Statement of Principles concerning spondylolisthesis and spondylolysis (Balance of Probabilities) (No. 57 of 2025)

This instrument is a Statement of Principles (SoP) determined under subsection 196B(3) of the Veterans' Entitlements Act 1986 (VEA). It replaces the 2017 SoP (No. 25 of 2017) and sets out the medical factors that must exist before a decision-maker can be satisfied, on the balance of probabilities, that spondylolisthesis or spondylolysis, or death from those conditions, is connected with a person's relevant service under the VEA or peacetime service under the Military Rehabilitation and Compensation Act 2004 (MRCA). The SoP is a legislative instrument that binds the Repatriation Commission, the Military Rehabilitation and Compensation Commission, and other decision-makers when determining claims. It does not directly grant or deny compensation; it provides a standardised causal framework derived from what the Repatriation Medical Authority (RMA) considers to be sound medical evidence. The instrument has nine specific factors in section 9, plus a tenth factor concerning inability to obtain appropriate clinical management, at least one of which must be present for a positive causal finding. The SoP applies only to claims where the standard of proof is balance of probabilities, which covers eligible war service (other than operational service), defence service (other than hazardous service and British nuclear test defence service) under the VEA, and peacetime service under the MRCA. A separate SoP under subsection 196B(2) (reasonable hypothesis) applies to operational service claims. The instrument repeals the previous SoP and commences on 21 July 2025. It operates by replacing a more discretionary earlier approach with a codified set of pathways. Practitioners must note that the SoP does not purport to be a complete medical treatise on the conditions; it only lists factors the RMA considers necessary and sufficient for a causal link to service. The list is exhaustive: if none of the ten factors is established, the claim on balance of probabilities must fail, regardless of other medical opinion.

The instrument defines spondylolisthesis as forward or backward displacement of one vertebra over the vertebra below, explicitly excluding spondylosis (degenerative disc disease without displacement). Spondylolysis is defined as a defect or fracture, unilateral or bilateral, involving the pars interarticularis of a vertebra, also excluding spondylosis. These definitions are primary: the ICD-10-AM codes (M43.1 and M43.0) are referenced but the instrument states that the meaning given in subsection 7(2) prevails over the code labels. This means a clinical diagnosis must match the precise definition, not merely the code. Death from spondylolisthesis or spondylolysis includes death from a terminal event (pneumonia, respiratory failure, cardiac arrest, circulatory failure, cessation of brain function) that was contributed to by the condition. The central legal concept is the list of factors in section 9. The factors are: high impact trauma causing acute fracture of the vertebral arch (at clinical onset or worsening); high impact trauma causing acute fracture or dislocation within one year before onset or worsening; trauma to the spine at the time of clinical worsening of spondylolytic spondylolisthesis; for persons under 25 only, engaging in repetitive hyperextension, torsion or rotation against resistance for at least 10 hours per week for six months before onset or worsening of spondylolysis or spondylolytic spondylolisthesis; prior spinal fusion; prior spinal surgery that damages spine integrity; spondylosis at the same level before onset or worsening of degenerative spondylolisthesis; pathological damage to the affected vertebra; rheumatoid arthritis involving the vertebra; and a BMI of 30 or greater for five years before onset or worsening of degenerative anterolisthesis. The instrument includes factor 10: inability to obtain appropriate clinical management before clinical worsening. The instrument also introduces defined subcategories: degenerative anterolisthesis (forward displacement from osteoarthritis of facet joints), degenerative spondylolisthesis (forward or backward displacement from the same cause), and spondylolytic spondylolisthesis (spondylolisthesis where pre-existing spondylolysis exists). These concepts are critical because each factor links to a specific subtype. For example, factor 10 (obesity) applies only to degenerative anterolisthesis, not to other forms like spondylolytic spondylolisthesis. The concept of relevant service is defined in the dictionary to mean eligible war service (non-operational) and defence service (non-hazardous) under the VEA, and peacetime service under the MRCA. This means the instrument does not cover operational service, hazardous service, or British nuclear test defence service.

The primary group affected is current and former members of the Australian Defence Force who have rendered relevant service as defined. This includes veterans with eligible war service (service during wartime periods not involving operational deployment) and defence service (peacetime service between defined dates, excluding hazardous service and British nuclear test defence service). It also covers members who rendered peacetime service under the MRCA after 30 June 2004. For death claims, the dependents of such persons are affected because the instrument sets out when death from spondylolisthesis or spondylolysis can be accepted as service-related. The instrument binds the Repatriation Commission and the Military Rehabilitation and Compensation Commission when they decide claims. Decisions under the VEA and MRCA are made by delegates of those commissions, including departmental officers. Therefore the instrument affects the day to day work of claims assessors, medical advisers, and review bodies including the Veterans' Review Board and the Administrative Appeals Tribunal. Legal practitioners representing veterans must understand the factor requirements to gather appropriate evidence and frame submissions. The instrument also affects medical specialists who provide medicolegal reports: they must address the definitions and factor criteria precisely. For example, a neurosurgeon or orthopaedic surgeon must differentiate spondylolisthesis from spondylosis and identify the subtype (degenerative, spondylolytic, etc.) to match the correct factor. The RMA itself is indirectly affected as the maker, but it will conduct future reviews. The instrument replaces the 2017 version, so anyone with a pending claim under the old SoP will need to be reassessed under the new instrument if the claim is not yet decided by the commencement date. The instrument's effect is largely procedural, but it imposes costs on claimants who must produce evidence fitting the factor descriptions. For example, factor 4 (repetitive hyperextension) applies only to persons under 25 years, excluding older veterans who may have engaged in the same activities later in life. That age limit is a deliberate narrowing of the causal pathway, affecting older claimants. Factor 10 (inability to obtain clinical management) may affect veterans who were in remote postings or had limited access to medical care, but proving that inability is a factual hurdle.

The central duty imposed by the instrument is on the decision-maker. Under sections 120B of the VEA and 339 of the MRCA, when deciding a claim to which this SoP applies, the decision-maker must determine the claim in accordance with the relevant SoP (balance of probabilities version). This means the decision-maker must be satisfied that at least one factor in section 9 exists and is related to the person's relevant service. If no factor is established, the decision-maker must determine that the condition is not connected to service, regardless of any other medical opinion. The decision-maker also has a duty to apply the dictionary definitions precisely, including the subdefinitions of degenerative spondylolisthesis, spondylolytic spondylolisthesis, and degenerative anterolisthesis. For clinical worsening claims, section 10(2) imposes a limitation: the factor must have materially contributed to or aggravated the condition only where the condition was suffered or contracted before or during (but did not arise out of) the person's relevant service. This prevents a person from relying on a worsening factor if the condition first arose out of service itself. The claimant has the right to have the claim assessed under the correct SoP, including the right to have the previous SoP applied if the claim was lodged before commencement, depending on transitional provisions not contained in this instrument (practitioners must check the VEA and MRCA transition rules). Claimants also have a right to provide evidence addressing each factor and to have that evidence properly considered. The instrument does not create a right to compensation; it operates within the existing legislative framework. Section 11 creates a cross-reference duty: if a factor in section 9 refers to an injury or disease that is itself covered by another SoP, the factors in that other SoP apply as in force from time to time. For example, factor 8 refers to pathological damage to the affected vertebra, which could involve conditions like tuberculosis or osteoporosis. The existence of those underlying conditions must be established under the relevant SoP for those conditions (if any). That cross-reference can import additional evidentiary burdens. The duty of the decision-maker is to apply both the primary SoP and any incorporated SoP consistently. The instrument does not remove the decision-maker's obligation to consider all the evidence, but it restricts the causal reasoning to the listed pathways. If a factor is met, the decision-maker must find connection on balance of probabilities, subject to the requirement that the factor is related to service.

This instrument does not create criminal penalties or civil pecuniary penalties. It is a standard-setting instrument for decision-making. Enforcement occurs through the internal review and external review processes under the VEA and MRCA. If the Repatriation Commission or MRCC makes a decision that fails to apply the SoP correctly, the claimant can apply to the Veterans' Review Board (VRB) for review. The VRB must apply the same SoP. A further appeal lies to the Administrative Appeals Tribunal (AAT). The AAT can set aside the decision and substitute its own, but must also apply the SoP. Judicial review to the Federal Court is available on questions of law, such as whether the decision-maker misapplied the definitions or the factor requirements. The SoP itself can be challenged by way of judicial review as a legislative instrument, but the grounds are narrow: procedural error in the RMA's determination, unreasonableness, or acting beyond power. However, the RMA has very broad discretion under subsection 196B(3) to determine what factors it considers relevant based on sound medical evidence. Courts rarely overturn SoPs. The practical "penalty" for failing to apply the instrument is that the decision will be set aside on review, delaying compensation and possibly costing the government legal fees. For claimants, failing to establish a factor means no compensation. There is no separate penalty for fraud, though the general law applies if a claimant fabricates evidence. The instrument also has no direct enforcement mechanism against the RMA if it later determines that the SoP is flawed; it simply becomes outdated and will be replaced. The RMA is required to review SoPs periodically but not on a fixed schedule. The 2017 SoP was in force for about eight years. There is no monetary penalty or administrative fine attached to non-compliance with the instrument's terms. The only enforcement is through the administrative law system. The instrument imposes a compliance burden on the Department of Veterans' Affairs to train decision-makers and medical advisers on the new factor definitions, especially the age limit for factor 4 and the BMI threshold for factor 10. That cost is internal to government. For claimants, the cost of obtaining specialist medical evidence to meet the factor definitions is a private burden. The instrument does not entitle claimants to free medical reports.

This SoP is made under subsection 196B(3) of the VEA and is therefore part of the legislative framework for veterans' entitlements. It operates alongside the reasonable hypothesis SoP (subsection 196B(2)) for operational service claims. Practitioners must be careful to use the correct subsection: this instrument applies only to balance of probabilities claims under section 120B of the VEA and section 339 of the MRCA. The instrument explicitly states that it applies to claims to which those sections apply. It interacts with the VEA and MRCA by providing the step between a diagnosis and a causal finding. The VEA itself contains the standard of proof rules, the definitions of eligible war service, defence service, and the like. This SoP does not override those definitions but uses them. The instrument repeals the 2017 SoP, so from 21 July 2025, only the new SoP applies to claims decided on or after that date, even if the claim was lodged earlier, subject to transitional provisions in the VEA and MRCA which may preserve the old SoP for certain claims. Section 11 is a notable cross-reference mechanism: where a factor in section 9 refers to an injury or disease that is the subject of another SoP, the factors in that other SoP are incorporated. For example, factor 8 refers to "pathological damage to the affected vertebra" and mentions tumours, tuberculosis, osteomyelitis, osteoporosis, and Paget disease. If a claimant has osteoporosis, the existence of osteoporosis may need to be established under the SoP concerning osteoporosis (if one exists). This creates a chain of SoPs: the primary SoP for spondylolisthesis may depend on compliance with the osteoporosis SoP. The instrument also interacts with the Health Insurance Act 1973 and Medicare for the provision of medical services, but indirectly. It does not affect diagnosis coding for ICD-10-AM purposes; the definitions are independent. The instrument does not interact with state workers compensation laws, as it is specific to federal veterans' matters. However, it could be used as evidence in other proceedings where a veteran's condition is relevant, such as in family law or personal injury claims, but it has no binding force outside the VEA and MRCA. The instrument's dictionary defines "relevant service" narrowly, meaning it does not apply to service that is operational, hazardous, or British nuclear test defence. For those services, the reasonable hypothesis SoP must be used. Practitioners must cross-check whether a veteran's service falls under VEA or MRCA and which standard of proof applies before citing this instrument.

This instrument is a standalone determination. It replaces the Statement of Principles concerning spondylolisthesis and spondylolysis (Balance of Probabilities) (No. 25 of 2017). The previous SoP was registered on the Federal Register of Legislation as F2017L00167. The new SoP is No. 57 of 2025. The instrument was made on 20 June 2025 and commences on 21 July 2025. There is a 31-day gap between making and commencement, typical for legislative instruments to allow notice. The earlier 2017 SoP itself replaced earlier versions; the first spondylolisthesis SoP likely dates from the early 2000s. The RMA reviews SoPs periodically based on new medical evidence. The instrument states the RMA is of the view that it is more probable than not that spondylolisthesis or spondylolysis can be related to relevant service. This opinion statement is required under subsection 196B(3). The instrument does not contain any transitional provisions or savings clauses; the VEA and MRCA will govern whether old claims are decided under the old or new SoP. Typically, a claim that has been finally determined before the new SoP commences is unaffected. Claims decided after commencement must apply the new SoP, but those lodged before commencement may be subject to the previous SoP if the decision is made under the old law. Practitioners must check the specific transitional provisions in the VEA. The instrument has not been amended since enactment; it is the original text. The dictionary definitions are identical in structure to the 2017 SoP? The new SoP adds a factor for pathological damage and rheumatoid arthritis? Actually the 2017 SoP had similar factors, but the new one includes factor 8 (pathological damage) and factor 9 (rheumatoid arthritis) - checking the 2017 SoP would confirm any substantive changes, but the source does not provide it. The instrument notes that it is made under the same subsection and standard. The RMA may issue further SoPs if evidence changes. The instrument will remain in force until repealed by a later SoP. The repeal and replacement cycle is standard practice.

The source document does not cite any cases. However, the SoP framework has been extensively litigated in the VRB and AAT. Many cases turn on whether a factor is established on the evidence. For instance, factor 4 (repetitive hyperextension for persons under 25) has been litigated on the meaning of "repetitive and forceful hyperextension" and the required average hours per week. The AAT has considered what counts as "high impact trauma" in earlier SoPs. Although the AAT is bound by the SoP, it interprets the words according to their ordinary meaning. The Federal Court has considered the validity of SoPs in cases like Repatriation Commission v Gosewisch (1991) but that case is about an earlier version of s196B; the current SoPs are more constrained. The term "clinical onset" and "clinical worsening" have been the subject of decisions. The dictionary definition of "terminal event" may also be litigated in death claims. The instrument's reference to "inability to obtain appropriate clinical management" (factor 10) could generate disputes about what constitutes "appropriate" management and whether the veteran had access. The definition of degenerative spondylolisthesis may be contested if a veteran has mixed pathology. The instrument explicitly excludes spondylosis, so cases where the diagnosis is uncertain may require expert evidence to distinguish the two. The VRB has discretion to accept or reject medical opinion, but it must apply the SoP factors strictly. If a veteran cannot meet any factor, the claim fails regardless of the strength of the medical opinion. That has been the cause of many appeals. The instrument does not list the ICD codes in the definitions, but uses them as a cross-reference only. Any litigation about coding will not override the instrument's own definition. Because the SoP is a legislative instrument, it is subject to the Acts Interpretation Act 1901 for construction. The RMA's basis for determining factors is not reviewable on the merits; it is a medical-scientific opinion. Litigation challenging the SoP itself is rare. The more common litigation is about whether the decision-maker correctly applied the factors to the facts.

Several features of this instrument can trap unwary practitioners. First, the definition section (subsection 7(2)) explicitly excludes spondylosis. A veteran diagnosed with degenerative disc disease and accompanying displacement may be labelled with spondylolisthesis clinically, but if the displacement is secondary to spondylosis (which is common in older patients), the condition may fall outside the SoP's definition. The instrument says spondylolisthesis excludes spondylosis; therefore, if the displacement is caused by spondylosis, it is not spondylolisthesis for SoP purposes. That might be a semantic trap; expert evidence must precisely state the underlying pathology. Second, factor 4 applies only to persons less than 25 years of age. A veteran aged 50 who played football and weight trained in their twenties cannot use factor 4 if clinical onset occurred after age 25. The average 10 hours per week for six months is also a high threshold that requires documented evidence; recreational guesses may fail. Third, factor 10 (BMI of 30 or greater for five years before onset or worsening) applies only to degenerative anterolisthesis. That subtype is defined as forward displacement from facet joint osteoarthritis. If the veteran has degenerative spondylolisthesis (which includes retrolisthesis) or spondylolytic spondylolisthesis, obesity is not a listed factor. The five-year continuous period is difficult to prove without medical records. Fourth, factor 10 (inability to obtain appropriate clinical management) is the last factor. It is often overlooked. It does not require a specific injury; it simply requires that the person was unable to obtain appropriate clinical management before clinical worsening. For example, a veteran posted to a remote location where no spinal surgeon was available might argue that the lack of management caused worsening. But "inability" must be proved; mere delay or inconvenience may not suffice. Fifth, the cross-reference in section 11 means that if a factor refers to another condition (e.g., factor 9: rheumatoid arthritis), the existence of that condition must be established under the relevant SoP. That may require additional evidence and may import stricter causal requirements for the secondary condition. Sixth, clinical worsening claims are limited by section 10(2): the factor must have materially contributed to or aggravated the condition only if the condition was suffered or contracted before or during service but did not arise out of service. If the condition arose out of service, clinical worsening factors cannot be used; the condition would already be service-related. Seventh, the dictionary defines "relevant service" narrowly as non-operational, non-hazardous service. A veteran who had operational service and later peacetime service may have the condition related to operational service but this SoP cannot be used for that relationship; a different SoP applies. Eighth, the instrument says the SoP is about spondylolisthesis and spondylolysis, but factor 2 (trauma within one year before clinical onset) only applies to spondylolisthesis, not spondylolysis. Factor 3 (trauma at time of worsening) applies only to spondylolytic spondylolisthesis. Factor 4 applies to spondylolysis or spondylolytic spondylolisthesis, not to degenerative types. The subtypes must be matched correctly. Ninth, the "high impact trauma" in factor 1 requires an acute fracture of the vertebral arch at the time of onset. Factor 2 for spondylolisthesis requires acute fracture or dislocation within one year. They are separate; one is timing-specific. Tenth, the examples in the notes are non-exhaustive, but decision-makers may give them weight. A sport not listed might still qualify, but the onus is on the claimant to prove it meets the definition of "repetitive and forceful hyperextension, torsion or rotation against resistance".

For claimants and their representatives, compliance requires a systematic approach. First, obtain a precise medical diagnosis that matches the instrument's definitions. The diagnosis must state whether the condition is spondylolysis, spondylolisthesis (with type: degenerative, spondylolytic, etc.), and whether it excludes spondylosis. The medical report should use the language of the instrument where possible. Second, identify which factor(s) may apply. This requires a detailed history of the veteran's service, including any specific trauma events, physical activities, surgeries, medical conditions (rheumatoid arthritis, pathological bone disease), and weight history. Third, gather documentary evidence to support each element of the chosen factor. For factor 1 (high impact trauma), obtain service records, accident reports, and contemporaneous medical records showing acute fracture. For factor 4, obtain records of sporting or training activities with hours logged. For factor 10, obtain medical records showing weight measurements for five consecutive years and BMI calculation. If factor 11 (inability to obtain appropriate clinical management) is relied on, gather evidence of attempts to access care, distance to specialists, or refusals of treatment. Fourth, ensure that the chosen factor is related to the person's relevant service, as required by section 10(1). The factor must arise from the circumstances of service. For example, a sports injury occurring during off-duty recreational football might struggle unless the activity was part of a service requirement. Fifth, for clinical worsening claims, check that the condition was suffered or contracted before or during service but did not arise out of service. Obtain evidence of pre-service diagnosis or symptoms and show that service factors caused worsening. Sixth, be aware of the cross-reference in section 11. If factor 8 or 9 is used, ensure that the underlying condition (e.g., osteoporosis, rheumatoid arthritis) is established under its own SoP. That may require a separate claim or medical evidence meeting those specific factors. Seventh, prepare a submission that explicitly maps the evidence to the factor and the definition of spondylolisthesis or spondylolysis subtype. Avoid generic statements about "back injury". Eighth, if the claim is for death, ensure that the terminal event contributed to by the spondylolisthesis or spondylolysis is identifiable and documented. The terminal event does not need to be the sole cause, but must be contributed to. Ninth, keep copies of the SoP as in force at the date of decision. If the claim was lodged before commencement but decided after, check transitional provisions. Tenth, consider seeking specialist medicolegal advice from a medical practitioner experienced with SoPs, particularly for the age-limited and subtype-specific factors. The Department of Veterans' Affairs provides some templates, but they are no substitute. For decision-makers, compliance means training staff on the new definitions, especially the exclusion of spondylosis and the subtypes. A checklist for each factor should be used. For medical advisers, compliance means reading the definitions carefully and not substituting clinical intuition for the instrument's categories. The RMA's notes are illustrative but not exhaustive; accept evidence that falls within the ordinary meaning of the factor descriptions even if not listed.