Statement of Principles concerning thoracolumbar spondylosis (Reasonable Hypothesis) (No. 13 of 2023)

Administered by Department of Veterans' Affairs

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EXPLANATORY STATEMENT

 

STATEMENT OF PRINCIPLES CONCERNING

THORACOLUMBAR SPONDYLOSIS

(REASONABLE HYPOTHESIS) (NO. 13 OF 2023)

 

VETERANS' ENTITLEMENTS ACT 1986

MILITARY REHABILITATION AND COMPENSATION ACT 2004

 

  1. This is the Explanatory Statement to the Statement of Principles concerning thoracolumbar spondylosis (Reasonable Hypothesis) (No. 13 of 2023).

 

Background

2.             The Repatriation Medical Authority (the Authority), under subsection 196B(8) of the Veterans' Entitlements Act 1986 (the VEA), repeals Instrument No. 64 of 2014 (Federal Register of Legislation No. F2014L) determined under subsections 196B(2) and (8)  of the VEA concerning thoracic spondylosis.

The Repatriation Medical Authority (the Authority), under subsection 196B(8) of the Veterans' Entitlements Act 1986 (the VEA), repeals Instrument No. 62 of 2014 (Federal Register of Legislation No. F2014L00933) determined under subsections 196B(2) and (8) of the VEA concerning lumbar spondylosis.

3.             The Authority is of the view that there is sound medical-scientific evidence that indicates that thoracolumbar spondylosis and death from thoracolumbar spondylosis can be related to particular kinds of service.  The Authority has therefore determined pursuant to subsection 196B(2) of the VEA a Statement of Principles concerning thoracolumbar spondylosis (Reasonable Hypothesis) (No. 13 of 2023).  This Instrument will in effect replace the repealed Statements of Principles.

 

Purpose and Operation

4.             The Statement of Principles will be applied in determining claims under the VEA and the Military Rehabilitation and Compensation Act 2004 (the MRCA).

5.             The Statement of Principles sets out the factors that must as a minimum exist, and which of those factors must be related to the following kinds of service rendered by a person:

 operational service under the VEA;

 peacekeeping service under the VEA;

 hazardous service under the VEA;

 British nuclear test defence service under the VEA;

 warlike service under the MRCA;

 non-warlike service under the MRCA,

before it can be said that a reasonable hypothesis has been raised connecting thoracolumbar spondylosis or death from thoracolumbar spondylosis, with the circumstances of that service.  The Statement of Principles has been determined for the purposes of both the VEA and the MRCA.

6.             This Instrument results from investigations notified by the Authority in the Government Notices Gazette of 2 November 2021 concerning thoracic spondylosis and lumbar spondylosis in accordance with section 196G of the VEA.  The investigations involved an examination of the sound medical-scientific evidence now available to the Authority, including the sound medical-scientific evidence it has previously considered.

7.             The contents of this Instrument are in similar terms as the repealed Instruments.  The Authority has decided to combine the previous statements of principles for thoracic spondylosis and lumbar spondylosis into one statement of principles for thoracolumbar spondylosis Comparing this Instrument and the repealed Instruments, the differences include:

  • adopting the latest revised Instrument format, which commenced in 2015;
  • specifying a day of commencement for the Instrument in section 2;
  • New definition of 'thoracolumbar spondylosis' in subsection 7(3);
  • including ICD-10-AM codes for 'thoracolumbar spondylosis' in subsection 7(6);
  • revising the reference to 'ICD-10-AM code' in subsection 7(8);
  • revising the factors in section 9 to reflect developments in sound medical-scientific evidence.
  • revising the factor in subsection 9(1) and 9(19) concerning being a prisoner of war;
  • revising the factor in subsection 9(2) and 9(20) concerning having an inflammatory joint disease;
  • revising the factor in subsection 9(3) and 9(21) concerning having non-viral infection of the affected joint;
  • revising the factor in subsection 9(4) and 9(22) concerning having an intra-articular fracture of the spine;
  • revising the factor in subsection 9(5) and 9(23) concerning having a spinal condition from the specified list of spinal conditions
  • new factor in subsection 9(6) and 9(24) concerning for lumbar spondylosis only, having a kyphotic abnormality or lordotic abnormality affecting the lumbar spine;
  • new factor in subsection 9(7) and 9(25) concerning having undergone a spinal fusion;
  • revising the factor in subsection 9(8) and 9(26) concerning for lumbar spondylosis only, having leg length inequality;
  • revising the factor in subsection 9(9) and 9(27) concerning having a depositional joint disease;
  • revising the factor in subsection 9(10) and 9(28) concerning having trauma to the thoracolumbar spine;
  • new factor in subsection 9(11) and 9(29) concerning having a penetrating injury to an intervertebral disc;
  • revising the factor in subsection 9(12) and 9(30) concerning having a thoracolumbar intervertebral disc prolapse;
  • revising the factor in subsection 9(13) and 9(31) concerning lifting loads of at least 20 kilograms;
  • revising the factor in subsection 9(14) and 9(32) concerning carrying loads of at least 20 kilograms;
  • revising the factor in subsection 9(15) and 9(33) concerning for lumbar spondylosis only, flying in an engine powered aircraft as operational aircrew;
  • revising the factor in subsection 9(16) and 9(34) concerning being obese;
  • revising the factor in subsection 9(17) and 9(35) concerning having acromegaly;
  • revising the factor in subsection 9(18) and 9(36) concerning having Paget disease of bone involving the thoracolumbar spine;
  • new definitions of 'acromegaly', 'clinical onset',  'imaging evidence of degenerative change', 'lordotic abnormality', 'penetrating injury to an intervertebral disc', 'specified list of depositional joint diseases',   'specified list of inflammatory joint diseases', 'spinal fusion', and 'trauma to the thoracolumbar spine', in Schedule 1 - Dictionary; and
  • revising the definitions of being obese,  leg length inequality, and specified list of spinal conditions,  in Schedule 1 – Dictionary.

 

Consultation

8.             Prior to determining this Instrument, the Authority advertised its intention to undertake an investigation in relation to thoracolumbar spondylosis in the Government Notices Gazette of 2 November 2021, and circulated a copy of the notice of intention to investigate to a wide range of organisations representing veterans, service personnel and their dependants.  The Authority invited submissions from the Repatriation Commission, the Military Rehabilitation and Compensation Commission, organisations and persons referred to in section 196E of the VEA, and any person having expertise in the field.  No submissions were received for consideration by the Authority in relation to the investigation.

9.             On 25 November 2022, the Authority wrote to organisations representing veterans, service personnel and their dependants regarding the proposed Instrument and the medical-scientific material considered by the Authority and representatives of those organisations were also invited to the public meeting where proposed instrument was discussed.  At the 4 December 2022 Meeting of the Authority the factor concerning extreme forward flexion was discussed and the decision was made to remove the factor.  On 27 January 2023 a draft of the proposed instrument with the deletion of factors relating to extreme forward flexion of the lumbar spine was sent to the organisations.  The Authority provided an opportunity to the organisations to make representations in relation to the proposed Instrument prior to its determination.  No submissions were received for consideration by the Authority.

 

Human Rights

10.         This instrument is compatible with the Human Rights and Freedoms recognised or declared in the International Instruments listed in Section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.  A Statement of Compatibility with Human Rights follows.

 

Finalisation of Investigation

11.         The determining of this Instrument finalises the investigation in relation to thoracolumbar spondylosis as advertised in the Government Notices Gazette of 2 November 2021.

References

12.         A list of references relating to the above condition is available on the Authority's website at: www.rma.gov.au. Any other document referred to in this Statement of Principles is available on request to the Repatriation Medical Authority at the following address:

              

Email:    info@rma.gov.au

Post:      The Registrar

Repatriation Medical Authority

GPO Box 1014

BRISBANE    QLD    4001


Statement of Compatibility with Human Rights

(Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011)

 

Instrument No.:   Statement of Principles No. 13 of 2023

Kind of Injury, Disease or Death: Thoracolumbar spondylosis

 

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Legislative Instrument

1. This Legislative Instrument is determined pursuant to subsection 196B(2) of the Veterans' Entitlements Act 1986 (the VEA) for the purposes of the VEA and the Military Rehabilitation and Compensation Act 2004 (the MRCA).  Part XIA of the VEA requires the determination of these instruments outlining the factors connecting particular kinds of injury, disease or death with service such being determined solely on the available sound medical-scientific evidence.

2. This Legislative Instrument:-

  • facilitates claimants in making, and the Repatriation Commission and the Military Rehabilitation and Compensation Commission in assessing, claims under the VEA and the MRCA respectively, by specifying the circumstances in which medical treatment and compensation can be extended to eligible persons who have thoracolumbar spondylosis;
  • facilitates the review of such decisions by the Veterans' Review Board and the Administrative Appeals Tribunal;
  • outlines the factors which the current sound medical-scientific evidence indicates must as a minimum exist, before it can be said that a reasonable hypothesis has been raised, connecting thoracolumbar spondylosis with the circumstances of eligible service rendered by a person, as set out in clause 5 of the Explanatory Statement;
  • replaces Instrument No. 62 of 2014; and
  • reflects developments in the available sound medical-scientific evidence concerning thoracolumbar spondylosis which have occurred since that earlier instrument was determined. 

3. The Instrument is assessed as being a technical instrument which improves the medico-scientific quality of outcomes under the VEA and the MRCA. 

Human Rights Implications

4. This Legislative Instrument does not derogate from any human rights. It promotes the human rights of veterans, current and former Defence Force members as well as other persons such as their dependents, including:

  • the right to social security (Art 9, International Covenant on Economic, Social and Cultural Rights; Art 26, Convention on the Rights of the Child and Art 28, Convention on the Rights of Persons with Disabilities) by helping to ensure that the qualifying conditions for the benefit are 'reasonable, proportionate and transparent'[1];
  • the right to an adequate standard of living (Art 11, ICESCR; Art 27, CRC and Art 28, CRPD) by facilitating the assessment and determination of social security benefits;
  • the right to the enjoyment of the highest attainable standard of physical and mental health (Art 12, ICESCR and Art 25, CRPD), by facilitating the assessment and determination of compensation and benefits in relation to the treatment and rehabilitation of veterans and Defence Force members;
  • the rights of persons with disabilities by facilitating the determination of claims relating to treatment and rehabilitation (Art 26, CRPD); and
  • ensuring that those rights "will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status" (Art 2, ICESCR).

Conclusion

This Legislative Instrument is compatible with human rights as it does not derogate from and promotes a number of human rights.

 

Repatriation Medical Authority

 

 

 

 

 

[1] In General Comment No. 19 (The right to social security), the Committee on Economic, Social and Cultural Rights said (at paragraph 24) this to be one of the elements of ensuring accessibility to social security.

Overview

The Statement of Principles concerning thoracolumbar spondylosis (Reasonable Hypothesis) (No. 13 of 2023), enacted in 2023, aims to address the gap left by the repealed Instruments No. 62 and 64 of 2014 concerning thoracic and lumbar spondylosis respectively. The Repatriation Medical Authority, acting under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA), determined this statement to incorporate the latest medical-scientific evidence regarding thoracolumbar spondylosis. This instrument facilitates the assessment and determination of claims for veterans and Defence Force members by specifying the minimum factors that must exist to raise a reasonable hypothesis connecting thoracolumbar spondylosis with particular kinds of service. The objective is to ensure that the qualifying conditions for benefits are reasonable, proportionate, and transparent, thereby promoting various human rights including the right to social security, an adequate standard of living, and the highest attainable standard of physical and mental health.

Scope and Application

The Statement of Principles concerning thoracolumbar spondylosis (Reasonable Hypothesis) (No. 13 of 2023) applies to individuals who are making claims under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA) related to thoracolumbar spondylosis, a condition affecting the thoracic and lumbar spine. The scope of the legislation encompasses veterans and Defence Force members who have rendered operational, peacekeeping, hazardous, British nuclear test defence, warlike, or non-warlike service. The legislation outlines the minimum factors that must be present, and which must be related to specific types of service, to establish a reasonable hypothesis connecting thoracolumbar spondylosis or death from this condition with the circumstances of the service. The instrument replaces earlier statements of principles for thoracic and lumbar spondylosis, reflecting the latest sound medical-scientific evidence. The Statement of Principles is applicable nationwide, aligning with the jurisdiction of the Commonwealth under the VEA and MRCA. There are no exclusions, exemptions, or thresholds specified in the Act, although the application of these principles may be further refined or extended through subordinate instruments. The legislation ensures compatibility with human rights, promoting the rights of veterans, Defence Force members, and their dependents, including social security, an adequate standard of living, and the highest attainable standard of health.

Key Provisions

The key provisions of the Statement of Principles concerning thoracolumbar spondylosis (Reasonable Hypothesis) (No. 13 of 2023) primarily revolve around the definition of thoracolumbar spondylosis and the circumstances under which it can be connected to particular kinds of military service (section 7). The Statement sets out the factors that must exist for a reasonable hypothesis to be raised, linking thoracolumbar spondylosis or death from thoracolumbar spondylosis to specific military services, such as operational service, peacekeeping service, hazardous service, and others (section 9). These provisions aim to streamline and clarify the process of claiming compensation and medical treatment for veterans suffering from thoracolumbar spondylosis. The obligations imposed by the Act on the parties it governs include the requirement for claimants to provide evidence of service and the existence of the specified factors that link their thoracolumbar spondylosis to their service. The Repatriation Commission and the Military Rehabilitation and Compensation Commission are tasked with assessing these claims based on the criteria outlined in the Statement of Principles. Furthermore, the Authority has the obligation to ensure the compatibility of this Instrument with human rights and to facilitate public consultation before finalising the instrument. There are no specific offences, penalties, or consequences outlined in the Statement of Principles itself. However, breaches of the Veterans' Entitlements Act 1986 (VEA) or the Military Rehabilitation and Compensation Act 2004 (MRCA), under which these principles operate, could result in civil or criminal penalties. For instance, knowingly making a false statement or providing false information in relation to a claim could result in a fine or imprisonment under section 160 of the VEA, with penalties varying depending on the severity of the offence. Additionally, the failure to comply with the notice of intention to investigate or to provide relevant information could potentially impact the claimant's ability to successfully pursue their claim.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.