Statement of Principles concerning otitis media (Reasonable Hypothesis) (No. 62 of 2022)

The primary affected persons are veterans, members of Peacekeeping Forces, and members of the Forces under the VEA, as well as members under the MRCA, who have rendered relevant service (operational, peacekeeping, hazardous, British nuclear test defence, warlike, or non-warlike service). Their dependants are affected indirectly through death claims, as the SoP covers death from otitis media where otitis media contributed to a terminal event. The instrument also affects medical practitioners who must provide evidence in support of claims: they need to be aware of the specific definitions and timeframes in the factors. For example, a general practitioner diagnosing otitis media must note whether the patient had an upper respiratory tract infection within the previous 28 days, or had swimming or diving within 7 days, to satisfy the relevant factor. The Department of Veterans' Affairs (DVA) decision-makers and delegates are directly bound by the SoP: they cannot develop the case beyond the listed factors; if a factor is not present on the evidence, the claim must be refused regardless of other possible medical links. Legal representatives and advocates assisting claimants must understand the precise wording of each factor, including the notes and definitions, to frame evidence correctly. The Repatriation Medical Authority itself is also affected in that it must review the SoP periodically and determine whether there is still sound medical-scientific evidence to support each factor. The instrument repeals the 2014 SoP, so all claims decided after 25 July 2022 must be assessed under the new version. The effect on private enterprise is indirect: private medical specialists may see increased demand for reports that explicitly address each factor, particularly for Eustachian tube dysfunction assessments and documentation of upper respiratory infections. The compliance burden falls on claimants who must prove not just that they have otitis media but that a specific factor existed within a narrow timeframe and that the factor is related to service. This can increase administrative costs and delay claim resolution.

The instrument does not create duties in the ordinary sense; rather, it defines the legal pathway for a successful claim. A claimant has the right to have their claim assessed by reference to these factors if they are diagnosed with otitis media and have relevant service. The key duty on the claimant is to provide evidence that at least one of the factors in section 9 existed and is related to relevant service. The duty lies on the decision-maker to apply the SoP correctly: if a factor is satisfied, the decision-maker must accept that a reasonable hypothesis is raised, and then proceed to consider whether the hypothesis is disproved beyond reasonable doubt. The instrument imposes a right to rely on factor 31, "inability to obtain appropriate clinical management for otitis media", which can be used if the person's condition worsened because they could not get proper medical care while serving. This factor may apply even if no other factor is present, provided the inability to obtain clinical management is related to service. Subsection 10(2) imposes a limitation on the worsening factors: they only apply where the otitis media was contracted before or during (but did not arise out of) relevant service. This means that a person who developed otitis media during service for the first time cannot use the worsening factors for that same episode; only the onset factors apply. However, if the condition pre-existed service, the worsening factors can be used to claim aggravation. The instrument also incorporates other SoPs by reference in section 11: if a factor refers to an injury or disease for which another SoP exists, the factors from that other SoP apply. For example, factor 13 refers to ANCA-associated vasculitis; if a claimant has that condition, they must also satisfy the relevant factor from the SoP concerning vasculitis. This layers multiple causation requirements. The instrument gives no substantive rights beyond the claim process; it does not guarantee compensation but rather guides the causation analysis. The RMA has a duty under section 8 to base the SoP on sound medical-scientific evidence, but that duty is exercised at the rule-making stage, not at the claim level.

The instrument itself does not impose penalties or enforcement mechanisms. It is a subsidiary legislative instrument under the VEA, and penalties arise under the primary legislation for fraud or false statements. If a claimant provides false or misleading information to satisfy a factor, they may face prosecution under the Criminal Code or recovery of overpayments under the VEA or MRCA. The enforcement mechanism is the claim assessment process: if the evidence does not satisfy any factor, the claim is simply refused. There is no fine or sanction for failing to have otitis media; the instrument is purely about entitlement. However, the SoP has a coercive effect on decision-makers: once a factor is met, they cannot refuse the claim on the basis that the factor is not medically plausible, unless they can prove the hypothesis is beyond reasonable doubt. This places the evidentiary burden on the department to disprove the connection. Practically, the instrument is enforced through the Administrative Appeals Tribunal (AAT) and the Federal Court, where a decision based on the SoP can be reviewed. If a decision-maker misapplies the SoP, the claimant can seek review, potentially with costs. There is also a potential indirect penalty for the RMA: if the SoP is found by a court to be invalid because it was not based on sound medical-scientific evidence, it could be set aside, though this is rare. The instrument does not create any private right of action or civil penalty regime.

This SoP is made under subsection 196B(2) of the VEA, which is the provision for determining a SoP where the Repatriation Medical Authority is satisfied that there is sound medical-scientific evidence that the injury or disease can be related to relevant service. It applies to claims under section 120A of the VEA and section 338 of the MRCA, which set the "reasonable hypothesis" standard of proof. For claims that fall under the "balance of probabilities" standard (e.g., under the Safety, Rehabilitation and Compensation Act 1988 for civilian employees), this SoP does not directly apply, though it may be used as persuasive evidence. The instrument interacts directly with other SoPs via section 11: if a factor refers to a condition that has its own SoP, the factors from that SoP must also be satisfied. For example, factor 14 refers to HIV infection; the SoP concerning HIV may impose additional requirements such as a specific timeframe or mode of transmission. This creates a layered causation requirement that can complicate claims. The definition of otitis media excludes cholesteatoma, which is covered by a separate SoP. The instrument refers to ICD-10-AM codes H65, H66, H67 but clarifies that the SoP's meaning of otitis media may be narrower than those codes; clinicians should not rely solely on the code. The instrument defines "terminal event" by listing five specific causes of death; this interacts with compensation provisions for death under the VEA and MRCA, allowing death benefits if otitis media contributed to one of the listed terminal events. The SoP also interacts with the definition of "relevant service" in the VEA and MRCA, which determines eligibility for different compensation schemes. The repeal of the 2014 SoP means that any claim pending at the commencement date of 25 July 2022 should be assessed under the new instrument, unless transitional provisions in the primary legislation preserve the old version. The instrument does not override state workers' compensation laws, but veterans are generally excluded from state schemes for service-related conditions.

This instrument, Statement of Principles concerning otitis media (Reasonable Hypothesis) (No. 62 of 2022), was made on 24 June 2022 and commenced on 25 July 2022. It repeals the earlier Statement of Principles concerning otitis media No. 51 of 2014 (F2014L00483), which was made under subsections 196B(2) and (8) of the VEA. The 2014 version had been in force for approximately eight years. The key change is the introduction of new factors and updated medical definitions. Comparing the two instruments (though the 2014 text is not provided), the new SoP includes factors not present in the previous version, such as factor 10 (gastro-oesophageal reflux disease), factor 12 (ascariasis or myiasis), factor 13 (ANCA-associated vasculitis), factor 14 (HIV infection), and factor 15 (immunosuppressive drugs for organ or tissue transplantation). The new SoP also explicitly defines "otitis media" to exclude cholesteatoma and isolated perforation of the tympanic membrane, which may have been covered in the previous version. The notes accompanying each factor are more detailed, providing examples and clinical signs. The instrument also updates the definition of "relevant service" to cover non-warlike service under the MRCA, reflecting legislative changes since 2014. The RMA periodically reviews SoPs to incorporate new medical evidence; the 2022 version likely reflects updated understanding of risk factors for otitis media, particularly immune-compromising conditions and specific infections. The repeal provision is in section 4.

The source does not cite any specific litigation. However, SoPs in general are frequently contested in the AAT and Federal Court. Claimants may challenge the validity of a particular factor if they argue it is not based on sound medical-scientific evidence. For example, a claimant might argue that factor 10 (gastro-oesophageal reflux disease) lacks a plausible causal mechanism for otitis media, or that the timeframe of 7 days for Eustachian tube obstruction is arbitrary. In past cases, the AAT has closely scrutinised the wording of factors, particularly the time limits, and the RMA must be prepared to defend the medical basis. The notes in the instrument (e.g., the note to factor 2 listing symptoms) may be used in litigation to interpret the factor. The provision in section 11 incorporating other SoPs can lead to complex litigation where multiple SoPs must be satisfied. Claimants may also argue that factor 31 (inability to obtain appropriate clinical management) is too vague and should be given a broad interpretation. While the instrument is designed to reduce litigation by providing a clear checklist, it can also generate disputes over whether a particular fact pattern falls within a factor. The AAT and Federal Court have held that SoPs are binding on decision-makers and must be applied strictly; they cannot be supplemented by alternative medical opinions. The repeal of the 2014 SoP may also generate transitional litigation over which version applies to claims lodged before the commencement date but not yet decided.

Several traps in this instrument can trip up claimants and their advisers. First, the definition of otitis media in subsection 7(2) expressly excludes cholesteatoma and isolated perforation of the tympanic membrane. A claimant with chronic suppurative otitis media with cholesteatoma cannot rely on this SoP; they must look to a separate SoP for cholesteatoma. Second, the timeframes are strict: an upper respiratory tract infection must be within 28 days before clinical onset (factor 1) or before clinical worsening (factor 16). The Eustachian tube obstruction, allergic rhinitis, otitic barotrauma, and swimming/diving factors all require a 7-day window. Missing the timeframe by even a day can defeat the factor, unless the claimant can rely on another factor. Third, factor 11 (swimming, diving or water-skiing) applies only where those activities allow water to enter the oropharynx. Normal swimming without water entering the oropharynx may not suffice; the claimant must show water entered the back of the throat. Fourth, factor 31 "inability to obtain appropriate clinical management" is a catch-all but is often difficult to prove: the claimant must show that, but for the inability to get treatment while on service, the otitis media would not have worsened or would have improved. This can involve complex counterfactual evidence. Fifth, the clinical worsening factors (16-31) only apply if the otitis media was suffered or contracted before or during (but did not arise out of) relevant service. If a person developed otitis media for the first time during service, they cannot claim worsening; they must rely on the onset factors. Conversely, if the condition pre-existed service, they cannot use onset factors; only worsening factors apply. Sixth, the notes to factors contain examples and interpretations that may be treated as binding in practice, even though they are only explanatory. For instance, the note to factor 2 states that obstruction of the Eustachian tube usually involves symptoms of dysfunction; a claimant with no such symptoms may struggle to satisfy the factor even if there is anatomical obstruction. Seventh, the incorporation of other SoPs via section 11 can create a cascade of requirements: if the factor refers to HIV, the claimant must also meet the HIV SoP, which may have its own timeframe and service connection requirements.

For a claimant seeking to satisfy this SoP, the first step is to obtain a definitive diagnosis of otitis media from a qualified medical practitioner, ensuring that the diagnosis does not fall into the exclusions (cholesteatoma or isolated perforation). The claimant must then identify which of the 31 factors may apply based on their medical history and service circumstances. For each potential factor, gather contemporaneous medical records or credible lay evidence showing the factor existed within the specified timeframe before clinical onset or worsening. For example, factor 1 requires evidence of an upper respiratory tract infection within 28 days before onset: the claimant should provide a GP record, hospital admission, or prescription for that infection. Factor 2 (Eustachian tube obstruction) requires evidence within 7 days, such as audiometry showing negative middle ear pressure or a doctor's note of symptoms like aural fullness. If the claimant cannot recall exact dates, estimates may be accepted if supported by evidence. The factor must be related to relevant service: for operational service, this is presumed unless disproved; for other service, the claimant must show a causal connection, e.g., the upper respiratory infection was acquired during a training exercise in barracks, or the inability to obtain clinical management was due to remote posting. For worsening factors, the claimant must also show that the otitis media pre-existed or was contracted during service but not arising out of it. Legal advisers should map each factor to the service history and prepare a written submission explaining how the factor is met. Medical reports should explicitly address the factor wording, not just general causation. For death claims, the claimant must show that otitis media contributed to a terminal event such as pneumonia, and that the terminal event was the proximate or ultimate cause of death. The decision-maker must be given all relevant evidence; if the factor is satisfied, the claim will succeed unless the department disproves the hypothesis beyond reasonable doubt. Compliance also involves keeping abreast of any amendments to the SoP or related SoPs; because the instrument incorporates other SoPs by reference, changes to those SoPs automatically apply. The RMA publishes notices of new SoPs on the Federal Register of Legislation; practitioners should check regularly.