Statement of Principles concerning trochanteric bursitis (Balance of Probabilities) (No. 93 of 2023)

Trochanteric bursitis is defined under section 7(2) as a symptomatic disease involving inflammation of the bursae around the greater trochanter of the hip. Clinical manifestations include pain and tenderness in the lateral hip or buttock that worsen with physical activity. The ICD-10-AM code is M70.6, but the operative definition is the descriptive one in the SoP. "Death from trochanteric bursitis" is extended by section 7(5) to include death from a terminal event (pneumonia, respiratory failure, cardiac arrest, circulatory failure, or cessation of brain function) contributed to by the condition. The SoP hinges on the concepts of "clinical onset" and "clinical worsening". Several factors (1 through 9) can satisfy either, while factor 10 (inability to obtain appropriate clinical management) applies only to clinical worsening. Clinical worsening under section 10(2) additionally requires that the person's trochanteric bursitis was suffered or contracted before or during (but did not arise out of) their relevant service.

"Relevant service" is narrowly defined in the Schedule 1 Dictionary to include only 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. This excludes the most common claim pathways for operational veterans, who instead rely on SoPs made under subsection 196B(2) for the reasonable hypothesis standard. The MET (metabolic equivalent of task) is a unit of measurement: 1 MET equals 3.5 ml of oxygen per kg of body weight per minute, or 1.0 kcal per kg per hour, or resting metabolic rate. Several factors use MET thresholds of at least 5, requiring sustained moderate to vigorous activity. "Being obese" is defined as a Body Mass Index (BMI) of 30 or greater, with BMI defined as weight in kilograms divided by height in metres squared. "Direct trauma to the affected bursa" is a discrete event involving significant physical force to the bursa, causing symptoms of pain and tenderness with altered mobility or range of movement. The symptoms must persist for at least seven days unless medical intervention (splinting, corticosteroid injection, or surgery) occurs. "Systemic inflammatory disease" is an exhaustive list: rheumatoid arthritis, polymyalgia rheumatica, ankylosing spondylitis, enteropathic spondyloarthropathy, psoriatic arthropathy, reactive arthritis, or undifferentiated spondyloarthropathy. The SoP also incorporates by reference other SoPs when a factor refers to an injury or disease covered by another Statement of Principles (section 11). This means that if, for example, a factor requires "having a systemic inflammatory disease", and that disease itself has its own SoP, the factors in that disease's SoP must also be satisfied if the decision-maker relies on that disease as a link.

The primary population affected is veterans and members of the Australian Defence Force who have rendered "relevant service" as defined: eligible war service (non-operational), defence service (non-hazardous, non-British nuclear test), or peacetime service under the MRCA. This excludes most veterans with operational service, who instead fall under the reasonable hypothesis SoP regime. The instrument therefore disproportionately affects peacetime veterans, those who served in non-combat roles, and defence members with non-hazardous service. Claimants who have or had trochanteric bursitis and who can link one of the ten factors to their service are directly affected: if they meet a factor, their condition is deemed service-related on balance of probabilities, entitling them to compensation and medical treatment under the VEA or MRCA. Claimants who do not meet any factor will generally have their claims refused, unless a decision-maker is satisfied by other medical evidence outside the SoP (which is rare in practice as the SoP is treated as binding). The instrument also affects the Repatriation Commission and DVA as the administering bodies; they must apply the SoP strictly in determining liability. Medical advisers engaged by DVA will rely on the SoP to assess whether the evidentiary thresholds for activity levels (e.g. running 60 km per week, or 6 hours per week at 5 METs) are met. Medical practitioners providing reports to claimants must be aware of the specific definitions and timeframes.

Clinicians and physiotherapists who treat veterans may need to document activity levels and trauma history in a way that matches the SoP's criteria. The definitions also affect the assessment of aggravation: a veteran whose pre-existing trochanteric bursitis worsened due to service can rely on the clinical worsening aspects of factors 1-9, but only if the condition was suffered or contracted before or during (but not arising out of) their relevant service. This is a nuanced limitation that may catch some claimants who develop the condition gradually during service. The instrument also affects the broader veteran legal community: solicitors, advocates, and tribunal members must apply the factor thresholds and definitions precisely. Finally, the repeal of the 2015 SoP means that previous claims decided under the old instrument are not reopened, but any new claim after 28 November 2023 must be assessed under this new SoP.

The central duty is on the Repatriation Commission and DVA decision-makers to apply this SoP when determining claims under section 120B of the VEA or section 339 of the MRCA for trochanteric bursitis. The Commission must, in making a decision, determine whether any of the factors in section 9 exist and, if so, whether that factor is related to the person's relevant service (section 10). The instrument creates a quasi-conclusive presumption: if a factor exists and is related to service, the condition is taken to be connected with service on the balance of probabilities. The Commission does not have discretion to disregard a factor that is met, nor to add new factors not listed. The rights of the claimant are to have their claim assessed against the factors and to provide evidence to establish a factor. Claimants have the right to rely on any of the ten factors. In particular, factor 10 (inability to obtain appropriate clinical management) is notable: it applies only to clinical worsening, not onset. A claimant whose trochanteric bursitis worsened because of a failure to receive appropriate management (e.g. due to service-related delays or lack of access) may satisfy that factor.

Section 11 is important: if a factor refers to another injury or disease that itself has a SoP (e.g. systemic inflammatory disease like rheumatoid arthritis), then the factors in that other SoP also apply. This creates a chain of obligations: the decision-maker must also satisfy those secondary SoP factors before the primary factor can be relied on. Claimants must be prepared to prove not only the primary factor (e.g. having a systemic inflammatory disease) but also that the systemic inflammatory disease meets its own SoP factors and is related to service. This can substantially increase the evidentiary burden.

Claimants also have the right to have their claim considered on both clinical onset and clinical worsening. Where a claimant had trochanteric bursitis before service, they can still succeed if the condition was materially contributed to or aggravated by service through one of the factors, but only if the condition was suffered or contracted before or during (but did not arise out of) service. That is a key limitation: if the condition arose out of service (i.e. the very onset was due to service), then clinical worsening factors do not apply because the condition is already service-related. In practice, claimants with pre-existing trochanteric bursitis who later performed service must show either that the condition was not service-related initially and then worsened due to service, or that the condition was contracted during service (but not arising out of it) and then worsened. This distinction may cause confusion.

This instrument does not impose penalties directly. It is a legislative tool for determining entitlement, not a regulatory prohibition. However, enforcement of the SoP's correct application occurs through the merits review and judicial review systems. An incorrect decision by the Repatriation Commission can be reviewed by the Veterans' Review Board (VRB) and then by the Administrative Appeals Tribunal (AAT). Errors in applying the SoP are a common ground for review. For example, if a decision-maker misinterprets "direct trauma" or fails to consider a claimed factor, the decision may be set aside. Claimants can also seek judicial review in the Federal Court on jurisdictional error grounds, such as failing to consider a mandatory relevant factor or applying the wrong legal test. The cost of enforcement falls on the claimant in terms of time and legal fees; the system is heavily reliant on legal representation.

Penalties may arise under the Criminal Code Act 1995 (Cth) or the VEA if a claimant provides false or misleading information in support of a claim. For instance, fabricating a record of running 60 km per week or falsely claiming a direct trauma event could constitute fraud. The maximum penalty for social security and veterans' fraud can include imprisonment. The instrument itself does not create offences, but the underlying legislation does. Decision-makers who knowingly apply the factors incorrectly may face disciplinary action within DVA, but there is no direct penalty provision in the SoP. The real "penalty" for a claimant who fails to meet the factors is a refused claim, not a punitive sanction.

The enforcement of the SoP's criteria against the Commission is weak: if a decision-maker misapplies the SoP, the claimant's remedy is to appeal. There is no automatic audit mechanism. This places the enforcement burden on individual claimants and their representatives, creating an uneven playing field where sophisticated representation can make the difference between acceptance and refusal. The instrument thus operates as a gatekeeper, with the Commission as the gatekeeper and the claimant bearing the risk of error.

The SoP is made under subsection 196B(3) of the VEA. It directly interacts with section 120B of the VEA, which requires the Commission to determine claims for non-operational service by applying the relevant SoP. Similarly, it interacts with section 339 of the MRCA for peacetime service claims. This instrument does not apply to operational service claims under the VEA, which are governed by subsection 196B(2) SoPs and the reasonable hypothesis standard. Thus, a veteran with both operational and non-operational service would have different SoPs applying to different periods of service, and the decision-maker must disentangle which period caused the condition.

The SoP repeals and replaces the previous SoP No. 46 of 2015, which covered both trochanteric bursitis and gluteal tendinopathy. The new instrument deals only with trochanteric bursitis. Gluteal tendinopathy now requires its own SoP (likely a separate instrument). Claimants with gluteal tendinopathy cannot rely on this SoP. The interaction with other SoPs is explicitly governed by section 11: if a factor in this SoP refers to another injury or disease that has its own SoP under subsection 196B(3), then the factors of that other SoP apply. For example, factor 7 refers to "systemic inflammatory disease", which includes rheumatoid arthritis. If a claimant relies on factor 7, they must also establish that their rheumatoid arthritis meets the factors in the rheumatoid arthritis SoP (if one exists) and that those factors are related to service. This creates a cascading application of SoPs, increasing the complexity of claims.

The instrument also interacts with common law causation principles, but by force of statute it overrides those principles for claims within its scope. A decision-maker cannot disregard the SoP and apply a general medical opinion; the SoP is binding. The instrument does not affect claims for death from trochanteric bursitis, but it defines death broadly to include terminal events contributed to by the condition. This interacts with other SoPs dealing with terminal events, but section 11 only applies if a factor refers to another injury or disease, not to terminal events per se.

The definitions in the Schedule 1 Dictionary borrow from medical conventions such as ICD-10-AM and the MET system, which are external standards. The instrument is silent on how to prove MET levels in practice; this creates an interaction with clinical guidelines or exercise physiologist reports, which may not be consistent. The instrument does not incorporate any privacy or evidence laws, but the VEA and MRCA contain their own evidentiary and procedural rules.

This instrument, No. 93 of 2023, was made on 25 October 2023 and commenced on 28 November 2023. It repeals the Statement of Principles concerning trochanteric bursitis and gluteal tendinopathy No. 46 of 2015 (F2015L00011). The 2015 SoP was made under subsections 196B(3) and (8) of the VEA. That earlier instrument covered both conditions jointly. The separation into a standalone SoP for trochanteric bursitis reflects a change in the Authority's view of the medical evidence. It is not an amendment to the earlier instrument but a full repeal and remake. There is no intermediate amendment history; the 2015 SoP was the previous version. The new SoP does not include gluteal tendinopathy, so a new SoP addressing that condition must have been made separately (not provided here). This repeal and remake is standard practice for SoPs as the Authority reviews medical evidence periodically. The instrument does not contain transitional provisions; it applies to claims made on or after commencement, but section 5 states it applies to claims to which section 120B VEA or section 339 MRCA applies. These sections apply to claims lodged after certain dates; the SoP will apply to any claim determined after 28 November 2023, even if the claim was lodged before that date, as the law in force at the time of decision generally applies. The explanatory statement (not provided) would likely explain the reasons for the changes. The Authority is required to review SoPs at least every five years, and the 2015 SoP would have been due for review. The new SoP incorporates updated medical evidence, reflected in the specific MET and activity thresholds.

The instrument itself does not name any court cases. However, the general history of SoPs being litigated is well known. The interpretation of "clinical onset" and "clinical worsening" has been the subject of numerous AAT and Federal Court decisions. The definition of "direct trauma" requiring persistence of symptoms for seven days unless medical intervention occurs has been tested; cases have considered whether a splint or injection that occurs within seven days resets the count. The specific thresholds for METs and kilometres run will likely produce litigation. Claimants may argue that the 60 km per week running average is arbitrary or that the 100 per cent increase in activity within one week is too onerous. The decision in Repatriation Commission v. Fogarty (2013) and Repatriation Commission v. Webb (2009) established that SoPs must be applied strictly but that the relevant service connection must be real and not fanciful. The Federal Court has held that the Repatriation Medical Authority has a broad discretion in determining factors, but the factors must be based on sound medical-scientific evidence (subsection 196B(2) and (3)). Challenges to the validity of SoPs on the grounds that a factor is not supported by sound medical-scientific evidence have been rare but possible; for example, if a claimant could show that running 60 km per week is not scientifically linked to trochanteric bursitis, they might argue the SoP is ultra vires. However, the Authority is given considerable deference. The litigation history of the 2015 SoP may include cases where the combined SoP led to confusion between trochanteric bursitis and gluteal tendinopathy; the separation is likely a response to those issues. Future litigation will likely focus on the precise quantification of activity: how to prove average weekly running distance, how to measure METs in non-controlled environments, and what constitutes "weight bearing exercise involving repeated activity of the hip". The definition of "significantly abnormal gait" may also be contested, as it is not defined in the instrument. Without a definition, decision-makers will rely on medical opinion, leading to inconsistency.

Several traps are embedded in the instrument. First, "relevant service" excludes all operational service, hazardous service, and British nuclear test defence service. Claimants who served in declared warlike operations cannot use this SoP; they must prove their claim under the reasonable hypothesis standard with a different SoP. This is often overlooked by veterans who assume all service is covered. Second, factor 1 (running 60 km per week average) is extremely high: 60 km per week is roughly 8.5 km per day, every day, for four weeks. This will be unusually arduous for most people, and evidence of such running is rarely documented in service records. Third, factor 2 requires weight bearing exercise at a minimum of 5 METs for at least 6 hours per week for four weeks. 5 METs is brisk walking at about 5-6 km/h or light jogging. Six hours per week is nearly an hour per day. Proving this with service records is difficult unless the person was in a physically demanding role with quantified duties. Factor 3 is even more demanding: a 100 per cent increase in activity within one week to at least 5 METs for at least 4 hours per day. This requires a sudden doubling of already significant activity, which would be rare outside of military recruit training or specific deployments.

Factor 4 (direct trauma) has a tricky definition: the trauma must cause symptoms that persist for at least seven days unless medical intervention occurs. If the person receives an injection on day 1, the seven-day rule is waived, but if they receive only rest or analgesics (not a listed intervention), they still need seven days of symptoms. This can lead to disputes about what qualifies as "immobilisation of the hip by splinting or similar external agent". A compression bandage may not suffice. Factor 8 (significantly abnormal gait) is not defined at all; "significantly" is subjective, inviting conflicting medical opinions.

Factor 9 (obesity at the time of clinical onset or worsening) requires BMI 30 or greater. This may be proven by service medical records, but BMI can fluctuate; the SoP does not specify a minimum duration of obesity. A person who was temporarily obese due to a one-off weight measurement might qualify, but decision-makers may demand evidence of sustained obesity. Factor 10 (inability to obtain appropriate clinical management) only applies to clinical worsening, not onset, and only where the condition was already present before or during service but did not arise out of service. This is a narrow window: if the condition arose out of service, clinical worsening factors cannot be used; if it was acquired after service, factor 10 cannot apply because the worsening must occur during or after service. The "inability" must be related to service, which could be tricky if the person simply chose not to seek treatment.

Section 10(2) is a frequent trap: the clinical worsening aspects of factors 1-9 only apply to material contribution to aggravation where the person's trochanteric bursitis was suffered or contracted before or during (but did not arise out of) the person's relevant service. So if the condition was contracted during service and arose out of service, the clinical onset factors are used instead, and the clinical worsening factors do not apply. But if the condition was contracted during service but not arising out of it (e.g. a pre-service condition that became symptomatic during service), the clinical worsening factors can be used. The distinction is subtle and often misunderstood.

Finally, the instrument does not define "clinical onset" or "clinical worsening", leaving those terms to be interpreted by case law. This creates uncertainty; a claimant might have symptoms that are mild and not formally diagnosed, but the onset date matters for establishing the temporal relationship with the factor.

Compliance for the claimant is about proof. The first step is obtaining a definitive diagnosis of trochanteric bursitis as defined in section 7: symptomatic inflammation of the bursae around the greater trochanter. This usually requires imaging or clinical examination. The claimant must then identify which of the ten factors in section 9 can be established. For each factor, rigorous evidence is required. For activity-based factors (1, 2, 3), the best evidence is contemporaneous records: unit training logs, physical training attendance records, GPS run logs, or witness statements. The MET equivalent of activity (minimum 5) must be estimated using accepted conversion tables; an exercise physiologist's report can help. Running distance (factor 1) must average 60 km per week for the four weeks before onset or worsening, not just on occasional weeks. For factor 3, the 100 per cent increase must be calculated with a baseline activity level; this requires evidence of both the baseline and the increased period.

For factor 4 (direct trauma), the claimant must document a discrete force event and then show the onset of pain, tenderness, and altered mobility or range of movement. The symptoms must persist for at least seven days unless there was splinting, corticosteroid injection, or surgery. Medical records from the trauma event and subsequent visits are essential. Factor 5 (hip surgery) is straightforward if medical records show surgery within four weeks before onset. Factor 6 (infection) requires culture or clinical evidence. Factor 7 (systemic inflammatory disease) requires a diagnosis from the prescribed list, and then the claimant must also satisfy the SoP for that systemic disease if it has one (section 11). Factor 8 (abnormal gait) is the most vague; a medical report stating that the claimant had a significantly abnormal gait for at least four weeks before onset is needed, but the report must explain what made it "significantly abnormal". Factor 9 (obesity) requires a BMI measurement of 30 or more at the time of onset or worsening. A medical record showing weight and height at that time is sufficient.

Factor 10 (inability to obtain appropriate clinical management) applies only to clinical worsening. The claimant must show that the condition existed before the worsening, that appropriate management was not obtained, and that this inability was due to service (e.g. posting to a remote location, lack of access to a physiotherapist, or service constraints). Evidence of attempts to obtain management or an explanation of why management was unavailable is needed.

Once a factor is established, the claimant must link that factor to their relevant service under section 10. This means showing that the factor itself (e.g. running 60 km per week) was a consequence of the person's service duties or circumstances. For example, running during unit physical training qualifies; running on weekends for recreation may not unless required by service. The "relationship to service" is a key hurdle; the factor must be related to the person's relevant service, not just occur during that period. For clinical worsening, the claimant must also satisfy the limitation in section 10(2) that the condition was suffered or contracted before or during service but did not arise out of service. This may require evidence of when the condition first manifested.

For decision-makers at DVA, compliance means assessing each factor disjunctively and not adding additional requirements. They must accept any factor that is proved on the balance of probabilities. They must apply the dictionary definitions strictly. They must consider both clinical onset and clinical worsening where relevant. When a factor refers to another injury or disease, they must turn to the corresponding SoP and apply its factors. They must ensure the factor is related to service. Finally, they must apply the SoP to the circumstances at the time of decision, not the time of claim lodgement, unless transitional provisions apply. The instrument is silent on transitional application, but the general rule is that the law in force at decision governs. Claimants should be aware that if a favourable SoP changes before their claim is determined, they may lose the benefit. Therefore, early lodgement and early decision are advisable.