Statement of Principles concerning posterior tibialis tendinopathy (Reasonable Hypothesis) (No. 45 of 2021)

The central concept is the “reasonable hypothesis” standard, which is a lower evidentiary threshold than the balance of probabilities. Under the VEA and MRCA, if a SoP is in force, a claim can succeed if the material raises a hypothesis that is reasonable and is consistent with the factors in the SoP. This SoP defines the hypothesis by listing specific factors that must exist. “Relevant service” is defined in the Schedule 1 dictionary to mean operational, peacekeeping, hazardous or British nuclear test defence service under the VEA, or warlike or non-warlike service under the MRCA. That term restricts which veterans and members can apply the SoP. The condition itself is defined in subsection 6(2) as “inflammation or degeneration of the posterior tibialis tendon that produces localised pain or tenderness or rupture of the posterior tibialis tendon.” This is narrower than a general diagnosis of tendinopathy; it excludes asymptomatic tendon changes and requires symptoms or rupture. The instrument uses two timeframes: “clinical onset” for new cases and “clinical worsening” for aggravations. Factors 1 to 7 apply to onset; factors 8 to 14 apply to worsening. Factor 15 (“inability to obtain appropriate clinical management”) applies only to worsening, not onset. The concept of MET (metabolic equivalent of task) is defined as a unit of measurement: 1 MET = 3.5 ml oxygen/kg/min or 1.0 kcal/kg/hour or resting metabolic rate. This technical definition matters because factors 2, 3, 9 and 10 all require a minimum of five METs, which corresponds to moderate to vigorous activity such as brisk walking or jogging. The “specified list of autoimmune diseases” is closed: ankylosing spondylitis, coeliac disease, inflammatory bowel disease, psoriatic arthritis, reactive arthritis, rheumatoid arthritis, and undifferentiated spondyloarthritis. Other autoimmune diseases are not covered. The concept of “terminal event” is defined for death cases: pneumonia, respiratory failure, cardiac arrest, circulatory failure, or cessation of brain function. The SoP does not define “clinical onset” or “clinical worsening”, so those terms must be interpreted by reference to medical practice and case law. Section 8 requires at least one factor to exist; multiple factors are not required but can reinforce the hypothesis.

The primary population affected is current and former members of the Australian Defence Force who have rendered relevant service as defined in the Schedule 1 dictionary. That includes veterans with operational service under the VEA (generally war-like deployments), peacekeeping service, hazardous service (e.g., service on certain ships or in particular locations), British nuclear test defence service, and members under the MRCA with warlike or non-warlike service (which covers most ADF service after 1 July 2004). The SoP also affects the dependants of such persons in death claims, because the instrument covers death from posterior tibialis tendinopathy where the condition contributed to a terminal event. Clinicians who assess veterans’ conditions are indirectly affected: they must be aware of the factor thresholds (e.g., 30 km/week running, five METs for four hours) to properly document history. Claim advocates and lawyers must know the factors to build a hypothesis. The Repatriation Medical Authority itself is the maker but is not affected in its operations; however, the SoP constrains its future determinations because if new evidence emerges the RMA must revoke or amend the SoP. The Department of Veterans’ Affairs and the Military Rehabilitation and Compensation Commission are the primary administrators; they must apply the SoP in initial claims, reviews, and appeals. The instrument does not directly affect private employers, but if a veteran’s condition is service-related, the employer may be affected through rehabilitation obligations under the Safety, Rehabilitation and Compensation Act (though that is a separate regime). The SoP also affects the Veterans’ Review Board and the Administrative Appeals Tribunal, which must apply the SoP when reviewing decisions. Practitioners in podiatry, orthopaedics, and sports medicine who treat veterans may be asked to provide evidence that matches the factor definitions. The instrument applies to claims to which section 120A of the VEA or section 338 of the MRCA apply (section 4). Those are provisions that require claims to be assessed by reference to the SoP in force. Therefore, any claimant with posterior tibialis tendinopathy must engage with this specific instrument, not with general medical causation.

The SoP imposes no direct duties on claimants; it is a standard for decision-makers. The key duty on the Repatriation Medical Authority was to determine the instrument based on sound medical-scientific evidence (section 7), which it has done. The duty on decision-makers (delegate of the Commission or DVA) is to apply the SoP when assessing a claim: they must consider whether any factor in section 8 exists and whether it is related to the person’s relevant service. If the claimant raises a hypothesis that conforms to the SoP, the decision-maker must accept the claim unless the hypothesis is disproved beyond reasonable doubt. This is a significant right for claimants: they do not need to prove causation on the balance of probabilities; they only need to raise a hypothesis supported by one factor. The right extends to both clinical onset and clinical worsening, though worsening is subject to the limitation in section 9(2) that the condition must have existed before or during service but not arisen from service. Claimants also have the right to rely on factor 15 (“inability to obtain appropriate clinical management”) to establish worsening. This factor can apply even if no other factor is present; it recognises that failure to treat the condition properly can aggravate it. However, the right is limited: the inability must be related to relevant service (e.g., the person could not access treatment because of posting to a remote location). The duty of the decision-maker includes correctly interpreting the definitions in the dictionary, especially MET measurement and the specified list of autoimmune diseases. If a factor refers to a condition covered by another SoP (e.g., gout or autoimmune disease), section 10 says the factors in that other SoP apply as in force from time to time. This cross-reference means claimants may need to satisfy additional SoPs for the underlying condition, which can complicate the claim. Claimants have the right to request a statement of reasons and to seek review of an adverse decision. The SoP does not confer any private right of action or cause of action; it is purely a administrative-evidentiary instrument.

The instrument itself does not create penalties. Enforcement is indirect: if a decision-maker fails to apply the SoP correctly, the claimant can appeal, and the decision may be set aside. There is no criminal penalty for breaching the SoP. However, there are consequences for claimants whose claims are refused because they cannot meet a factor: they lose entitlement to disability pension or compensation. That loss can be substantial in financial terms. For decision-makers, systematic non-compliance could lead to adverse findings by the Commonwealth Ombudsman or the Administrative Appeals Tribunal. The SoP is a legislative instrument registered on the Federal Register of Legislation, and thus is enforceable as law. If a decision-maker deliberately ignores the SoP, they may be acting ultra vires and the decision could be quashed by judicial review under the Administrative Decisions (Judicial Review) Act 1977. There is no direct penalty for claimants who provide false evidence, but general fraud provisions in the Criminal Code may apply if a claimant knowingly fabricates factors (e.g., falsely claiming to have run 30 km/week). The Repatriation Medical Authority has no enforcement role; its function ends when the SoP is made. The SoP also does not impose any reporting obligations or fines. The practical “penalty” for a claimant who cannot satisfy a factor is denial of benefits. Veterans’ advocates should note that even if a claimant has a genuine posterior tibialis tendinopathy, failure to demonstrate one of the factors and its relationship to service will result in claim rejection. There is no provision for exceptional circumstances or discretion outside the listed factors. The only softening is factor 15, which covers inability to obtain appropriate clinical management; but that requires proof that the lack of management was related to service and contributed to worsening. The instrument is unforgiving in that sense: it does not include a factor for obesity, diabetes, or other common comorbidities that may contribute to tendinopathy. Those are not a basis for a reasonable hypothesis under this SoP.

This SoP is made under the VEA and also applies to claims under the MRCA (section 4). It does not directly interact with state workers’ compensation laws, because it is exclusively federal veteran/military compensation. However, if a veteran also has a claim under the Safety, Rehabilitation and Compensation Act 1988 (SRCA) for a non-service related condition, the SoP is irrelevant; the SRCA has its own causation tests. The SoP interacts with other Statements of Principles through section 10. If a factor refers to an injury or disease covered by another SoP (e.g., gout, autoimmune disease), the factors in that other SoP are incorporated by reference as in force from time to time. This means a claimant may need to satisfy two independent SoPs: one for posterior tibialis tendinopathy and one for the underlying condition that triggers the factor. This can lead to complex cascading hypotheses. The SoP also interacts with the VEA and MRCA provisions on standard of proof: section 120A of the VEA and section 338 of the MRCA mandate that if a SoP is in force, the claim must be assessed under the reasonable hypothesis standard using the factors. If no SoP existed, the claim would be assessed under the old “reasonable hypothesis” case law without factor lists. Thus the SoP displaces the broader common law approach. The SoP does not affect criminal laws, privacy laws, or contract laws. It may be considered in civil proceedings if a court needs to determine the causation of a veteran’s injury, but the SoP is not binding outside the VEA/MRCA system. The instrument also interacts with the Repatriation Medical Authority’s own internal processes: once made, it can only be revoked or amended by a new SoP under subsection 196B(2) or (8). The interaction with state health regulations is negligible; the SoP does not require reporting of tendinopathy to any register. Medical practitioners who treat veterans are not obliged to use the SoP in clinical care; they only need to document information that may later support a claim. The instrument interacts with the Veterans’ Entitlements (Transitional Provisions and Consequential Amendments) Act 1986 in that claims that were pending before the SoP commencement may be transitional, but the SoP applies to claims made on or after 27 April 2021, as per section 2 commencement.

The instrument is the original version, made on 26 March 2021 and commencing on 27 April 2021. No amendments are included in the source document. There is no indication of any previous Statement of Principles on posterior tibialis tendinopathy that this instrument replaced; however, the RMA often revokes earlier SoPs when issuing a new one. The number “No. 45 of 2021” suggests it was the 45th SoP made in 2021. The instrument does not contain a revocation clause, so any prior SoP on the same condition would have been separately revoked by the RMA. As of the date of this deep dive, the instrument may have been amended by subsequent instruments, but the source provided is silent. Typically, SoPs are updated every few years when new medical evidence emerges. It is prudent to check the Federal Register of Legislation for an up-to-date compilation. The structure of the instrument (sections 1 to 10 and a Schedule) is standard for RMA SoPs. There is no explanatory statement or explanatory memorandum attached to the instrument; the RMA does not produce such documents. The authority is subsection 196B(2) of the VEA, which allows the RMA to determine SoPs for conditions they consider can be related to service. The instrument does not provide a statement of the evidence considered, though the recital in section 7 says there is sound medical-scientific evidence. That claim is not further elaborated. In litigation, the RMA may be required to disclose the material it relied upon, but that is not part of the instrument. The amendment history is thus limited: the instrument was made in 2021 and has not been revised within the source text.

The source document contains no information about litigation history. No case names or court decisions are cited. However, it is well known that Statements of Principles are frequently challenged in the Administrative Appeals Tribunal (AAT) and the Federal Court on grounds such as whether the RMA misapplied its statutory test or whether a factor is supported by sound medical-scientific evidence. For posterior tibialis tendinopathy specifically, there may be AAT decisions interpreting the 30 km/week running factor, the MET calculation, or the “inability to obtain appropriate clinical management” factor. This SoP is relatively recent (2021), so litigation may be in early stages. The instrument itself is not a court decision; it is a legislative instrument. The lack of citation means the user should not assume there is no relevant case law; rather, the source does not provide it. Practitioners should conduct their own search of AAT and Federal Court decisions that apply this SoP. Common litigation issues include whether the definition of MET was properly explained in a decision, whether “weight bearing exercise involving repeated activity of the ankle joint” includes cycling (which is not weight-bearing), and whether the 100% increase threshold can be satisfied by very brief spikes. Also, the “clinical onset” date may be disputed. The fact that the SoP includes factor 15 (inability to obtain appropriate clinical management) may have been influenced by earlier cases where the RMA was criticised for not including a “failure to treat” factor. The instrument does not mention any judicial consideration of its predecessor. Confident assertion of litigation history requires external research. This deep dive remains grounded in the source and does not supply that research.

Several provisions can trap an unwary claimant or advocate. First, the MET threshold in factors 2, 3, 9, and 10 is five METs. Many common activities like slow walking (2-3 METs) or gentle stretching do not reach five METs. A claimant who did low-impact gym work for four hours a week may not satisfy the factor unless the activity intensity is documented. Second, the 100% increase in frequency, duration or intensity in factors 3 and 10 must be to a minimum intensity of five METs and for at least two hours per day. This is a very specific spike: a sudden doubling of training load such as starting a marathon training block. Mere gradual increase won’t do. Third, the running/jogging factor requires an average of at least 30 km per week for at least the four weeks before clinical onset or worsening. That means consistent volume, not just one week of 50 km. An average over a month must be computed. Fourth, the specified list of autoimmune diseases is closed; seronegative spondyloarthropathies like reactive arthritis are listed, but other common autoimmune diseases such as lupus, Sjögren’s syndrome, or type 1 diabetes are not included. The condition must be at the time of clinical onset or worsening, not merely a past history. Fifth, factor 15 (“inability to obtain appropriate clinical management”) can be a double-edged sword: if the veteran had access to treatment but chose not to seek it, that will not satisfy the factor because ability is not the same as availability. The factor requires a causal link to service (e.g., posted to a location with no podiatrist). Sixth, section 9(2) restricts worsening factors: the condition must have been suffered or contracted before or during but not arising out of service. So if the tendinopathy first arose during service due to service activities, the worsening factors cannot apply; the claim must be for clinical onset. This can be tricky if a pre-existing mild condition worsened after service. Seventh, the definitions rely on medical terminology: “inflammation or degeneration” requires objective evidence; a subjective report of pain without imaging or examination may not satisfy the definition. Eighth, the “terminal event” definition in death claims may require expert evidence that the tendinopathy contributed to a listed terminal event. A death from unrelated causes (e.g., car accident) would not be covered even if the person had tendinopathy. Ninth, the cross-reference in section 10 means a claimant relying on factor 5 (infection), 6 (gout), or 7 (autoimmune disease) may need to satisfy a separate SoP for that condition, adding complexity. Tenth, the instrument does not include a factor for duration of the activity: factors 2 and 9 only require the activity for four hours per week for four weeks; that is only 16 hours total. A claimant could theoretically meet the factor with just 16 hours of moderate exercise over a month, which is less than many civilians do. Yet the factor is intended to reflect causal evidence; this may be generous.

Compliance with the SoP is not a matter of meeting legal obligations but of building a successful claim. For a veteran or their representative, the starting point is to obtain a confirmed diagnosis of posterior tibialis tendinopathy as defined in subsection 6(2): inflammation or degeneration causing localised pain/tenderness or rupture. The diagnosis should be supported by ultrasound, MRI, or clinical examination by a sports physician or podiatrist. Next, take a detailed history of physical activity, surgeries, infections, gout, autoimmune disease, and medical management. For the running/jogging factor, produce training logs, GPS data, or diary entries showing an average of at least 30 km per week over the four weeks before the date of clinical onset (or worsening). For weight-bearing exercise at five METs, list the specific activities and durations. Many exercise databases can convert activities to METs; a brisk walk at 5 km/h is about 3.5 METs, which is insufficient. A jog of 8 km/h is about 8 METs. The advocate must ensure the activity type is “weight bearing” - swimming and cycling do not count. For the 100% increase factor (factors 3 and 10), show a sudden jump in activity within seven days before onset, such as a previously sedentary person doing a two-hour hike. The increase must be to at least five METs for at least two hours per day - no short bursts. For trauma or surgery, obtain medical records confirming direct injury to the posterior tibialis tendon within 30 days. For infection or gout, confirm through pathology or clinical notes at the time of onset. For autoimmune disease, ensure the specific disease is on the closed list and is active at the time. If relying on factor 15 (inability to obtain appropriate clinical management), gather evidence that clinically appropriate treatment was unavailable due to service (e.g., overseas posting, field conditions, lack of specialist access). Also show that the inability contributed to worsening. For decision-makers, compliance means correctly applying the factors: do not substitute a factor not listed. Verify the definitions: check that MET calculations are accurate, that the condition fits the SoP definition, and that the relationship to relevant service is established. Use factor 10 (cross-reference) to incorporate other SoPs when needed. If a claim is rejected, the reasons must identify which factor was not met and why. The SoP does not require the decision-maker to consider any other evidence tending to show causation; they are limited to the factor list. That is the strict compliance imposed by the VEA and MRCA.