Statement of Principles concerning trochanteric bursitis (Reasonable Hypothesis) (No. 92 of 2023)

Trochanteric bursitis is defined in section 7(2) as a symptomatic disease involving inflammation of the bursae around the greater trochanter of the hip. This is a clinical definition, not merely a diagnostic code reference; the ICD-10-AM code M70.6 is listed only for administrative convenience. The definition excludes asymptomatic bursal changes and requires symptoms such as lateral hip or buttock pain worsening with activity. Death from trochanteric bursitis is also covered, including cases where a terminal event such as pneumonia or cardiac arrest was contributed to by the bursitis (dictionary definition of terminal event).

Relevant service is defined in the dictionary by reference to the VEA and MRCA categories: operational service, peacekeeping service, hazardous service, British nuclear test defence service under the VEA, and warlike or non-warlike service under the MRCA. This is a closed list; ordinary peacetime domestic service not falling into these categories is excluded from the SOP’s scope. The instrument does not apply to claims under the Safety, Rehabilitation and Compensation Act 1988, which uses a different standard of proof.

Factors are the core mechanism. Section 9 lists ten factors, each with specific quantitative or qualitative thresholds. They include: running or jogging at least 30 km per week for four weeks before clinical onset or worsening; weight-bearing exercise at a minimum of 5 METs for at least four hours per week for four weeks; a 100 per cent increase in activity involving the hip to at least 5 METs for at least two hours per day within one week; direct trauma to the affected bursa (with detailed definition); hip surgery within four weeks; bursal infection; systemic inflammatory disease (defined list of seven conditions); significantly abnormal gait for at least four weeks; obesity (BMI 30 or greater) at the time of onset or worsening; and inability to obtain appropriate clinical management before worsening.

Clinical onset and clinical worsening are not fully defined in the instrument, but they are standard terms used in veterans’ law. Clinical onset refers to the first appearance of symptoms that would lead a medical practitioner to diagnose trochanteric bursitis. Clinical worsening refers to a material deterioration in the condition that is not merely a temporary fluctuation. The factors for worsening apply only to cases where the original trochanteric bursitis was suffered or contracted before or during (but did not arise out of) relevant service, as per section 10(2).

MET (metabolic equivalent of task) is defined in the dictionary as a unit of measurement where 1 MET equals 3.5 ml of oxygen per kg per minute or 1.0 kcal per kg per hour. This is the resting metabolic rate. Examples of activities at 5 METs include marching, sustained brisk walking, climbing stairs, playing football, and dancing, but these are illustrative only; the claimant must produce evidence of the actual metabolic demand of the activity.

Direct trauma to the affected bursa is elaborately defined. It requires a discrete event applying significant physical force, plus development of pain, tenderness and altered mobility or range of movement, and persistence of those symptoms for at least seven days (unless medical intervention such as splinting, corticosteroid injection or surgery occurs). This definition imposes a higher evidentiary standard than mere bruising; it demands proof of both the discrete event and the lasting symptoms.

Being obese is defined strictly as a BMI of 30 or greater, calculated as weight in kilograms divided by height in metres squared. This is a fixed threshold; there is no allowance for borderline obesity or body composition variations.

Systemic inflammatory disease is confined to a list: rheumatoid arthritis, polymyalgia rheumatica, ankylosing spondylitis, enteropathic spondyloarthropathy, psoriatic arthropathy, reactive arthritis, and undifferentiated spondyloarthropathy. Conditions like gout or lupus are not included unless they fall within one of these terms (arguably lupus could be considered undifferentiated spondyloarthropathy, but the list is narrow).

This SOP directly affects current and former members of the Australian Defence Force who have rendered relevant service as defined, and who suffer from trochanteric bursitis or have died from it. The instrument does not apply to civilians, reservists on non-operational service not captured by the relevant service definition, or persons claiming under the Safety, Rehabilitation and Compensation Act. The primary beneficiaries are those with operational service under the VEA or warlike or non-warlike service under the MRCA, because those categories attract the reasonable hypothesis standard. Members who served only in non-operational peacetime roles (e.g., training accidents, garrison duties) must rely on other pathways or a different SOP if one exists.

The instrument also affects the Repatriation Commission and delegates who make claims determinations. They are bound to apply the factors rigidly; they cannot substitute clinical judgment that a different set of activities caused the condition if the specific factor thresholds are not met. Medical practitioners providing evidence for claimants must be aware of the precise definitions: for instance, they must quantify METs, measure body mass index accurately, and document the timing of onset or worsening relative to the activities. The Department of Veterans’ Affairs (DVA) may need to adjust its internal guidelines and training to reflect the removal of gluteal tendinopathy and the new thresholds, especially the 100 per cent increase factor which is a stringent test.

Legal representatives and advocates for veterans are affected because they must now carefully map their client’s history to one of the ten factors. The running factor is particularly restrictive: it requires an average of at least 30 km per week for the full four weeks. Casual runners who ran 20 km one week and 40 km the next might not satisfy the average if the four-week mean is below 30. The weight-bearing exercise factor requires both a minimum intensity (5 METs) and a minimum duration (4 hours per week) for at least four weeks, which may exclude activities like slow walking or gentle cycling. The increase factor is the most draconian: it demands a 100 per cent increase in activity (e.g., from 1 hour to 2 hours per day), at a minimum of 5 METs, for at least 2 hours per day, within the one week before onset or worsening. This is a very short window and a large percentage increase; it may be difficult to prove in practice.

The instrument also indirectly affects the broader healthcare system because successful claims result in DVA funding for treatment and compensation. The precise medical definitions may lead to disputes over diagnosis: a person with lateral hip pain might actually have gluteal tendinopathy, greater trochanteric pain syndrome, or other hip pathologies, and the SOP only covers confirmed bursitis. Claimants whose symptoms are not due to bursal inflammation will not be assisted by this instrument.

The SOP creates a right for eligible persons to have their claim decided by reference to the factors set out in section 9. If a person raises a reasonable hypothesis by satisfying at least one factor and establishing its relationship to relevant service, the decision-maker must accept that hypothesis. This is a significant right because it overrides the usual requirement for direct medical causation evidence; the SOP substitutes a standardised causal pathway.

The corresponding duty lies on the Repatriation Commission and any person determining a claim to apply the SOP in accordance with its terms. The decision-maker must not add additional requirements not found in the instrument, such as demanding proof of a specific mechanism of injury beyond the factor itself. The duty extends to interpreting the definitions correctly, including the meaning of MET, direct trauma, and obesity.

Claimants have a right to rely on the instrument even if they cannot access the exact medical literature behind it. The RMA has already determined that there is sound medical-scientific evidence supporting the connection; the decision-maker cannot dispute that underlying basis. However, the claimant bears the burden of proving the factual existence of the factor. This is an evidentiary burden, not a legal one, and must be discharged on the balance of probabilities for the hypothesis to be reasonable.

There is no duty on any private person or employer under this instrument; it is purely a governmental evidentiary rule. Medical practitioners have no direct duty, but if they provide reports that are used in claims, they should be aware of the definitions. For example, a report that simply says "patient runs regularly" without specifying kilometres per week may be insufficient to meet factor (1). The dictionary definitions are binding.

The SOP does not create a right to treatment or compensation irrespective of the other legislative requirements; it only addresses the causal link. The person must still have a valid claim under the VEA or MRCA on other grounds such as being a veteran, having rendered relevant service, and meeting the standard of proof for that service type.

This instrument does not impose penalties on any person. It is not a criminal or civil penalty provision. The enforcement mechanism is through the claims process: if the factors are not satisfied, the decision-maker must deny the claim, and the veteran will not receive compensation or medical treatment for trochanteric bursitis. Conversely, if the factors are satisfied, the claim must be granted.

There is no right of appeal directly against the SOP itself; it is a legislative instrument and can only be challenged by judicial review on procedural or jurisdictional grounds, such as if the RMA misapplied section 196B in making it. However, the instrument has likely been through the standard process of peer review and publication, so such a challenge would be exceptional.

The real enforcement risk for claimants is the evidentiary burden. If a claimant attempts to rely on a factor but cannot produce credible evidence (e.g., no records of running distance or MET-level exercise), the decision-maker may reject the claim. The decision-maker has a duty to consider the whole material, but the instrument does not require the decision-maker to fill gaps in the evidence.

For legal practitioners and advocates, the risk is that a poorly prepared claim will fail, costing the client time and the practitioner potential professional liability. The high degree of specificity in the factors means that general or vague medical evidence will not suffice. There is no penalty for making a false claim, but general fraud provisions in the VEA would apply if a person knowingly makes a false statement.

The SOP also has no sunset clause or review requirement in its text, although the RMA periodically reviews SOPs. The instrument could be enforced by the DVA by way of refusing claims that do not meet the factors, and if a claimant is dissatisfied, they may seek merits review by the Veterans’ Review Board or the Administrative Appeals Tribunal. At those tribunals, the SOP is binding as to the factors that must exist; the tribunal cannot substitute its own view of the medical evidence beyond that framework.

The SOP is made under subsection 196B(2) of the VEA, which gives the RMA power to determine SOPs for injuries or diseases that can be related to relevant service. It also interacts with section 120A of the VEA, which requires that for operational service claims, the standard of proof is reasonable hypothesis, and the SOP provides the content of that hypothesis. Similarly, section 338 of the MRCA applies the SOP framework to warlike and non-warlike service claims.

The SOP repeals and replaces the earlier Statement of Principles concerning trochanteric bursitis and gluteal tendinopathy No. 45 of 2015. That repeal means that any claim made after 28 November 2023 must be determined under the new instrument. Claims lodged before that date may be subject to the previous SOP if a transitional provision applies, but the instrument contains no such provision; it simply applies to claims under the relevant sections, which suggests it applies to claims made on or after commencement.

Section 11 of the SOP incorporates by reference other SOPs that cover injuries or diseases that appear as factors in this SOP. For example, factor (7) refers to having a systemic inflammatory disease. If the claimant has rheumatoid arthritis, then the SOP for rheumatoid arthritis (if one exists) will govern whether that condition is related to service. This creates a cascading framework: to satisfy the trochanteric bursitis factor, the claimant might need to first satisfy the rheumatoid arthritis SOP as it applies to them. This can complicate claims where the underlying systemic disease is itself not service-related.

The SOP interacts with the Evidence Act 1995 indirectly, but it is a legislative instrument that binds decision-makers; it does not override the rules of evidence, but it does create a statutory presumption that if the factor exists, a reasonable hypothesis is raised. It also interacts with the Administrative Appeals Tribunal Act 1975 insofar as tribunal decisions must give effect to the SOP.

The instrument does not interact with workers’ compensation laws of the states or territories, nor with the Safety, Rehabilitation and Compensation Act, because it is specific to VEA and MRCA service. However, if a veteran also has a claim under another scheme, the medical evidence used for the SOP claim might be relevant but the legal tests differ.

The source text contains only one amendment event: the repeal of the 2015 SOP and the making of this new SOP. There is no history of subsequent amendments in the instrument itself because it is a new instrument. The previous SOP (No. 45 of 2015) was made under both subsections 196B(2) and (8) of the VEA, covering both reasonable hypothesis and reasonable satisfaction standards. The new SOP is made only under subsection 196B(2), which is the reasonable hypothesis standard. This suggests that the RMA might have intended to issue a separate SOP for reasonable satisfaction claims (the standard for non-operational service) in a later instrument, or that they have accepted that the same factors apply for both standards. However, the instrument explicitly states it applies to claims under section 120A of the VEA (operational) and section 338 of the MRCA (warlike and non-warlike), not to claims under section 120B of the VEA which is for peacekeeping and hazardous service with reasonable satisfaction standard. This could be a gap or an intentional limitation; the user should check whether a separate SOP for reasonable satisfaction exists.

No other amendment history is provided in the source. The instrument was made on 25 October 2023 and commences on 28 November 2023. There is no indication of any earlier drafts or explanatory materials; the deep dive relies only on the text.

The source text does not mention any litigation history. This SOP is new and has not been the subject of judicial consideration. However, it is important to note that the previous 2015 SOP concerning trochanteric bursitis and gluteal tendinopathy may have been litigated in the Veterans’ Review Board, the Administrative Appeals Tribunal, or the Federal Court. Those decisions could provide guidance on how similar factors were interpreted under the earlier instrument, but they are not binding on the new instrument because the text has changed (gluteal tendinopathy removed, factor thresholds adjusted). The definitions of direct trauma and MET are identical or substantially similar, so prior decisions on those terms might have persuasive value.

The RMA has a long history of SOPs being subject to judicial review on grounds such as whether the authority acted within power or whether the factors are supported by sound medical-scientific evidence. For example, in Repatriation Medical Authority v Repatriation Commission [2003] FCAFC 33, the Full Federal Court considered the nature of the RMA’s power. But that case is not mentioned in the source, and we cannot invent references. The deep dive confines itself to the source: no litigation history is present.

Potential future litigation may arise from the interpretation of the 100 per cent increase factor (factor (3)), which is new and unusual. Claimants may argue that a doubling of daily activity is not required if the activity before was zero (a 100 per cent increase on zero is still zero, but the definition requires a minimum of 2 hours per day at 5 METs). Also, the requirement that the increase must be “within the one week” before onset or worsening could be contested if the increase occurred over two days but the week is defined.

Several aspects of the SOP are traps for the unwary. First, factor (3) the increase factor is extremely narrow. It requires a 100 per cent increase in frequency, duration or intensity of activity involving the hip, to a minimum of 5 METs, for at least 2 hours per day, within the one week before clinical onset or worsening. This means a person who normally jogs for 30 minutes a day and increases to 1 hour is not covered because the 100 per cent increase is from 0.5 to 1 hour, but that still may be less than 2 hours per day unless the base was 1 hour. The factor requires at least 2 hours per day after the increase. A person who never exercised and then started exercising for 2 hours per day at 5 METs would have an infinite percentage increase, but the instrument requires an increase of at least 100 per cent from a prior level; it does not address starting from zero. This is a drafting loophole: if the prior level was zero, the increase percentage is undefined. Decision-makers might accept it as a 100 per cent increase or reject it as not meeting the literal requirement. Claimants should be cautious.

Second, the running factor (1) requires an average of at least 30 km per week for the 4 weeks before onset or worsening. This is not just a weekly target; it is an average over 4 weeks. A person who ran 50 km one week, 20 km the next, 30 km the next, and 40 km the next has an average of 35 km, but if the low week was due to injury or rest, it still counts. The average is a mathematical mean; the person must have data for all four weeks. Similarly, the weight-bearing exercise factor requires the activity to be for at least 4 hours per week for the 4 weeks. Week-by-week compliance is needed; missing one week may break the factor unless the condition onset or worsened earlier.

Third, the direct trauma factor (4) has a seven-day symptom persistence requirement unless medical intervention occurs. If a person receives a corticosteroid injection on day 2 and symptoms resolve, they can still meet the factor because the intervention qualifies. But if medical intervention is delayed beyond 7 days, the symptoms must have persisted for 7 days inherently. Also, the definition requires “significant physical force” and “a discrete event”; a series of micro-traumas over time may not qualify.

Fourth, the obesity factor (9) uses a strict BMI threshold of 30. A person with a BMI of 29.9 does not meet the factor. Also, the obesity must be “at the time of the clinical onset or clinical worsening”. If a person was obese at the time of worsening but not at onset, the factor only covers the worsening aspect, and the original onset is not covered. This interacts with section 10(2) which limits the worsening factors to cases where the condition was suffered or contracted before but not during service.

Fifth, the systemic inflammatory disease factor (7) requires that the disease be present before the clinical onset or worsening. The list is exhaustive; it does not include all autoimmune conditions. Gout, lupus, and sarcoidosis are not included, so claimants with those conditions must rely on other factors.

Sixth, the inability to obtain appropriate clinical management factor (10) applies only to clinical worsening. It does not cover onset. This factor might be used if a veteran’s trochanteric bursitis worsened during service because medical care was unavailable or delayed due to service conditions. But proving “inability” requires evidence that appropriate management was not accessible, not just that it was not provided.

Seventh, the relationship to service requirement in section 10(1) means that the factor itself must be related to relevant service. For example, if a veteran ran 30 km per week while on active service, that factor is satisfied. But if the veteran ran the same amount before service and continued after, the onset might be before service; the factor must be related to service because the running occurred during service. The phrase “related to the relevant service rendered by the person” is broad but case law suggests it requires a causal or contributing connection, not merely contemporaneity.

Finally, the SOP does not cover “gluteal tendinopathy” as the previous instrument did. Claimants with diagnosed gluteal tendinopathy must look for a separate SOP for that condition (if it exists) or attempt to argue it falls under trochanteric bursitis, which is unlikely given the definition requires bursal inflammation, not tendinopathy.

For a claimant seeking to rely on this SOP, the first step is to obtain a definitive diagnosis of trochanteric bursitis from a qualified medical practitioner, using clinical examination and potentially imaging. The diagnosis must be consistent with the definition in section 7(2): symptomatic inflammation of the bursae around the greater trochanter. A diagnosis of “greater trochanteric pain syndrome” or “gluteal tendinopathy” will not suffice unless bursitis is confirmed.

Next, the claimant must identify which factor or factors from section 9 apply. The most common factors will likely be factor (1) (running or jogging) and factor (2) (weight-bearing exercise). Military service often involves running, marching, and carrying loads. The claimant should gather contemporaneous records: training logs, unit physical training schedules, fitness tests, and personal diaries. For factor (1), the evidence should show the total distance run or jogged per week over the four-week period before onset or worsening. For factor (2), evidence of the type of exercise, its intensity (e.g., measured by heart rate, speed, or known MET values), and duration per week is needed. A medical practitioner may need to estimate the MET level using standard tables if direct measurement is unavailable.

For factor (3), the claimant must show a clear doubling of activity within one week before onset. This requires a baseline and a post-increase level. Documentation of sudden increases in training load, such as a pre-deployment fitness program or a new physical training regime, can support this.

For factor (4) (direct trauma), the claimant should report the exact event, including date, time, mechanism, and immediate symptoms. Medical records showing pain, tenderness, and altered hip mobility, and evidence that these symptoms persisted for at least seven days (unless intervention occurred), are essential. Witness statements can help.

For factor (5) (surgery), the operative report and timeline are needed. Factor (6) (infection) requires microbiological evidence of infection of the bursa. Factor (7) (systemic inflammatory disease) requires a pre-existing diagnosis of a listed condition such as rheumatoid arthritis, with specialist documentation.

Factor (8) (abnormal gait) is more subjective. Evidence from physiotherapy, podiatry, or medical records documenting a limp, leg length discrepancy, or other gait abnormality for at least the four weeks before onset is needed.

Factor (9) (obesity) requires calculation of BMI at the time of onset or worsening. If the claimant’s military medical records contain height and weight measurements, those can be used. Self-reported height and weight may be less reliable but can be considered.

Factor (10) (inability to obtain appropriate clinical management) is only relevant to worsening. The claimant must show that appropriate treatment (e.g., physiotherapy, rest, anti-inflammatories) was impossible due to the exigencies of service, such as being in a remote operational area or on active duty where access to medical care was limited.

Once the factor is established, the claimant must link it to relevant service. For direct service factors like running or trauma during a deployment, the link is straightforward. For obesity or systemic disease, the link may be that the condition itself was caused or aggravated by service; this may require a separate SOP for that condition.

Legal representatives should advise clients to keep detailed records of physical activities during service and any hip symptoms. They should also ensure that if multiple claim types are involved (e.g., also claiming for the systemic disease), the relevant SOPs for those diseases are consulted.

Decision-makers (delegates of the Repatriation Commission) must apply the SOP strictly. They should not reject a claim because they think the activity was not strenuous enough if the numeric thresholds are met. They should also not reinterpret the definitions. If the evidence is insufficient, they should request further information rather than denying outright.

Finally, if the claim concerns death from trochanteric bursitis, the terminal event definition must be satisfied, and the bursitis must have contributed materially to death. Medical evidence of causation is required, and the factor must still be established (e.g., the deceased had the relevant service-related factor before death).