Statement of Principles concerning plantar fasciitis (Reasonable Hypothesis) (No. 82 of 2023)

The primary affected groups are veterans, members of the Peacekeeping Forces, and members of the Forces under the VEA, as well as members under the MRCA who have rendered “relevant service” as defined in Schedule 1. That definition covers operational service, peacekeeping service, hazardous service, British nuclear test defence service under the VEA, and warlike or non‑warlike service under the MRCA. It does not include peacetime “defence service” under Part VII of the VEA, which is subject to a different standard of proof (reasonable satisfaction) and a separate SOP framework. Consequently, members who serve in a peacetime capacity and develop plantar fasciitis cannot rely on this instrument to raise a reasonable hypothesis; they must instead meet the higher standard. The instrument also affects dependants claiming compensation following the death of a service member from plantar fasciitis, provided the member’s death was contributed to by the condition or a terminal event. The RMA itself is not a party to claims but shapes the legal landscape. Decision-makers in the DVA and review tribunals are directly bound: they must apply the factors in section 9 when assessing whether a reasonable hypothesis exists. Medical practitioners are indirectly affected when providing opinions on clinical onset, MET levels, BMI, and biomechanical abnormalities. Claimant advocates and lawyers must learn the new factor set and ensure their evidence aligns with the precise definitions. The instrument also affects other service personnel with past claims that were rejected under the 2015 SOP: they may seek to reopen claims if the new factors are more favourable, but the application clause (section 5) ties the SOP to claims under sections 120A or 338, so reopening depends on the law of res judicata and the date the new SOP applies. The economic impact is on the public purse via compensation and medical expenses for accepted claims, but conversely on veterans whose claims fail due to inability to satisfy a factor, limiting their access to support.

The SOP does not impose duties on individuals; it establishes a legal test that must be satisfied for a claim to succeed. The right it confers is the right to have a claim assessed under the reasonable hypothesis standard with reference to these prescribed factors. Claimants have the right to argue that at least one of the eleven factors exists and is related to their service. The RMA’s duty, under subsection 196B(2) of the VEA, is to determine SOPs based on sound medical‑scientific evidence, which it has done. There is no duty on clinicians to report or to calculate METs, but they may be required to provide retrospective assessments. Section 10 imposes an implicit duty on decision-makers to ensure that any factor relied upon must be related to the person’s relevant service. For clinical worsening, subsection 10(2) requires that the factor must materially contribute to or aggravate pre‑existing plantar fasciitis that was suffered before or during (but did not arise out of) relevant service. This means a claimant cannot obtain compensation for a natural progression of a condition that merely coincided with service. The factor regarding “inability to obtain appropriate clinical management” (section 9(11)) is available only for clinical worsening, not onset. That factor is interesting: it creates a right to argue that poor medical care during service contributed to worsening, but only if the claimant can show that such care was not appropriate and that access was limited by service circumstances. The factor is tightly drawn - it is not general failure to treat but “inability” due to service. Overall, the rights are procedural and evidentiary, not substantive entitlements.

This instrument contains no penalties. It is not a regulatory or criminal enforcement tool. The enforcement mechanism is through the claims process: if a claimant cannot satisfy the factors, the claim is refused, and the refusal can be reviewed. There are no fines or sanctions for non‑compliance by claimants. The only potential consequence of misapplication by a decision-maker is a successful appeal, potentially leading to a remittal or substituted decision. The SOP itself can be challenged on jurisdictional grounds (e.g., ultra vires) but the RMA’s determination is given significant deference by courts. The instrument is made under subsection 196B(2), which is a legislative power; a failure to apply the SOP correctly may result in an error of law reviewable on appeal. For practitioners, advising a claimant to rely on a factor that does not exist could waste time and costs, but there is no penalty for advancing an erroneous claim. The enforceability of the SOP lies in its binding nature: decision-makers have no discretion to consider hypotheses outside the factor list. The only exception is if the RMA has not determined a factor for a particular injury or disease - but here the SOP covers the condition itself. Section 11 allows reference to other SOPs when a factor (e.g., systemic arthritic disease) is itself covered by another SOP, ensuring consistency. The practical penalty for a claimant is the loss of potential compensation. There is no compliance burden for the general public; the burden falls solely on the claimant to produce evidence matching the factor thresholds.

The SOP operates under the Veterans’ Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA). It is specifically made under subsection 196B(2) of the VEA, which is the provision authorising the RMA to determine SOPs on the “reasonable hypothesis” standard. Section 5 of the instrument applies it to claims under section 120A of the VEA and section 338 of the MRCA. This means it does not apply to claims under Part VIIC (non‑operational service) or Part VII of the VEA, which rely on the “reasonable satisfaction” standard (section 120(4)). For those claims, a separate SOP made under subsection 196B(3) may apply, or the decision-maker applies common law principles. The SOP explicitly repeals the previous Statement of Principles on plantar fasciitis (No. 51 of 2015), so the old factor set is no longer operative. Section 11 creates an interaction with other SOPs: if a factor in section 9 refers to an injury or disease that is itself covered by another SOP (e.g., systemic arthritic disease), the factor definitions and thresholds from that other SOP apply as in force from time to time. This prevents overlap and ensures consistency across conditions. The definition of “relevant service” aligns with the definitions in sections 6, 7, and 68 of the VEA as well as sections 15 and 16 of the MRCA, so any amendment to those definitions will automatically change the scope of this SOP. The instrument does not interact with state or territory workers’ compensation schemes, but a veteran who has also made a claim under the Safety, Rehabilitation and Compensation Act 1988 (SRCA) cannot use this SOP because the SRCA uses a different standard. The SOP is subject to the Legislation Act 2003 for registration, tabling, and sunsetting. If it is not remade before the sunset date, it will be repealed, and the previous SOP would revive? Possibly not; the RMA would need to determine a new one. The interaction with common law is limited: the SOP binds administrative decision-makers but does not prevent a veteran from suing a third party in negligence, though any compensation received would be offset.

This instrument is a replacement for the earlier Statement of Principles concerning plantar fasciitis No. 51 of 2015, which was also made under subsection 196B(2) of the VEA. The 2015 SOP was registered on the Federal Register of Legislation and was repealed by section 4 of the new instrument. The new SOP was made on 25 August 2023 and commences on 26 September 2023. The RMA typically reviews SOPs periodically based on new medical evidence. The changes from the 2015 version are not detailed in the source, but a comparison would require obtaining the old instrument. Common amendments in RMA practice include adjusting factor thresholds (e.g., the running distance of 30 km per week may have changed), adding or removing factors (e.g., the “inability to obtain appropriate clinical management” factor appears as a new addition, though one cannot be certain without the old text), and refining definitions (e.g., “clinical onset” now explicitly requires persistent symptoms assessed by a registered medical practitioner, which may be a tightening). The definition of “systemic arthritic disease” now includes “other crystal‑induced arthropathy” with a definition in Schedule 1, which may be new. The use of METs and the specific requirement of 5 METs minimum for factors 4 and 5 may have been adjusted. The removal of a factor from the old list would be important, as claimants lose that pathway. The instrument also updates the definitions of “biomechanical abnormality” and “being overweight or obese” (BMI threshold unchanged at 25). The amendment history is significant because it changes the evidentiary burden for claims; claimants who had a case under the 2015 factors may no longer be able to raise a reasonable hypothesis if that factor is no longer present, or may now have a new pathway. The instrument does not provide transitional provisions for claims pending before the commencement date; the application clause (section 5) applies to claims under sections 120A or 338, which means it applies to claims lodged after commencement and also to claims under review that are not finally determined? The AAT would apply the law as in force at the time of its decision, so the new SOP generally applies to all decisions made after 26 September 2023 regardless of claim date.

The source does not mention any litigation history, and the instrument itself is a legislative instrument, not a court decision. However, SOPs are frequently litigated in the Federal Court and the High Court on issues such as whether the RMA properly considered the medical evidence, whether a factor is “sound medical‑scientific evidence”, and whether the RMA correctly applied its statutory power. Notable cases include Repatriation Commission v Gorton (2001) where the High Court discussed the role of SOPs, and Repatriation Commission v Deledio (1998) which set out a four‑step test for applying the reasonable hypothesis standard, including the requirement to identify an SOP factor. The new SOP will likely be cited in future cases where the precise meaning of “clinical onset” or “MET” is disputed. The definition of “clinical onset” requiring persistent symptoms assessed by a registered medical practitioner may be contested: does it require a contemporaneous assessment or can a retrospective opinion suffice? The “inability to obtain appropriate clinical management” factor (section 9(11)) is novel and likely to generate litigation over what constitutes “inability” and “appropriate”. The burden of proof is on the claimant to raise the factor, and the decision-maker must accept the hypothesis if there is some material pointing to the factor - but if the factor definition is ambiguous, courts will interpret it. The footwear factor (section 9(10)) requires “inadequate cushioning” during weight bearing exercise within seven days of onset or worsening; what constitutes inadequate cushioning is not defined, inviting argument. Claimants may also challenge the RMA’s failure to include other plausible factors (e.g., flat feet without a defined biomechanical abnormality). However, the RMA’s decisions are subject to limited review: a court can quash the SOP only if it was made without power or if the RMA failed to consider a mandatory relevant consideration. The instrument’s litigation history is therefore prospective, but the pattern of past SOP challenges suggests that the new plantar fasciitis SOP will be tested on multiple fronts.

Several provisions in the instrument create traps for the unwary. First, the definition of “clinical onset” in Schedule 1 requires that symptoms be “persistently present” as assessed by a “registered medical practitioner” and looks backwards from the date of first medical diagnosis. This can create a timing problem: a claimant may have had symptoms for months before seeking medical attention, but proving persistent presence without contemporaneous records is difficult. If the first diagnosis is delayed, the “clinical onset” date may be pushed back, affecting whether a factor (e.g., trauma within seven days) is met. Second, the BMI threshold of 25 for “being overweight or obese” is a bright line that does not account for variations in muscle mass, age, or ethnicity. A fit, muscular infantry soldier with a BMI of 26 is classified as overweight, potentially triggering that factor, but the factor requires that the claimant be overweight at the time of clinical onset. Conversely, a soldier with a BMI of 24.9 does not satisfy the factor, even if they have substantial body fat. Third, the MET requirement in factors 4 and 5: 5 METs is a specific exertion level. Many common exercises (e.g., walking at 5 km/h) are around 3.5 METs; running at 8 km/h is about 8 METs. But the factor requires the minimum intensity of 5 METs and a minimum duration. Claimants who exercise at a lower intensity but over a longer period will not satisfy the factor. Factor 5 requires an increase of at least 100% in frequency, duration or intensity of weight bearing activity, to a minimum of 5 METs for at least 2 hours per day, within seven days of onset or worsening. That is a narrow window: a gradual increase over weeks will not count. Fourth, factor 6 requires prolonged weight bearing on a hard surface for at least five hours per day, “on more days than not”, for the 6 months before clinical onset. This is a difficult evidentiary burden for someone in a non‑garrison role where records may be lacking. Fifth, the “inability to obtain appropriate clinical management” factor (subsection 9(11)) applies only to clinical worsening, not onset. Even then, the claimant must prove that the inability was due to service circumstances (e.g., being in a remote deployment, shortage of medical personnel) and that appropriate management would have prevented worsening. That is a high bar. Sixth, section 10 requires that the factor be related to the person’s relevant service. A factor occurring during a period of leave or while on a civilian job may not be related. Seventh, the exclusion of plantar fibromatosis from the definition means that a diagnosis that includes plantar fibromatosis may not be covered. Eighth, the instrument applies only to “relevant service” - non‑relevant service does not benefit from this SOP, and claimants with mixed service may need to disentangle. Ninth, factor 10 (inadequate cushioning within seven days) may be difficult to prove without specific evidence of the footwear used and its properties. Tenth, factor 1 requires trauma “to the plantar aspect of the affected foot” - trauma to the heel but not the plantar fascia directly may not qualify.

Compliance here does not refer to avoiding penalties but to successfully navigating the claims process using this SOP. Claimants or their representatives should systematically collect evidence for each of the eleven factors in section 9. Start with a precise medical diagnosis of plantar fasciitis (excluding plantar fibromatosis) and a clear opinion from a registered medical practitioner on the date of clinical onset, being the point when symptoms were persistently present. Obtain a contemporaneous or retrospective assessment of weight, height, and BMI at that time (factor 7). If the claimant was running or jogging, document average weekly mileage over the two months before onset (factor 3: at least 30 km per week). If other repetitive weight bearing exercise occurred, calculate the MET value of the activity (use published compendiums) and ensure it meets at least 5 METs, for a minimum of 4 hours per week over two months (factor 4). For factor 5, if there was a sudden increase in weight bearing activity, document the baseline and the increase (at least 100%) to 5 METs for at least 2 hours per day, within 7 days of onset. For prolonged standing, gather evidence of work duties or service records showing at least 5 hours per day on a hard surface, on more days than not, for the preceding 6 months (factor 6). Biomechanical abnormalities (factor 9) require a medical assessment of overpronation, underpronation, or decreased flexibility. Get such an assessment from a podiatrist or orthopaedic specialist. Systemic arthritic disease (factor 8) requires diagnosis of one of the listed conditions; obtain the relevant specialist report. Trauma (factor 1) requires a specific incident to the plantar foot within 7 days - document the incident with service records. Infection (factor 2) must involve the plantar fascia at the time of onset or worsening - obtain microbiology or clinical notes. For factor 10 (inadequate footwear cushioning), identity the shoes worn during exercise and get an expert opinion or manufacturer data on their cushioning properties. For factor 11 (inability to obtain appropriate clinical management), demonstrate through service records that appropriate care was unavailable (e.g., remote posting, lack of specialist) and that the inability contributed to worsening. Ensure that every factor relied upon is linked to relevant service (section 10). For clinical worsening claims, satisfy the requirement of material contribution to a pre‑existing condition (subsection 10(2)). Prepare a statement of facts that cross‑references the factor language precisely. For decision-makers, apply the factors as a checklist; do not accept broad assertions without specific evidence meeting the defined thresholds. For example, a claim based on “lots of marching” must show that the marching exceeded 5 METs for 4 hours per week over two months. If there is an external SOP that covers a factor’s underlying condition (e.g., gout), refer to that SOP for its definition of clinical worsening (section 11). Keep the definitions from Schedule 1 handy for each term. The compliance burden is on the claimant to raise evidence, not on the department to disprove. The instrument is designed to be applied rigidly; departures risk reversal on review.