The Estate of the Late Judith Hartikainen and Military Rehabilitation and Compensation Commission (Compensation)
[2025] ARTA 86
•11 February 2025
The Estate of the Late Judith Hartikainen and Military Rehabilitation and Compensation Commission (Compensation) [2025] ARTA 86 (11 February 2025)
Applicant/s: The Estate of the Late Judith Hartikainen
Respondent: Military Rehabilitation and Compensation Commission
Tribunal Number: 2022/4684
Tribunal:Deputy President O'Donovan
Place:Brisbane
Date:11 February 2025
Decision:The Tribunal sets aside the decision under review and determines that the correct assessment of the applicant’s degree of permanent impairment resulting from her pancreatitis is 20%.
Any costs application should be made by the applicant no later than 25 February 2025.
................................[SGD]..................................
Deputy President O'Donovan
Catchwords
VETERANS' AND MILITARY COMPENSATION – Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 – Guide to the Assessment of the Degree of Permanent Impairment – claim for permanent impairment for pancreatitis – assessment of degree of permanent impairment – whether injury caused permanent impairment – decision under review set aside and substituted
Legislation
Administrative Review Tribunal Act 2024
Judiciary Act 1903 s 55ZG(3)
Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988, ss 5A, 24
Safety, Rehabilitation and Compensation Act 1988 - Guide to the Assessment of the Degree of Permanent Impairment (Edition 2.1), Part 2.Cases
Canute v Comcare (2006) 226 CLR 535
Dranichnikov v Minister for Immigration and Multicultural & Indigenous Affairs [2003] HCA 26Statement of Reasons
The late Judith Hartikainen served in the Australian Defence Force from 8 August 1984 until 23 June 1989. She suffered a serious knee injury while serving. As a result of this injury she underwent some unsuccessful knee surgery, which set in train a slowly unfolding catastrophe. The pain from her knee condition led to significant use of opioid analgesics and depression. From early 2019, the pain and depression led to her abusing alcohol, which placed pressure on several organs. She died in November 2020. The death certificate cites a number of causes of death, including pancreatitis,[1] but it is likely that liver failure was the most significant contributor to her passing.[2]
[1] T-Documents, T10 page 23.
[2] Her husband’s evidence was that when she was discharged from hospital on the last occasion she was ‘sent home to die’ with the understanding that without a liver transplant, her life expectancy was very short.
Her husband and executor, Kenneth Bridges, submitted a number of claims for compensation under the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (DRC Act). Those claims included a claim for a payment for permanent impairment under section 24 of the DRC Act in relation to pancreatitis.
In determining that claim it is necessary to consider section 24 of the DRC Act. It provides for compensation payments to be made where an injury results in permanent impairment. It relevantly provides as follows:
24 Compensation for injuries resulting in permanent impairment
(1)Where an injury to an employee results in a permanent impairment, the Commonwealth is liable to pay compensation to the employee in respect of the injury.
(2)For the purpose of determining whether an impairment is permanent, the MRCC shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee’s condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
(3) Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by the MRCC under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4)The amount assessed by the MRCC shall be an amount that is the same percentage of the maximum amount as the percentage determined by the MRCC under subsection (5).
(5)The MRCC shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6)The degree of permanent impairment shall be expressed as a percentage.
As subsection (5) makes clear, the amount of compensation payable is assessed by reference to an approved Guide. At the time of the claim, the ‘approved Guide’ referred to in subsection (5) was the Safety, Rehabilitation and Compensation Act 1988- Guide to the Assessment of the Degree of Permanent Impairment (Edition 2.1) (PI Guide). I will refer to its terms shortly.
The respondent accepts that when Ms Hartikainen died, she was suffering from pancreatitis and that her pancreatitis met the statutory definition of an ‘injury’ for the purposes of section 24. It concedes that there is sufficient evidence available to me to make a finding that the condition was permanent.[3] I am satisfied on the material available to me that the condition was permanent. Consequently, the only issue to be determined is what degree of permanent impairment Ms Hartikainen was suffering from as a result of her pancreatitis when she passed away in November 2020.
[3] Respondent’s Statement of Facts, Issues, and Contentions dated 30 May 2024 at [42] to [47] (RSFIC).
That question is determined by reference to Table 8.1 of Part 2 of the PI Guide (Table 8.1). It provides as follows.
Table 8.1: Disorders of the oesophagus, stomach, duodenum, small intestine, pancreas, colon, rectum and anus
(Percentage whole person impairment)
% Description of level of impairment 0 Symptoms present but no anatomical loss or alteration. 5 Symptoms and/or signs present and there is anatomical loss or alteration but continuous treatment is not required and weight and nutrition are maintained at normal levels
or
mild incontinence of flatus or liquid stool.10 Objective signs of disease present and at least one of the following:
· dietary modification needed for control
· drugs needed for control
· loss of up to 10% of desirable weight per range on standard BMI chart.
15 Objective signs of disease present and at least two of the following:
· dietary modification needed for control
· drugs needed for control
· loss of up to 10% of desirable weight per range on standard BMI chart..
20 Partial faecal incontinence requiring continual treatment
or
objective signs of disease present and all of the following:· dietary modification needed for control
· drugs needed for control
· loss of up to 10% of desirable weight per range on standard BMI chart..
25 Objective signs of disease present and one of the following:
· dietary modification and drugs produce partial but incomplete control
· loss of 10 to 20% of desirable weight per range on standard BMI chart.
30 Objective signs of disease present and both of the following:
· dietary modification and drugs produce partial but incomplete control
· weight loss of 10 to 20 percent of desirable weight per range on standard BMI chart.
40 Objective signs of disease present with two of the following:
· disturbed bowel habit
· pain (periodic or continual)
· continual manifestations (for example, fever or anaemia)
· weight loss of 10 to 20 percent of desirable weight per range on standard BMI chart.
45 Complete faecal incontinence 50 Objective signs of disease present with all of the following:
· disturbed bowel habit
· pain (periodic or continual)
· continual manifestations (for example, fever or anaemia)
· weight loss of 10 to 20 percent of desirable weight per range on standard BMI chart.
55-75 Objective signs of disease present and a combination of the following:
· severe persistent disturbance of bowel habit
· severe persistent pain
· constitutional manifestations
· weight loss of more than 20 percent of desirable weight per range on standard BMI chart.
· severe limitation of activity
The way in which Part 2 of the PI Guide should be applied is explained in more detail at pages 233 to 237 of the PI Guide. The passage relevant to the determination of this case is as follows:
Evaluation of a whole person impairment is a medical appraisal of the nature and extent of the effect of an injury or disease on a person’s functional capacity and activities of daily living.[4]
[4] PI Guide, page 237.
As should be clear from the foregoing, in assessing the compensation payable under section 24, two causation tests are relevant. It must first be established that the ‘the injury’ – in this case pancreatitis – ‘results in a permanent impairment’ – as set out in section 24(1). In applying the PI Guide it is then also necessary to assess the ‘extent of the effect of an injury or disease on a person’s functional capacity’.
Consequently, to establish that compensation is payable in relation to an injury,[5] and when quantifying the amount payable, it is not sufficient for the applicant to establish that the claimant was exhibiting signs of impairment or symptoms. A causal connection of the kind described above between those symptoms and the injury that is the subject of the claim is necessary. In this case, sorting out symptoms and the underlying ailments which caused them is no easy task. By the time Ms Hartikainen passed, her abuse of alcohol, suicide attempts and long-term abuse of pain killers were producing a wide range of symptoms in multiple organs. Which pathology was the cause of the impairments from which she was suffering was consequently difficult to determine. Only one doctor has attempted that task. I will examine the opinions he expresses shortly.
[5] The injury is the foundation of any analysis of the compensation payable to a person – see the High Court’s decision in Canute v Comcare (2006) 226 CLR 535 at [37] (Gummow A-CJ, Kirby, Callinan, Heydon and Crennan JJ).
Before doing so, however, it is necessary to briefly discuss the evidence which was available to me and set out some brief factual conclusions.
The evidence before me consisted of the following:
·Section 37 & 38AA T-Documents (T1-T31, 1001 pages), as lodged by the Respondent on 2 July 2024 (T-Documents)
·A briefing letter to Dr Halliday dated 25 November 2022 (Exhibit R1)
·A briefing letter to Dr Halliday dated 19 April 2024 (Exhibit R2)
·The full set of briefing materials provided to Dr Halliday on 25 November 2022 (615 pages) (Exhibit R3)
·The full set of briefing materials provided to Dr Halliday on 19 April 2024 (Exhibit R4)
·Statutory Declaration of Mr Kenneth Bridges dated 13 January 2025, including attachments A to D (Exhibit A1)
In addition, Mr Bridges was cross-examined by the respondent.
Dr Halliday gave some brief evidence in chief and answered questions from the Tribunal. He was cross-examined by the applicant’s counsel and re-examined by the respondent’s counsel.
The factual findings below are based principally on the evidence given by Mr Bridges in his statutory declaration and the material included in the T-Documents. Mr Bridges’ evidence was particularly useful as he had the benefit of observing closely the deterioration which his wife suffered in the last few years of her life.
Facts
It is clear from Mr Bridges’ evidence that Ms Hartikainen had long term difficulties with her digestion. That these difficulties were significant is confirmed by the fact that she had her gallbladder removed around the year 2000.[6] That operation was performed well before Ms Hartikainen commenced consuming alcohol, which appears to have been around April 2019.[7]
[6] T-Documents, T9, page 21.
[7] Ibid, T28, page 838; T27, pages 370 and 459.
Mr Bridges gave evidence, which I accept, that following the gallbladder operation, Ms Hartikainen’s diet was the subject of gradual but significant modification. Mr Bridges was responsible for cooking meals in the household and, over time, adapted his wife’s diet to exclude fats, oils and spicy ingredients as these triggered severe abdominal pain and back pain. Despite these adjustments, she remained in pain after meals, often fearing diarrhoea. He observed that his wife underwent significant weight loss over the last five years of her life.[8]
[8] Exhibit A1 at [23] to [26].
Notwithstanding that Mr Bridges took considerable care in the preparation of his wife’s meals, a year prior to her death he discovered that she was avoiding food altogether due to the pain that it caused her. This resulted in weight loss and was accompanied by hair loss, abdominal pain and persistent bowel issues.[9] In the final months of her life, she had abdominal pain which she described as ‘a deep, unrelenting ache in her abdomen, combined with sharp, stabbing episodes that left her incapacitated’.[10] Simple acts like eating or drinking triggered unbearable discomfort, leading her to lose significant weight and causing further deterioration in her physical and emotional state.
[9] Ibid.
[10] Exhibit A1 at [30].
The extent of this weight loss is uncertain. There does not appear to be any record of the applicant’s weight when she was admitted to hospital for the last time in October 2020, but it is known that she was significantly underweight throughout 2019.[11]
[11] T-Documents, T27, pages 339 and 655.
On the evidence available to me, I am prepared to accept that she lost some weight in the final weeks of her life and that this was as a result of avoiding food as a consequence of the abdominal pain she was suffering. When the applicant was discharged from hospital on the last occasion, she was discharged with the medication Temgesic which contains Buprenorphine – a strong pain killer. The notes indicate that it was to be used to treat severe pain from pancreatitis.[12] It is reasonable to proceed on the basis that Ms Hartikainen suffered some weight loss in the weeks following her hospital admission in October 2020.
[12] Ibid, page 930.
It is, however, also clear that Ms Hartikainen was significantly underweight in 2019 and, as Mr Bridges reports, she had been losing weight for many years prior to that. Mr Bridges’ evidence is consistent with the other evidence available. There is a report of digestive difficulties as early as 1988[13] which suggests, when coupled with the fact that Ms Hartikainen had her gallbladder removed, that she experienced digestive issues of various kinds over long periods. By 2019, she was complaining of very significant abdominal pain which was investigated using ultrasound, CT and MRI. Reports that she was under weight or losing weight are littered throughout her medical history.
[13] Exhibit R3, page 20.
In these circumstances, it is not surprising that Mr Bridges does not readily accept any hypothesis that suggests that the severe abdominal and digestive issues which Ms Hartikainen suffered over many years were the product of the heavy drinking in which his she engaged in the final two or three years of her life. Such a hypothesis is highly improbable.
However, accepting that Ms Hartikainen’s abdominal pain and digestive issues were not the result of her drinking late in life, does not compel the conclusion that the cause of the pain was always the pancreatitis which was present when she died.[14]
[14] As evidenced by the death certificate, T-Documents, T10, page 23.
It is important to recognise that Ms Hartikainen’s digestive issues were never fully understood or well-treated. Her heavy use of over-the-counter medicines like Nurofen over many years and the fact that she had her gallbladder removed are all confounding aspects of her history that make drawing definite conclusions posthumously about the causes of her digestive issues extremely difficult.
That being said, it is necessary to make an assessment based on the medical evidence that is available. The best evidence concerning the effects of Ms Hartikainen’s pancreatitis available to the Tribunal are the reports of the respondent’s expert, Dr Halliday.
Dr Halliday
Dr Halliday prepared two reports in relation to Ms Hartikainen’s pancreatitis. I am satisfied that he was a reliable witness. He demonstrated his expertise in gastroenterology and was a candid and careful witness. He made appropriate concessions during cross-examination and, by the time he concluded his evidence, had considered all of the evidence that was available to the Tribunal.
Before turning to his analysis of Ms Hartikainen’s symptoms by reference to Table 8.1, it is worth briefly discussing his conclusion that Ms Hartikainen’s pancreatitis revealed in her medical records was acute rather than chronic.
Mr Bridges’ belief is that Ms Hartikainen must have had chronic pancreatitis, and this explains the symptoms he observed in the five years leading up to her death – abdominal pain, weight loss, loss of appetite and disturbed bowel habit. On this analysis, his wife’s drinking did not cause her pancreatitis and consequently, a wide range of symptoms and impairments which she suffered from over five years can be attributed to chronic pancreatitis, because it developed prior to his wife starting to drink heavily.
Dr Halliday however is very clear that the pancreatitis from which Ms Hartikainen was suffering when she died was an episode of acute pancreatitis induced by the documented very heavy alcohol use which she was engaging in at the time.
Dr Halliday explained in his oral evidence that chronic pancreatitis manifests in the following ways:
·production of steatorrhea or oily diarrhea,
·loss of endocrine function, which may result in diabetes,
·chronic abdominal pain,
·anatomical changes in the pancreas, which can include pancreatic atrophy, pancreatic calcification and pancreatic cysts.
He explained that an episode of acute pancreatitis on the other hand manifests as follows:
·Severe acute illness accompanied by a number of metabolic disturbances, as well as pain, vomiting, etcetera,
·Swollen oedematous pancreas, often with fluid nearby.
If the source of Ms Hartikainen’s long term digestive issues was the pancreas, then damage associated with chronic pancreatitis would be observable from examination of the pancreas. That however is not what the evidence shows, and Dr Halliday was firmly of the view that Ms Hartikainen did not have chronic pancreatitis but suffered episodes of acute pancreatitis as a consequence of her alcohol consumption.
Critical to Dr Halliday’s analysis was the MRI of Ms Hartikainen’s pancreas taken on 25 October 2019. The MRI report is very clear: ‘there are no features to support pancreatitis’.[15] Dr Halliday was clear in his oral evidence that what was observed on the MRI was inconsistent with a damaged pancreas which had been affected by chronic pancreatitis. In contrast, when Ms Hartikainen was admitted to hospital a year later only weeks prior to her death, the evidence on scans was consistent with an episode of acute pancreatitis.
[15] T-Documents, T8, page 20.
This is crucial to any analysis of the symptoms which Ms Hartikainen suffered prior to 2019 when she began to lose weight as a result of limiting and then refusing food. Whatever was disturbing her digestive system, Dr Halliday’s analysis supports the conclusion that it was not pancreatitis.
Dr Halliday’s permanent impairment assessment
Having analysed the kind of pancreatitis which Ms Hartikainen suffered from, Dr Halliday proceeded, in his supplementary report, to assess her degree of permanent impairment by reference to Table 8.1 of the PI Guide. He assessed the applicant as having a 15% whole person impairment as a result of her pancreatitis. He clarified in his oral evidence that the applicant met the following two criteria to support that assessment:
(a)dietary modification needed for control; and
(b)drugs needed for control.
Dr Halliday was not satisfied that the weight loss Ms Hartikainen experienced was linked to or caused by her pancreatitis. He noted in his original report that:[16]
A Dietician review noted poor oral intake and suspected malnutrition due to lack of interest in food and alcohol use as a reason for her continued low weight. It was noted that her ideal weight (68 kilograms) was significantly higher than her observed weight (54 kilograms).
[16] T-Documents, T28, page 839
This explanation of Ms Hartikainen’s issues with eating is perhaps a little glib, but at that stage Dr Halliday did not have the benefit of Mr Bridges’ evidence on the topic of weight loss. Critically though, he did not change his view that Ms Hartikainen’s weight loss was not linked to her pancreatitis even after considering Mr Bridges statutory declaration. This is understandable. Dr Halliday’s view was that the observable pancreatitis was a product of alcohol use which had developed comparatively recently. The weight loss and broader digestive difficulties developed over a longer time frame independent of any evidence of pancreatitis. Dr Halliday conceded that it was possible that the pancreatitis contributed to the weight loss but said he ‘can’t attribute a percentage [of the weight loss] to all the illnesses [Ms Hartikainen] had’.
Accepting Dr Halliday’s view that on the evidence available he could not be satisfied that there was weight loss of any particular amount attributable to Ms Hartikainen’s pancreatitis, most of the assessments above 15% whole person impairment are ruled out.
However, in cross examination Dr Halliday did concede that the pancreatitis ‘is likely to be a contributing factor [to the weight loss]’.
When this conclusion is combined with:
(a)the evidence of Mr Bridges that he observed that his wife lost weight;
(b)This weight loss was the result of refusing food on account of abdominal pain; and
(c)The discharge records which show that Ms Hartikainen was discharged with pain killers to relieve pain from pancreatitis.
I am satisfied that Ms Hartikainen experienced weight loss on account of her episodes of pancreatitis. While that weight loss cannot be precisely quantified, I am satisfied that it would be sufficient to meet the threshold in Table 8.1. In making this finding, I note that the threshold to qualify for an impairment assessment of 20% is not an exacting one. All that is required is ‘weight loss of up to 10% of desirable weight per range on standard BMI chart’. Expressed this way, any weight loss attributable to pancreatitis meets the threshold. The 10% impairment assessment specifies a maximum rather than a minimum that needs to be satisfied.
Given the state of the evidence though, it is impossible to make a finding that any weight loss of 10% or above was attributable to Ms Hartikainen’s pancreatitis.
Assessments at the 30%, 50% and 55-77% level are all ruled out due to non-fulfilment of the weight loss requirement.
An impairment assessment of 25% is ruled out because the weight loss requirement is not met and there never was any dietary modification by Ms Hartikainen to control her pancreatitis.
An impairment assessment of 40% is ruled out because, even though there is evidence that Ms Hartikainen suffered severe pain as well as fevers and anaemia, there is insufficient evidence that these symptoms were the product of pancreatitis. The fact that many of these features were present prior to Ms Hartikainen beginning to abuse alcohol suggest that they were unrelated to the issues with her pancreas which I am satisfied, based on Dr Halliday’s evidence, emerged because of the applicant’s heavy use of alcohol after April 2019.
In those circumstances, the assessment which is best supported by the evidence is a 20% assessment of permanent impairment. Dr Halliday accepts that there were objective signs of pancreatitis present. He accepts that dietary modification was needed for control and in particular Ms Hartikainen needed to reduce her alcohol intake. He also accepted that drugs were needed for control of the condition. The applicant was discharged with the drug Creon in October 2020, which was necessary for control of pancreatitis. Prior to the hearing, Dr Halliday was not convinced that the applicant met the criteria concerning ‘weight loss of up to 10% of desirable weight per range on standard BMI chart’. At the hearing, his evidence shifted slightly to accept that a contribution from pancreatitis to weight loss was likely. When this evidence is combined with Mr Bridges evidence of food refusal by his wife due to abdominal pain and the evidence that pain killers were prescribed in October 2020 to control pain from pancreatitis, I am satisfied that this criterion is met.
I am satisfied that Ms Hartikainen’s degree of permanent impairment resulting from her pancreatitis should be assessed under table 8.1 at 20%.
Issues of procedural fairness raised by the applicant
In the course of the hearing, the applicant’s representative criticised the manner in which the respondent had conducted its case and alleged that it was prejudiced by that conduct. At the end of the hearing on 14 January 2025, I directed the applicant orally, and then later in writing, to advise the Tribunal by close of business 16 January 2025:
(a) whether it considered that the conduct of the application to date meets the requirements of procedural fairness; and
(b) if it considers that the conduct does not, what steps are necessary to remedy any unfairness.
When the direction was made, I only anticipated that the applicant would advise of its position in the short timeframe and it would then be given an opportunity to make submissions in support of that position at a later point. However, the applicant proceeded to make comprehensive submissions on the matter, which were received on 16 January 2025. I then directed the respondent to provide submissions in reply, and advised the applicant that if it wished to it could apply to make further submissions.
The applicant submitted that it had not been afforded procedural fairness in the conduct of the proceedings. It advanced this claim on multiple grounds and set out the steps which it considered were necessary to avoid the breaches identified. The breaches identified can be summarised as follows:
(a) the respondent failed to provide relevant documents;
(b)the respondent failed to pursue proper investigative pathway;
(c)the respondent failed to provide the applicant with a D2020 claim form or accepted a defective one;
(d)the respondent failed to include the Guide to the Assessment of Degree of Permanent Impairment in the T-documents;
(e)the respondent in the course of making its reviewable decision misrepresented medical reports;
(f)the respondent failed to provide briefing letters to doctors for appropriate input from the applicant;
(g)the respondent excluded critical evidence;
(h)the respondent’s briefing of Dr Halliday was flawed;
(i)Dr Halliday gave inadequate consideration of to the evidence; and
(j) the manner of conduct of the proceeding involved a breach of model litigant obligations.
I will deal with each of the applicant’s identified bases in turn, and then consider the applicant’s request that I remit the matter to the respondent for reconsideration, amongst other proposals, which it says would remedy the claimed breaches of procedural fairness.
The applicant’s complaints broadly speaking, fall into two categories. The first is complaints about things which the respondent did not do which the applicant believes it should have done. The second involves complaints about the quality of the briefing of Dr Halliday or the content of his report.
In relation to the first, I note that the applicant has a duty to assist the Tribunal to achieve the Tribunal’s objective of providing an independent review which resolves matters quickly and fairly. The discharge of that duty requires a party to ensure that when matters proceed to hearing, it has raised with the other party and the Tribunal any procedural matters that could render the hearing abortive. If specific documents are required by a party, those documents should be sought from the other party in a timely way. It is inappropriate to hold in reserve a complaint until after both parties’ evidence has closed. It is not procedurally unfair for a party not to have a document if it could have been accessed by requesting it.
In relation to the second issue, the quality or otherwise of an expert report is not a question of procedural fairness. It is a question to be addressed during the course of the hearing. This misconception affects many of the arguments advanced by the applicant.
I will however address each of the specific matters below.
Omission of relevant documents
The applicant submits that the respondent failed to provide information relevant to the reviewable decision. Particularly, it complains that correspondence from Ms Hartikainen’s treating GP, Dr Uddin, dated 12 January 2021, was not included in the T-Documents.[17]
[17] Applicant’s submissions on procedural unfairness dated 16 January 2025 at [4]-[7].
No breach of procedural fairness is established. First, because the material was included in the T-Documents at T25. Second, even if it had not been, the applicant has had almost three years to request a copy from the respondent after having been alerted to its existence.
Lack of proper investigative pathway
The applicant submits that there is no evidence that the respondent followed the proper investigative process in determining both liability and permanent impairment.[18]
[18] Ibid, [8]-[17].
This submission in misconceived. The Tribunal’s review provides a complete merits review on the evidence available to the Tribunal. Whether earlier decisions were well made or poorly made is irrelevant to the question the Tribunal must determine.
In the context of the Tribunal proceedings, the applicant has had over two years to obtain relevant evidence (including evidence from treating doctors) which could persuade the Tribunal that a different decision should be made. The respondent is not required to make the case the applicant wishes to make. Its duty is to assist the Tribunal to meet its statutory objectives.
The process was explained to Mr Bridges on multiple occasions when the matter was being prepared for hearing and was without legal representation. The applicant is now legally represented and has been since approximately August 2024. The applicant has had ample opportunity to get evidence from treating doctors and take the steps necessary to support a more generous assessment of Ms Hartikainen’s degree of permanent impairment. There has been no breach of procedural fairness.
Defective D2020 claim form
The applicant submits that the delegate did not obtain a section of a claim form which is typically completed by the treating doctor.[19]
[19] Ibid, [18]-[22].
The fact that there may have been insufficient consultation with treating doctors prior to the making of the earlier reviewable decision is irrelevant to the question of whether procedural fairness has been afforded in these proceedings. The applicant had an opportunity to obtain evidence from treating doctors but for whatever reason chose not to obtain that evidence.
Misrepresented medical reports
The applicant alleges that Dr Halliday was briefed with reports that were either misrepresentative or unrelated to the condition under review.[20]
[20] Ibid, [23]-[24].
The applicant has had an opportunity to question Dr Halliday in relation to his briefing and make submissions about the adequacy and appropriateness of it. Having a complaint about the quality of the other party’s evidence does not establish a breach of procedural fairness.
Failure to include the Guide to the Assessment of Degree of Permanent Impairment in T-Documents
This criticism is misconceived. The PI Guide is a publicly available document. If the applicant was unsure about how to obtain it, it could have requested a link from the respondent at any time in the last two and a half years. There is no breach of procedural fairness established by the failure to include it in the T-Documents.
Failure to provide briefing letters
The applicant contends that it was a breach of procedural fairness for the respondent to brief its independent medical examiner (IME) without seeking a contribution from the applicant.[21]
[21] Ibid, [26].
Again, this submission is misconceived. There is no legal duty imposed on the respondent to allow the applicant to contribute to the briefing of its IME. The situation may differ if the Tribunal has directed that the parties jointly seek the opinion of an IME, but no such direction was made. The applicant had an opportunity to challenge the briefing of Dr Halliday and did so at the hearing. It also put additional material to Dr Halliday at the hearing. If it wished to brief an alternative IME, it had an opportunity to do so but elected not to proceed in that manner.
No breach of procedural fairness has been established.
Exclusion of critical evidence
The applicant alleges that a procedural fairness obligation was breached as a result of key evidence being omitted from the briefing of Dr Halliday.[22]
[22] Ibid, [29].
The applicant had an opportunity at the hearing to put further material to Dr Halliday and explore with him whether it changed his opinion. Equally, the applicant had an opportunity to brief another endocrinologist and have him or her consider any material it considered relevant.
The applicant also had an opportunity to attack the validity of Dr Halliday’s report at the hearing on the basis of inadequate briefing.
Any deficiencies in briefing create a risk for the party seeking to rely upon the report. They do not in and of themselves constitute a breach of procedural fairness. Given that the applicant could take steps to address the perceived deficiencies in the briefing of Dr Halliday, I am satisfied that there was no procedural unfairness arising from the manner in which he was briefed.
Flawed briefing process for Dr Halliday
The applicant’s view is that the briefing of Dr Halliday was also flawed because there were questions it wanted the respondent to ask, which it notified to the respondent, but which the respondent did not put to Dr Halliday.[23]
[23] Ibid, [29].
By way of background, it should be noted that the Tribunal made directions which allowed the applicant to provide the respondent with material and questions for the respondent to consider prior to briefing Dr Halliday. The Tribunal made these directions at a time when the applicant was unrepresented and when there was some prospect that if Dr Halliday were briefed co-operatively, his report may assist in resolving the matter. However, the Tribunal’s directions fell short of directing the respondent to put the questions raised by the applicant to Dr Halliday. The respondent elected not to include those questions in Dr Halliday’s brief.
This failure, while perhaps regrettable in hindsight, does not constitute a breach of procedural fairness. The respondent is entitled to form its own view as to what questions should be put to an IME and what material should be briefed. If it asks wrongly targeted questions and gets an unhelpful or unsound report as a result, that is a risk which the respondent takes.
If the applicant forms the view that the report is wrong or insufficient, it must be given an opportunity to test the report and to obtain a responsive report. Both of these opportunities were provided to the applicant.
The applicant in the course of the hearing has criticised the report of Dr Halliday. Those criticisms have been considered. The applicant had an opportunity to brief another expert. That is sufficient to afford procedural fairness.
Inadequate consideration of evidence
The applicant submits that Dr Halliday was briefed with incomplete evidence concerning the extent of Ms Hartikainen’s impairments due to an inability to examine or assess Ms Hartikainen and an inability to speak to Mr Bridges.[24]
[24] Ibid.
As Ms Hartikainen passed away soon after the claim was lodged, it is difficult to discern any procedural unfairness in proceeding to make an assessment in the absence of that assistance. It could not have been obtained.
Insofar as Dr Halliday’s report was deficient as a consequence of insufficient input from Mr Bridges, the obvious remedy was for Mr Bridges to provide a witness statement, testifying to relevant details in a timely way, to allow the respondent to put those matters to Dr Halliday.
Regrettably, the applicant did not do that. Despite directions from the Tribunal (extended on multiple occasions) directing the applicant to file all of the evidence on which it intended to rely by specified dates, the applicant only produced a statement from Mr Bridges less than one business day prior to the commencement of the hearing.
There is no procedural unfairness in the respondent filing the report from Dr Halliday that it did based on the briefing material that it provided to him. If the applicant had complied with Tribunal directions, Dr Halliday would have had a better opportunity to consider additional evidence.
There is no procedural fairness issue which arises from Dr Halliday’s failure to speak with either Ms Hartikainen or Mr Bridges.
Breach of model litigant obligations
The applicant complains that the respondent and its representatives, by their conduct described previously in these reasons, have breached their model litigant obligations.[25]
[25] Ibid, [30].
In light of s 55ZG(3) of the Judiciary Act 1903 it is not appropriate for me to consider these allegations in detail. I do, however, observe that the respondent obtained a report from an expert who was of great assistance to the Tribunal. It need not have done so given that the applicant did not have an expert report that quantified Ms Hartikainen’s degree of permanent impairment.
The report obtained remains the best evidence that there is that Ms Hartikainen suffered a compensable impairment from pancreatitis and is entitled to significant compensation under the DRC Act. The resulting report meant that the hearing before the Tribunal proceeded on the basis that the applicant was entitled to a significant amount of compensation; a very different scenario to the one the applicant was facing when the reviewable decision was made.
It is inappropriate for the applicant to suggest that the respondent has breached its model litigant obligations in circumstances where it has provided to the Tribunal the most useful medical evidence available which supports the conclusion that significant compensation is payable to the applicant. A standard of perfection is not required to meet the model litigant obligation. The applicant has had opportunities to remedy any perceived deficiencies in the report obtained by the respondent. There is nothing identified by the applicant about the conduct of the respondent which warrants adverse comment.
It is important for the applicant to remember that ‘[T]he function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances’.[26] It is not the case that the respondent is obliged to make the applicant’s case for it.
Steps necessary to remedy unfairness
As should be clear from the conclusions above, I am not satisfied that there has been any breach of procedural fairness in the conduct of the matter to date. The applicant has had a fair opportunity to assemble its own evidence concerning the degree of impairment suffered by Ms Hartikainen and to test the credibility of the evidence provided by the respondent. It was always an option for the applicant to obtain reports from treating doctors and IMEs. For whatever reason, it chose not to pursue that course. In those circumstances it would be inappropriate to remit the matter for further consideration.
The applicant also submits that to remedy the claimed breaches of procedural fairness, Mr Bridges should be given an opportunity to provide additional evidence, including evidence in chief.
To understand how unreasonable this proposition is, it is necessary to set out some background facts.
On 13 August 2024, the Tribunal directed as follows:
On or before 18 October 2024, the applicant must lodge with the Tribunal and give to the respondent:
a.All further evidence on which she intends to rely; and
b.…
The deadline for filing was extended twice, to 16 December 2024.
Despite this direction, no statement from Mr Bridges was filed by the deadline. Instead, a statutory declaration was filed on the last business day prior to the commencement of the hearing. At that point, as a consequence of s 66 of the DRC Act, the statutory declaration could only be tendered with leave of the Tribunal.
The price of leave being granted was that no additional evidence would be lead from the witness. It would have been procedurally unfair to the respondent for further material to be received orally when no notice of that evidence had been given. Had the applicant given proper notice about the matters on which he wished to give oral evidence when he had the chance, an opportunity would have been forthcoming.
Given how events unfolded, there is no breach of procedural fairness in refusing the applicant’s request to give further oral testimony.
My reasons for rejecting the applicant’s other steps said to be required to remedy the claimed breaches of procedural fairness and the model litigant obligation follow from explanations given earlier in these reasons. I am satisfied that there has been no breach of procedural fairness in the conduct of proceedings to date and there is no legal impediment to me making a decision in relation to the application.
Decision
The decision under review is set aside and a decision that the applicant is entitled to a payment of compensation for permanent impairment arising from Ms Hartikainen’s pancreatitis injury is substituted. I assess her degree of impairment at 20% in accordance with Table 8.1 of Part 2 of the PI Guide.
Costs
In relation to costs, I do have a discretion to award the applicant costs as a result of the more favourable decision I have made in relation to its claim. However, I will not make an order for costs at this point, but will allow the applicant until 25 February 2025 to make an application for a costs order in light of these reasons for decision. If the respondent wishes to be heard on the appropriate costs order, notice of its desire to do so should be given by 4 March 2025.
Date(s) of hearing:
13 and 14 January 2025
Date final submissions received: 31 January 2025 Solicitors for the Applicant: Workplace Law Group Counsel for the Respondent Ms S. Wright Solicitors for the Respondent: Australian Government Solicitor
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