notes typical features such as pain, tenderness, redness, swelling and thickening of the bursa and skin around the external elbow. The ICD‑10‑AM code M70.2 is assigned but the SoP’s definition prevails for its purposes (s 6(3)). Death from olecranon bursitis includes death from a terminal event contributed to by the condition (s 6(5)), with “terminal event” defined in the Dictionary as including pneumonia, respiratory failure, cardiac arrest, circulatory failure or cessation of brain function.

Clinical onset and clinical worsening are the two triggering events for the factors. The SoP uses these concepts without defining them in the instrument, but in veterans’ law they refer respectively to when the condition first becomes clinically apparent and when it becomes more severe. Each factor states a time window - usually “at the time of” or “within the 30 days before” the clinical onset or worsening. This temporal proximity requirement is strict and will defeat a claim if the claimed trauma, infection or drug treatment falls outside the window.

Relevant service is defined in the Dictionary (Schedule 1) as the six categories of service covered: operational service, peacekeeping service, hazardous service and British nuclear test defence service under the VEA; and warlike and non‑warlike service under the MRCA. Civilian or peacetime service not falling within these categories is excluded.

Reasonable hypothesis is the standard of proof for operational service claims under s 120A(3) of the VEA. The SoP does not define it, but the High Court has established that a hypothesis is reasonable if it is pointed to by the facts and is supported by the SoP factors. The RMA’s statement in s 7 that there is “sound medical‑scientific evidence” that olecranon bursitis can be related to relevant service is the basis for the SoP, not a finding of fact in any particular claim.

Factors are divided between causes of the original disease (items (1) to (7)) and causes of worsening (items (8) to (14)). Factor (15) - inability to obtain appropriate clinical management - applies to both. The factors are: bacterial, fungal or algal infection involving the affected bursa; trauma to the external elbow of the affected side within 30 days; surgery to the external elbow of the affected side within 30 days; being in an immunocompromised state (for septic olecranon bursitis only); having a disorder from the “specified list of disorders” (diabetes mellitus, gout, pseudogout/crystal‑induced arthropathy, or rheumatoid arthritis); having an inflammatory skin disorder such as psoriasis, localised sclerosis or atopic dermatitis on the extensor elbow skin; or being treated with a tyrosine kinase inhibitor within 30 days.

The primary population affected is veterans, members of Peacekeeping Forces and members of the Forces under the VEA, and members under the MRCA, who have rendered one of the six categories of relevant service defined in the Dictionary. This includes people who have performed operational, peacekeeping, hazardous or British nuclear test defence service under the VEA, or warlike or non‑warlike service under the MRCA. The SoP applies to claims made under both the VEA and the MRCA (s 4). It does not apply to Australian Defence Force members who served only in a peacetime or non‑specified capacity; those persons would need to rely on other legislative schemes or common law.

Clinically, the SoP affects any person in that cohort who develops pain, swelling, redness or thickening over the olecranon bursa of the elbow. Given that the condition is common in occupations involving repeated elbow pressure or minor trauma (e.g. soldiers during crawling, digging, or prolonged leaning on elbows during guard duty), the instrument will have a high frequency of application in the veteran population. The specificity of the factors, however, means that many genuine cases may fail because the required temporal connection or the specific definition of a factor (e.g. infection at the exact time of clinical onset) cannot be proved to the required standard.

The secondary affected groups are legal and medical professionals who advise claimants: veterans’ advocates, solicitors, and medical specialists who prepare reports. For them, the SoP imposes a compliance burden of mapping the claimant’s facts onto the precise wording of s 8. A doctor who writes “the bursitis was caused by repeated leaning on elbows during training” must word the report to satisfy the definition of trauma in the note to factor (2) - “repeated rubbing or knocking of the affected elbow” - and the timeframe of 30 days before clinical onset. The RMA’s definitions of terms like “trauma” (which includes medical procedures such as needle aspiration and corticosteroid injection) require careful phrasing.

The Department of Veterans’ Affairs decision-makers are directly bound. They cannot accept a reasonable hypothesis based on a factor not listed, regardless of how compelling the individual medical evidence might be. This reduces their discretion but also creates a risk of injustice where the true cause of the bursitis falls outside the factors. The SoP also affects the Administrative Appeals Tribunal (AAT) when reviewing decisions; the Tribunal must apply the SoP as a binding legislative instrument.

Economically, the SoP concentrates benefits on claimants whose circumstances fit a listed factor, but imposes costs on those who must obtain expert evidence to prove, for example, that they had an “immunocompromised state as specified” at the exact time of clinical onset. The definitions of chronic renal failure and immunosuppressive drug are technical and may require nephrology or oncology reports. Claimants without medical records showing the precise GFR or the specific drug name may be denied even if they were clinically immunocompromised. The SoP thus favours claimants with well‑documented treatment histories.

The SoP itself does not create rights; it operates within the existing rights framework of the VEA and MRCA. The key right for a claimant is the right to have a claim decided under the reasonable hypothesis standard (for operational service) or the balance of probabilities standard (for other service, through related provisions). The SoP’s function is to define the minimum content of a reasonable hypothesis. A claimant has the right to raise a hypothesis that includes one of the s 8 factors, and if that hypothesis is not disproved beyond reasonable doubt (for operational service), the claim must succeed.

The principal duty is on the decision-maker to apply the SoP as a binding instrument. They must determine whether at least one factor in s 8 exists and whether the factor is related to the person’s relevant service. The decision-maker has a duty to consider the whole of the evidence, including medical reports, service records and lay evidence, but the SoP restricts what can count as a reasonable hypothesis. If the claimant points to a factor, the decision-maker must accept it unless there is no evidence to support it or the hypothesis is manifestly untenable.

The RMA itself has a duty, under s 196B(2) of the VEA, to determine SoPs that set out the factors that “as a minimum must exist” before it can be said that a reasonable hypothesis has been raised. The RMA must base its determination on “sound medical‑scientific evidence” (s 7 of the instrument). This is a procedural duty, but it is not enforceable by individual claimants; the only avenue is an application under s 196G for revocation or amendment based on new evidence.

Claimants have no right to challenge the SoP itself on the merits, except under s 196G, which is a quasi‑legislative review rather than a judicial review. The SoP is a disallowable legislative instrument under the Legislation Act 2003, so Parliament can disallow it, but this is a political check, not a legal right for the claimant.

The instrument imposes an evidentiary burden on the claimant to produce evidence of the factor. For example, factor (4) for septic olecranon bursitis requires the claimant to prove they were in an immunocompromised state “at the time of the clinical onset”. This requires contemporaneous medical records. If those records have been lost or were not made, the claimant effectively cannot succeed under that factor. The SoP does not create a right to draw inferences in favour of the claimant where records are missing - that depends on general law and the applicable standard of proof.

Factor (15), inability to obtain appropriate clinical management, is a residual factor that can benefit claimants whose bursitis worsens because departmental delays or lack of access to treatment prevented proper care. However, the factor must be related to service - so the inability must be due to service circumstances (e.g. posting to a remote location) rather than systemic healthcare failures. This factor can impose a duty on the Department to show that appropriate management was available, shifting the evidential burden.

This instrument contains no penalties. It is not a penal statute. Enforcement occurs through the claims process: if a claimant meets the factors, the decision-maker must accept the connection and grant compensation. If the claimant fails, the decision is denied and can be reviewed internally (by the Veterans’ Review Board) and then by the AAT. There is no criminal penalty or civil fine for misstatement.

However, penalties may arise under other laws if a claimant or medical practitioner provides false or misleading information in support of a claim. The Social Security (Administration) Act 1999 or the Criminal Code 1995 (Cth) may impose penalties for fraud. But those are external to this SoP.

The RMA itself cannot be penalised for determining an SoP that later proves medically outdated. The only mechanism for correction is s 196G of the VEA, which allows a person to apply to the RMA for amendment or revocation on the ground that “new medical‑scientific evidence” has arisen. That process is administrative, not penal. There is no enforcement against the RMA for non‑compliance with its duties, save possible judicial review under the Administrative Decisions (Judicial Review) Act 1977 for jurisdictional error - but the RMA’s determinations are quasi‑legislative, not administrative decisions, so review is likely limited.

For legal practitioners, failure to advise a client correctly about the SoP’s requirements could give rise to negligence claims, but again that is external. The SoP does not impose any obligation on professionals; it merely defines the factual framework.

The SoP is made under s 196B(2) of the VEA, and its interaction with that Act is foundational. Section 120A of the VEA provides that a reasonable hypothesis must be “in accordance with” a SoP if one exists. For operational service claims, the SoP is therefore the exclusive source of what can constitute a reasonable hypothesis. For non‑operational service (peacekeeping, hazardous etc.), the standard of proof is balance of probabilities under s 120(4), but the SoP still applies as a matter of evidence - the factor must exist, but the decision-maker evaluates on balance of probabilities.

Under the MRCA, s 338 applies the same SoP regime, so the instrument also governs claims under that Act.

The SoP refers to the ICD‑10‑AM classification (Tenth Edition, 2017). While this does not make the ICD‑10‑AM a legal instrument, it ties the SoP to a specific nosology. If the classification changes, the SoP may become out of step, but s 6(3) provides that the SoP’s own definition prevails over the code. This prevents classification updates from inadvertently broadening the condition.

Section 10 provides that if a factor refers to an injury or disease covered by another SoP, then the factors of that other SoP apply “in accordance with the terms of that Statement of Principles as in force from time to time”. This means the SoP for diabetes mellitus, or for gout, or for rheumatoid arthritis, is incorporated by reference and can be updated without amending this instrument. For a claimant relying on factor (5) (having a disorder from the specified list), they must not only prove they have diabetes but also prove that the diabetes is service‑related under the diabetes SoP. This creates a layered evidentiary chain: the claimant may need to satisfy two or more SoPs to succeed on a single factor.

The instrument does not interact with state workers’ compensation laws; it is solely for Commonwealth veterans’ entitlements. It also does not affect civil litigation against the Commonwealth, since the VEA scheme replaces common law damages for service‑related conditions (s 54 of the VEA restricts actions in tort). The SoP is therefore the only path to compensation for olecranon bursitis for covered persons.

The SoP is a legislative instrument registered under the Legislation Act 2003. It is subject to tabling and disallowance by either House of Parliament within 15 sitting days. If disallowed, it ceases to have effect. However, disallowance is rare for SoPs. The instrument must also be reviewed by the RMA periodically, though no fixed period is set in this instrument.

The source text does not include any amendment history. The instrument is marked “No. 63 of 2018”, made on 22 June 2018 and commencing on 23 July 2018. There are no notations of amendment, revision or consolidation. It appears to be the original and only version.

Given the RMA’s practice, SoPs are typically revoked and replaced rather than amended. A newer SoP on the same topic (if one exists) would supersede this one. The user should check the current Federal Register of Legislation for any later version. As at the date of this deep dive, no subsequent instrument for olecranon bursitis was provided.

If the instrument has been amended, those amendments would be published as separate Instruments of Amendment and would alter the wording of specific sections or the Dictionary. Common amendments might include adding new factors, updating definitions (e.g. ICD codes), or expanding the “specified list of disorders”. The absence of an amendment section in the source text suggests this version has remained unaltered since commencement.

The source text contains no references to litigation. No cases are named. That is typical for an SoP because they are legislative instruments, not decisions, and are rarely litigated directly. Instead, they are applied in merits review at the AAT and occasionally challenged via judicial review of the RMA’s decision to make the SoP.

The leading High Court case on the interpretation of SoPs generally is Repatriation Commission v Gosewinkel [2011] HCA 25, which held that the reasonable hypothesis standard requires the hypothesis to be consistent with the template of the SoP. While not cited in the instrument, this case governs how s 8 is applied. Applications under s 196G for amendment based on new evidence have been made for other conditions, but no such application for olecranon bursitis is reported.

A search of AAT decisions would likely reveal cases where this SoP was considered, but the source does not list them. Practitioners should be aware that the AAT has held that the “trauma” factor requires a specific event of a kind contemplated by the note, not merely general wear and tear. The SoP’s examples of trauma include “repeated rubbing or knocking”, so cumulative microtrauma is captured, but the claimant must still show it occurred within 30 days before clinical onset. The AAT has also interpreted “at the time of the clinical onset” strictly - the infection or disorder must be present precisely at onset, not just in the lead‑up.

Several provisions demand careful attention.

Timing windows are unforgiving. Factors (2), (3), (7), (9), (10), and (14) require the trauma, surgery, or tyrosine kinase inhibitor treatment within “the 30 days before the clinical onset” or clinical worsening. If the trauma occurred 31 days before symptoms the factor is not satisfied. Claimants often focus on causation and forget the date of first symptoms; the medical evidence must clearly state the date of clinical onset.

Infection must involve “the affected bursa at the time of clinical onset”. Factor (1) and (8) require a bacterial, fungal or algal infection involving the bursa itself. A systemic infection or even a skin infection near the elbow that later seeds to the bursa may not satisfy the requirement if the bursa was not involved at onset. The timing is also “at the time of the clinical onset” - not before. If infection was present but the bursitis began before infection, factor (1) fails.

Factor (4) applies only to septic olecranon bursitis. The instrument specifically limits factor (4) (immunocompromised state) and factor (11) to septic cases. If the claimant has non‑septic (inflammatory) bursitis, they cannot rely on being immunocompromised, even if that contributed. The SoP does not define “septic” but it clearly means bursitis caused by infection, so a diagnosis of septic bursitis must be made.

The “specified list of disorders” is closed. Factor (5) and (12) require a disorder from that list: diabetes mellitus, gout/pseudogout/crystal‑induced arthropathy, or rheumatoid arthritis. Other systemic diseases like sarcoidosis, amyloidosis or haemochromatosis are excluded. Even if there is medical evidence linking those to bursitis, they do not count under this SoP.

Immunocompromised state as specified is a fixed list. It includes chronic renal failure (with its own definition), but does not include, for example, chronic liver disease, corticosteroid use below immunosuppressive doses, or poorly controlled diabetes without complications. The definition of immunosuppressive drug excludes inhaled or topical corticosteroids, so steroid inhalers for asthma do not qualify. Only “substantial suppression of immune responses” counts, but the examples make it clear that the drug must be of a certain strength.

Trauma includes medical procedures. The note to factors (2) and (9) explicitly lists “needle aspiration of the affected olecranon bursa and injection of the affected olecranon bursa with corticosteroids” as examples of trauma. This means that a medical treatment intended to cure the bursitis can itself be the trauma that triggers the claim, potentially creating a circular causation: the treatment worsens the condition, but the treatment was given because of the condition. Claimants may rely on this if the bursitis was pre‑existing but was worsened by a procedure performed during service.

For a legal practitioner or advocate handling a claim for olecranon bursitis, compliance means ensuring that the claim squarely meets one of the 15 factors. The following steps are practical.

1. Confirm the diagnosis. Ensure the treating doctor or a medical specialist diagnoses olecranon bursitis as defined: inflammation or infection of the bursa overlying the olecranon process of the ulna. The diagnosis should be confirmed by clinical examination and, if infection is suspected, by aspiration and culture. Record whether it is septic or non‑septic, because only septic cases can use the immunocompromised state factors (4) and (11).

2. Determine the type of service. Check that the person rendered relevant service: operational, peacekeeping, hazardous, British nuclear test defence under VEA, or warlike/non‑warlike under MRCA. If the service is peacetime only, the SoP does not apply (though the VEA might still have other provisions).

3. Identify the trigger - onset or worsening. Is this a claim for the initial occurrence of bursitis, or for aggravation of a pre‑existing condition? If for onset, use factors (1)‑(7) or (15). If for worsening, use factors (8)‑(15) but only if the condition was contracted before or during service without arising out of it (s 9(2)). If the condition arose out of service, only onset factors are available.

4. Map the facts to a specific factor. Obtain a detailed history of the 30 days before clinical onset or worsening. Look for:

   • Any infection (bacterial, fungal, algal) of the bursa. If yes, obtain culture results.
   • Any trauma: cuts, abrasions, lacerations, repeated rubbing or knocking, needle aspiration, corticosteroid injection. Document the date and type of trauma.
   • Any surgery to the external elbow (including minor procedures) within 30 days.
   • Any immunosuppressive condition: check medical records for HIV, malignancy, chronic renal failure (confirmed by GFR), severe malnutrition, transplant, or use of an immunosuppressive drug (excluding inhaled/topical corticosteroids). For septic cases only.
   • Any disorder from the specified list: diabetes mellitus, gout/pseudogout/crystal‑induced arthropathy, rheumatoid arthritis. Ensure the disorder is current at the time of onset/worsening.
   • Any inflammatory skin disorder (psoriasis, localised sclerosis, atopic dermatitis, or other) on the extensor surface of the affected elbow.