Further compensable injuries following patellectomy

1. In relation to the first issue, I am satisfied that I do not have jurisdiction to deal with it. This application was made in response to a reviewable decision which dealt with the question of compensation for permanent impairment. Whether Ms Hartikainen's surgery gave rise to other compensable injuries is not a question I have jurisdiction to consider.[8]

Does s 39(14) bar compensation when total incapacity did not arise for many years after 1988

1. The respondent contends that s 39(14) becomes relevant as a consequence of s 124(3) of the DRCA. Section 124(4) is also relevant.
2. Section 124(3) of the DRCA relevantly provides as follows:

A person is not entitled to compensation under section 24 or 25 in respect of a permanent impairment...being an impairment...that occurred before the commencing date [1 December 1988], if:

(b) the person was not entitled to receive compensation of a lump sum in respect of that impairment...under the 1971 Act as in force when the impairment...occurred.

The amount of compensation (if any) that a person is, by virtue of this section, entitled to receive under section 24 or 25 in respect of a permanent impairment, ... being an impairment ... that occurred before the commencing day, shall be the same as the amount of the compensation that would have been payable to that person, if this Act had not been enacted, under...the 1971 Act as in force when the impairment ... occurred.

1. The respondent contends that Ms Hartikainen was not entitled to receive compensation of a lump sum in respect of her knee impairment under the 1971 Act when she made her claim for permanent impairment on 7 November 2020. She was not entitled to receive that compensation because of section 39(14) of the 1971 Act which provides as follows:

An amount of compensation referred to in this section is not payable in respect of an injury so long as the employee is, or is likely to become, totally incapacitated for work where the incapacity for work results, or, if it occurs, will result, in whole or in part from that injury.

2. It is common ground between the parties that Ms Hartikainen gave up work in 2011 as a consequence of pain in her knee.[9] She was paid incapacity payments from 2011 until 2020. Those payments were supported by a report dated 1 May 2012 from orthopaedic surgeon Professor Frederick Ehrlich who reported that she was wholly incapacitated for work due to her accepted left knee condition.
3. The source of analytical difficulty in this matter is that Ms Hartikainen was entitled to lump sum compensation under the 1971 Act during periods when she was not totally incapacitated for work. She was not totally incapacitated for work from 1988 through to 2010. It was only in 2011 that she became totally incapacitated for work and potentially subject to the operation of s 39(14) in the 1971 Act. She remained totally incapacitated for work when she made her final claim (and the claim subject to review in these proceedings) in 2020. The applicant identifies that this raises an issue about whether the fact that there were periods post-1988 when Ms Hartikainen was entitled to lump sum compensation under the 1971 Act affects her entitlement when section 124 of the DRCA is considered.[10]
4. The applicant is not the first person to raise queries about how s 124 interacts with s 39(14). In Razmovski v Telstra Corporation Ltd (1997) 24 AAR 544 (Razmovski), Sackville J analysed s 124(3). He noted that whether a person was 'not entitled to receive compensation of a lump sum' might be answered differently over time as a claimant's level of capacity changed. On that basis he was satisfied that s 123(3)(b)(iii) had a narrow operation. It only engaged the exclusion in s 39(14) when a claim related to an impairment that was not covered by the table of maims set out in section 39(4) of the 1971 Act, rather than to exclude impairments covered by the table that might at some point not qualify for lump sum compensation. On this analysis s124(3) combined with s 39(14) would not operate to exclude the applicant from compensation.
5. However, Sackville J went on to conclude that even though compensation was not excluded altogether by s124(3), when assessed by reference to the cap provided for in s 124(4) the amount of compensation payable was nil once s 39(14) was applied. The difference in result as between the two sections can be explained as follows. The test in subsection (3) is whether 'the person was not entitled to receive compensation of a lump sum in respect of that impairment...under the 1971 Act as in force when the impairment...occurred'. The point in time when the entitlement is to be assessed is not clearly specified. In light of that uncertainty s 124(3) of the SRC Act needed to be read down.
6. Sackville J also considered the operation of s 124(4). Section 124(4) of the DRCA provides that the amount of compensation (if any) that a person is, by virtue of s 124, entitled to receive under section 24 or 25 in respect of a permanent impairment, shall be the same as the amount of compensation that would have been payable to that person, if the DRCA had not been enacted under the 1971 Act. The use of 'is' grounds the assessment in the present, in a way that the past tense 'was' does not. Consequently, Sackville J was satisfied that the claimant's entitlement should be assessed at the point of claim to determine if the exclusion in s39(14) operated. The result was the claimant's compensation entitlement was nil.
7. The analysis in Razmovski has much to commend it. It wrestles with the temporal issue that the different wording in ss 124(3) and (4) raises. It was however the subject of appeal. The appeal is reported as Hoyle v Telstra Corporation Ltd (1997) 75 FCR 390. The Full Court did not share Sackville J's concern that the different wording as between subsection (3) and (4) produced different outcomes when the subsections were applied. The Full Court was satisfied that both subsections (3) and (4) engaged s 39(14) of the 1971 Act and operated to disentitle the applicants from lump sum compensation under the Safety, Rehabilitation and Compensation Act 1988 (which is not materially different from the DRCA).
8. Consequently, there is clear support for the conclusion that Ms Hartikainen's total incapacity for work at the time of her claim has the consequence that she is not entitled to receive compensation of a lump sum under the 1971 Act. Further, if Ms Hartikainen's entitlement to a lump sum under s 39 is calculated as at the date of the claim,[11] and s 39(14) is applied, the amount she is entitled to is zero.
9. Her claim was made in 2020 at a time when she was totally incapacitated for work.[12] The exclusion in s 39(14) makes it clear that 'compensation ...is not payable... so long as the employee is...totally incapacitated for work...'.
10. In these circumstances s 124(3) excludes the applicant from entitlement to compensation for permanent impairment under the DRCA and s 124(4) produces the result that the applicant's entitlement to compensation is capped at zero
11. In Razmovski, Sackville J confirmed that the assessment of amount should be undertaken 'at the time of the claim' not at the point in time when the impairment became permanent. He confirmed that s 39(14) must be applied.[13]
12. Consequently, because Ms Hartikainen was totally incapacitated at the time of her claim in 2020 and s 39(14) of the 1971 Act operated to exclude the payment of any lump sum in circumstances when a person was totally incapacitated, the applicant has no entitlement to lump sum compensation under sections 24 or 25 of the DRCA or any other provision in relation to Ms Hartikainen's impairment that was permanent prior to 1 December 1988.

Was the impairment claimed in 2020 a different impairment from the permanent impairment recognised in September 1988?

1. As a result of the answer to the previous question, the only way the applicant can obtain a lump sum is if the left knee impairment assessed as permanent in September 1988 is a different permanent impairment to the impairment the subject of the claim in 2020. If Ms Hartikainen developed a new impairment after 1 December 1988 the exclusion in s 124(3) and the cap in s 124(4) will not apply because the impairment had not 'occurred before the commencing day' of the DRCA.
2. In determining whether a new impairment occurred after the commencing day some established legal principles must be followed. The relevant principles can be summarised as follows:

(a) An employee can be assessed for compensation under s 24 of the DRCA if they suffered an impairment before 1 December 1988 which did not become permanent until after 1 December 1988 (Comcare v Levett (1995) 60 FCR 14, 23); > > (b) An employee with a pre-DRCA permanent impairment can be assessed under s 24 of the DRCA if they suffered a different permanent impairment after 1 December 1988 (Department of Defence v West (1998) 85 FCR 491); > > (c) Where a change in a permanent impairment occurring after the commencement date is such that, quantitatively and qualitatively, it is properly to be characterised as a further or new impairment occurring after the commencing date it can be assessed under s 24 of the DRCA (Department of Defence v West (1998) 85 FCR 491, 512) > > (d) a change in the underlying patho-physiology of a condition or a significant worsening of an impairment which is likely to have come about as a result of that change might be a relevant factor in determining whether the permanent impairment that the respondent suffered at the point of assessment was the same permanent impairment as that which he or she had suffered as at or prior to 1 December 1988 (Department of Defence v West (1998) 85 FCR 491, 506); > > (e) Mere worsening of, or an increase in symptoms, will not constitute a new or distinct impairment (Comcare v Maida [2002] FCA 1284, [28]).

1. Set out below are my findings of fact as well as a summary of the medical evidence. The facts are largely uncontentious and are mostly drawn from documents in the T Documents.
2. The evidence on which my findings are based consist of the following:
   • T-Documents (2022/2106), documents T1 to T46, pages 1 to 411;
   • Statement of Kenneth Bridges, including annexures KRB1 - KRB10;
   • Report of Dr Christopher Bell, orthopaedic surgeon concerning left knee condition, including letter of instruction dated 19 November 2025;
   • Report of Dr Christopher Bell, orthopaedic surgeon concerning lumbar spondylosis, including letter of instruction dated 19 November 2025;
   • Supplementary report of Dr Christopher Bell, orthopaedic surgeon including email requesting clarification dated 3 December 2025;
   • Report of Dr Simon Journeaux, consultant orthopaedic surgeon, including letter of instruction dated 24 May 2023;
   • Supplementary report of Dr Simon Journeaux, consultant orthopaedic surgeon, including letter of instruction dated 8 May 2024;
   • Supplementary report of Dr Simon Journeaux, consultant orthopaedic and trauma surgeon, including letter of instruction dated 12 January 2026;
   • Extract of s 26 bundle (2022/2106), pages 4-13.
3. A hearing was conducted over 2 days. Ms Hartikainen's husband gave evidence about his observation of his wife's condition in the period in which he knew her up until her death. I discuss my approach to that evidence further below. I also considered post-hearing submissions from the applicant. For the most part I have based my findings on what is revealed in the documents rather than on the evidence of witnesses about events many years in the past. Where a finding is contentious, I have referenced the evidence on which the finding is based.

1. The applicant had issues with her left knee prior to enlisting in the ADF. She underwent a left lateral meniscectomy in 1980, arthroscopies on the left knee in 1980 and 1981 and an arthroscopy scar revision in 1982 which revealed minor fissuring of the left lateral femoral condyle which was consistent with previous surgery.[14]
2. In August 1986 while serving, she experienced knee pain in her left knee whilst playing netball.[15] She reported the pain on 22 September 1986.[16] After an arthroscopy a surgeon recommended that she undergo a patellectomy of the left knee. The procedure involved the removal of the left knee cap. It was a common enough procedure at the time. It is not a procedure that is performed anymore. It alters the mechanics of the knee joint and leads to adverse consequences in the short and long term. She underwent the surgery on 10 April 1987.[17] The results of the surgery for Ms Hartikainen were not good.[18]
3. In an inpatient summary dated 19 May 1987 the following is recorded:

Post operative course was characterized by unexpectedly prolonged post-operative pain and discomfort. On removal of the cast there was gross wasting of the muscles of the thigh and calf ... preventing ... LCPL Hartikainen having complete control of her leg. She also complained of quite extreme pain in the knee with flexion.[19]

1. Following the surgery there are references in the medical notes to falls, the applicant being unable to do physical training, doctors exempting Ms Hartikainen from marching or drills, doctors noting that Ms Hartikainen is unable to play active sport or do strenuous activities like running, jumping or squatting, and notes recording that the knee is unstable and that there is marked wasting of her quadriceps.[20]
2. On 6 July 1987 Ms Hartikainen submitted a claim in relation to the injury. In the claim she described the injury as a 'Patellectomy L Knee on 10/4/87'. In the claim form the injury was said to have occurred in August 1986 during a game of netball.[21]
3. The claim was accepted under the 1971 Act.[22]
4. She was seen by orthopaedic surgeon Brian Davie on 14 December 1987. He recorded the following history:

Prior to the knee accident in August 1986 when she was playing Netball with the Army the knee clicked while running and she developed a pain over the antero-medial part of the knee and the same day she saw a doctor who applied a cold compress and examined her. At the time this accident occurred in Melbourne and the knee became very swollen and she went back to the Country and attended her Local Doctor. The knee recovered fairly quickly and in particularly the swelling went down but she continued to have pain under the knee cap and she eventually saw an Orthopaedic Surgeon in Albury who carried out an Arthroscopy and told her that portion of the inner cartilage had been removed. > > ... > > After the arthroscopy the pain continued around the knee-cap and there were times when she had to sit down and burst in to tears because of pain. She saw another Orthopaedic Surgeon who carried out a patellectomy on the 10 April 1987. She said that after this operation she slipped over about three weeks after the operation and the knee became stiff and painful again and she had difficulty in regaining movement and a manipulation to the knee was done towards the end of June 1987. > > When seen on the 14 December 1987 she complained that she was unable to run and the knee continued to give way. There was pain over the front of the knee and some swelling but the range of movement was good. She was unable to play sport but she was working and doing a desk job as a Travel Agent in the Army... > > On examination...the medial, lateral and cruciate ligaments were satisfactory and there was a full range of movement in the knee but the quadriceps bulk was diminished. > > This lady appears to suffer from the condition of anterior knee pain due to sub-luxation on the patella. This would have been a condition present prior to the accident. The effects of the accident in 1986 did produce considerable pain and swelling and therefore would have aggravated this underlying condition of the patella. The Defence Department would appear to be liable for her problems as an aggravation of pre-existing problem. The effects of the condition continued to operate and in fact the patella has been removed. In my opinion she is fit to work doing clerical duties and I wouldn't place any restrictions on this type of work. She would be unable to play active sport or to do strenuous Army activities involving running, jumping or squatting.[23]

5. The surgeon considered that the effects of the aggravation of the applicant's knee issues were permanent as the aggravation led to the removal of the patella. He noted:

Patellectomy results in a permanent weakness in the knee such that the disability is in the order of 20% loss of function in the affected lower limb.[24]

6. After the claim was accepted, the Department of Defence notified Ms Hartikainen that medical evidence indicated that she had an entitlement to a lump sum award in respect of a 20 percent loss of the efficient use of the left leg at or above the knee.[25]
7. The letter explained to Ms Hartikainen that if she decided to apply for a lump sum under the 1971 Act that she would automatically lose entitlement to weekly payments in respect of periods of partial incapacity for work under s 46 of the 1971 Act.
8. Ms Hartikainen thought about the issue and wrote with a query to the Department. In response the Department advised that if a lump sum award were made 'an employee is entitled to claim further lump sum in respect of any additional loss'.[26] Ms Hartikainen declined lump sum compensation.
9. On 29 August 1988 the Department of Veterans' Affairs prepared a medical opinion in relation to the claim to assess the impairment arising from the condition. The applicant was diagnosed with chondromalacia patellae. The definition of that condition is stated to be 'abnormal softening of the articular cartilage of the patella. The cartilage becomes soft, spongy and dull, and may become roughened and cracked. Osteoarthritis may later supervene.'[27]
10. Ms Hartikainen left the Army on 23 June 1989 and worked in various jobs, including as a telephone salesperson, a deli owner, and a hospital ward. In 1998 she retrained as a registered nurse.[28] Her knee condition slowly worsened and by 2007 she was reporting a worsening of symptoms.
11. On 3 September 2007 the applicant underwent a 'Lower Limb Condition - Medical Impairment Assessment'. Dr Kumar from the Forest Alake Village Medical Practice was advised of the following symptoms:

Pain Lt Knee joint, gives way without aggravation.[29]

12. Pain was said to be experienced 'more at bedtime; on prolonged standing'. She advised that she sometimes requires the support of one or both hands to rise from the sitting position and 'at times will have to move the leg to lift herself up'. She reported that she had a limp and her gait is always guarded. Her walking distance was restricted to 50 meters by pain. On stairs she reported having to go slow and needing to hang on the rails and go one step at a time.[30] The symptoms were said to be solely due to left chondromalacia patellae.[31] The left knee was reported as deformed with atrophy of the muscles. She reported that she 'hasn't been able to exercise since the incident'.[32]
13. By 2011 Ms Hartikainen had to stop work. An MRI on her left knee was taken on 8 August 2011. The report noted '[m]oderate lateral compartment degenerative changes are present with areas of full thickness chondral thickening and subchondral oedema involving mid femoral weight bearing surface'.[33]
14. When her medical impairment was assessed again on 12 August 2011 Ms Hartikainen reported 'extremely severe daily pain which has caused her to leave aged care work'.[34] She also reported 'difficulty with stability L knee may cause falls, cries with pain and then requires assistance. Recent incident has made her reluctant to return to local shop. Looks for wall to support herself when out'.[35]
15. From 2011 until her death in 2020 the Ms Hartikainen was consistently assessed as wholly incapacitated for work as a consequence of her knee condition.
16. She was examined by Professor Frederick Ehrlich on 1 May 2012. In his report he records the following relevant history:

[Ms Hartikainen] joined the Army in 1984 and her work was largely involved in organising travel but in 1986 she was ordered to play a netball game even though she was reluctant to do so in view of her past knee injury. Nevertheless she did play and recalls experiencing a pop in her left knee. It quickly swelled and she had to have an arthroscopy done but the knee remained painful and in 1987 she had a left patellectomy. > > Since that time she has been very much worse. > > She recalls having a fall soon afterwards because the knee buckled under her and she had to have another arthroscopy done. > > She finally left the Army in 1989 and trained as a Nurse working in nursing in spite of her ongoing left knee problems. > > ... > > She is in constant severe pain with the left knee feeling weak and often buckling under her. For the last ten months she had been using a cane to walk about and she takes large amounts of analgesics every day.[36]

17. Professor Ehrlich was satisfied that Ms Hartikainen was wholly incapacitated for work by her accepted condition.
18. A rehabilitation report dated 14 December 2012,[37] sets out the history as reported by Ms Hartikainen of those symptoms and difficulties arising from the left knee condition.
19. In a 15 July 2013 report, Dr Lawrie writes 'Ms H reported terrible chronic knee pain ever since the patellectomy in 1987.'
20. In 2014 Ms Hartikainen made a claim for compensation for permanent impairment.
21. On 29 August 2014 Ms Hartikainen submitted a Non-Economic Loss questionnaire. She reported:

Since my knee cap was removed in April 1987 I have a markedly reduced tolerance for mobility related activities. I am restricted in the distances I can walk and stand and have to be cautious when driving due to the effects of the pain medication I take, and therefore I am always reliant on other people to travel...I require my partner's assistance when traversing stairs or uneven surfaces and have to be especially careful of slippery surfaces. It would be more often than not I require his assistance to gently manipulate my injured knee to loosen it sufficiently for me to get out of bed as my leg stiffens due to the long term effects of the injury to my knee.[38]

22. The applicant's loss of efficient use of her left lower limb was assessed at 22% by a Compensation Medical Adviser on 10 October 2014.[39]
23. Despite that assessment (as previously noted) that claim was refused on 25 November 2014 on the basis that compensation was not payable under the 1971 Act by virtue of s 39(14).[40]
24. A fresh claim for permanent impairment was lodged in November 2020. This was refused initially and then again on internal review, on the same basis as the earlier refusal in 2014. Following the application to the Administrative Appeals Tribunal (and after Ms Hartikainen's death) the respondent obtained a further medical opinion.
25. On 24 May 2023 Dr Simon Journeaux, consultant orthopaedic surgeon prepared a report based on the papers he was briefed with. He prepared a supplementary report on 8 May 2024. Only the second report dealt with the applicant's left knee impairment. He prepared a third report dated 12 January 2026 responding to the applicant's evidence in relation to the knee. He gave oral evidence at the hearing of this matter and was cross-examined.
26. His assessment was that Ms Hartikainen had a permanent impairment in her left knee as a result of her accepted injury before 1 December 1988. He concluded that she continued to suffer from that same impairment in 2011. He concluded:

It is my view that the condition [the applicant suffered from in 2011] was the same knee condition [suffered prior to December 1988].[41]

27. He also reported that there was no evidence of a new or distinct permanent impairment that developed after 1 December 1988.[42]
28. In his January 2026 report, Dr Journeaux considered the views of Dr Bell (discussed below). In particular he was asked to comment on Dr Bell's view that by 2011 there was a new and distinct impairment. Dr Journeaux concluded:

Considering all the medical evidence, I would believe the permanent impairment that resulted in Ms Hartikainen's aggravation of recurrent subluxation of left patella leading to patellectomy from 2011 onwards represented a gradual worsening of the impairment that was permanent before 1 December 1988...I would believe the osteoarthritis and quadriceps deficiency contributed causally in leading to a progressive decline in Ms Hartikainen's left knee and represented a gradual worsening of the aggravation of recurrent subluxation of left patella leading to patellectomy.[43]

29. Dr Journeaux was cross-examined on this issue. He accepted that Ms Hartikainen's knee worsened by 2011 (hence the assessment of 30%) but he did not accept that there was any new impairment that was different from the permanent impairment evident before 1 December 1988.
30. For the purposes of the hearing the applicant also obtained an independent medical report. The report relied upon by the applicant was prepared by Dr Christopher Bell, orthopaedic surgeon. He prepared two reports dated 19 November 2025 and a supplementary report dated 3 December 2025.
31. Dr Bell took a different view of Ms Hartikainen's condition. Based on the imaging, his view was that Ms Hartikainen's pain was more from joint instability as a result of a quads deficiency, resulting from chronic patellar tendinosis and quadriceps overload due to extensor lag from loss of the patella.[44]
32. Dr Bell concluded that Ms Hartikainen had an impairment that was permanent prior to December 1988. He described the nature of the impairment prior to 1 December 1988 as one involving persistent pain, loss of full extension and the giving way of the knee. He considered it likely that this would have resulted in approximately 10-20% impairment. In relation to Ms Hartikainen's condition post 2011 he concluded that the 'patellectomy in 1988 contributed to arthritis and deterioration in the remaining patella tendon. These conditions were new but resulted significantly from the surgery in 1988'.[45]
33. He concluded that the condition causing Ms Hartikainen's progressive decline post 2011, that being osteoarthritis and quadriceps deficiency were distinct from the pre-1988 impairment, where the assessment was based on post-patellectomy in a young person without these later degenerative changes. This conclusion was said to be supported by 'Increasing pain, use of a cane, and decreased mobility all indicat[ing] progression of her knee pathology'.[46]
34. A 30% whole person impairment was assessed under Table 9.5. Dr Bell considered that the majority of the left knee symptoms from 2011 onwards were iatrogenic [caused by the surgery] in nature' because patellectomy places the knee at a mechanical disadvantage, placing strain through the joint and contributing to degeneration.[47]
35. Dr Bell summarised his opinion as follows:

If the accepted claim was recurrent subluxation of left patella and the netball injury was classed as an aggravation leading to patellectomy, then this condition would be distinct from the condition causing progressive decline following 2011 which would be instead osteoarthritis and progressive quadriceps deficiency. This decline would represent a new and distinct permanent impairment resulting from the 1987 patellectomy.

36. Dr Bell was not made available for cross examination.

1. Returning then to the legal principles identified as relevant to determination of this claim, the list is as follows:

(a) An employee can be assessed for compensation under s 24 of the DRCA if they suffered an impairment before 1 December 1988 which did not become permanent until after 1 December 1988 (Comcare v Levett (1995) 60 FCR 14, 23); > > (b) An employee with a pre-DRCA permanent impairment can be assessed under s 24 of the DRCA if they suffered a different permanent impairment after 1 December 1988 (Department of Defence v West (1998) 85 FCR 491); > > (c) Where a change in a permanent impairment occurring after the commencement date is such that, quantitatively and qualitatively, it is properly to be characterised as a further or new impairment occurring after the commencing date it can be assessed under s 24 of the DRCA (Department of Defence v West (1998) 85 FCR 491, 512) > > (d) a change in the underlying patho-physiology of a condition or a significant worsening of an impairment which is likely to have come about as a result of that change might be a relevant factor in determining whether the permanent impairment that the respondent suffered at the point of assessment was the same permanent impairment as that which he or she had suffered as at or prior to 1 December 1988 (Department of Defence v West (1998) 85 FCR 491, 506); > > (e) Mere worsening of, or an increase in symptoms, will not constitute a new or distinct impairment (Comcare v Maida [2002] FCA 1284, [28]).

2. The medical consensus is that the applicant did have a permanent impairment prior to 1 December 1988.
3. Consequently, if all that happened between 1988 and 2011 was that the pre-existing permanent impairment worsened, then s 124 applies and the applicant must be assessed for a lump sum by reference to the 1971 Act including the limiting subsections of ss 39. If that is done, the applicant receives no payment because of her total incapacity for work. If, however, the permanent impairment the subject of the claim developed post 1 December 1988, then the claim should be assessed under ss 24 and 25 of the DRCA.
4. Dr Journeaux favours the view that the applicant's impairment in 2011 and following was the same permanent impairment from which Ms Hartikainen suffered in 1988. If his view is accepted then the applicant is not entitled to any lump sum payment. If Dr Bell is accepted, his assessment is that there was a change in the underlying patho-physiology of the impairment between 1988 and 2011 such that the impairment from which the applicant suffered in 2011 was distinct and developed post-1988.
5. Dr Bell's conclusion is worth repeating:

If the accepted claim was recurrent subluxation of left patella and the netball injury was classed as an aggravation leading to patellectomy, then this condition would be distinct from the condition causing progressive decline following 2011 which would be instead osteoarthritis and progressive quadriceps deficiency. This decline would represent a new and distinct permanent impairment resulting from the 1987 patellectomy.[48]

6. The point he seems to be making is that Ms Hartikainen's deficient knee condition that led to the surgery in 1987 is distinct from the progressive decline after 2011 which is caused by osteoarthritis and progressive quadriceps deficiency. So much can be accepted. But this analysis elides the distinction between injury and impairment. Ms Hartikainen's injury was an aggravation of a pre-existing condition leading to a patellectomy. Her impairment involved the malfunctioning of the lower limb that was reported to or observed by Dr Davie in 1987. The impairment reported post-surgery involved pain, weakness and reduced quadricep bulk. By focussing on the condition that led to the patellectomy rather than assessing the post-operative impairment reported by Ms Hartikainen in late 1987 and the patho-physiological causes of that impairment, Dr Bell's report fails to helpfully address the critical issue in this case.
7. Dr Journeaux is much more direct in his answers to the important questions. He describes what in his view was causing the permanent impairment assessed in 1988 (based on the 1987 report of Dr Davie) and is satisfied that the worsening condition described by Ms Hartikainen is a gradual deterioration of that impairment not the development of a new impairment.
8. The views he expresses are more consistent with the history of symptoms given by Ms Hartikainen to Professor Ehrlich in 2012. In the history given, the applicant dated the symptoms she was describing back to her surgery. There is no doubt the symptoms worsened over time, but, as subjectively described, there was no identifiable point of change. This is consistent with Dr Journeaux's assessment of a gradual worsening of an existing impairment rather than a new impairment. Dr Journeaux is clear that there was no evidence of a change to the patho-physiological condition of the knee.
9. Dr Bell bases his contrary assessment on the deterioration itself rather than any objective evidence of an identifiable change.
10. Mr Bridges, Ms Hartikainen's husband disputed the history Dr Journeaux relied upon to some degree. In a statement dated 8 January 2026, he recounts:

When I met Judith in 2005, we shared what I would describe as a normal family life. She was largely independent in her daily activities. She worked full-time, drove independently, did the shopping, cooked our meals, maintained our home, and we cared for our dogs together.

From 2005 to around 2010, Judith managed the residual issues from her knee surgery with determination and without significant complaint. She was able to undertake household tasks, run errands, participate in social activities, and engage fully in family life.

During this period, we enjoyed regular walks with our dogs and weekend outings together. While she had some ongoing knee discomfort, it did not significantly limit her activities or quality of life.

Around 2010, I began to notice that Judith's symptoms were worsening progressively. The pain in her left knee increased in both frequency and intensity. Swelling occurred more often, particularly after any period of activity.

She developed a noticeable limp after walking or standing for extended periods. What had previously been manageable discomfort became persistent pain that affected her daily function.

I observed that the biomechanics of walking without a kneecap in her left leg were causing her gait to become increasingly abnormal. This was not merely a cosmetic issue - the altered gait pattern was placing abnormal stress on other parts of her body.

By approximately 2011-2012, Judith was struggling with prolonged standing and walking distances that we had previously managed together without difficulty.

I began taking primary responsibility for walking and exercising our dogs, which had previously been a shared activity that we both enjoyed. This was a significant loss for Judith, as she loved our dogs dearly and took pride in caring for them.

In her nursing work, Judith had increasing difficulty with tasks that involved prolonged standing, manual handling, and patient transfers. These were core components of her role as a Registered Nurse.

Where possible, Judith sought lighter duties or reduced her hours. However, nursing is an inherently physical profession, and when such adjustments were unavailable, her ability to participate became severely limited. Judith was a proud and dedicated professional. The progressive inability to perform her nursing duties caused her significant distress and contributed to her declining mental health.

1. That history is consistent with Ms Hartikainen suffering a gradual deterioration of an existing impairment.
2. I am not satisfied that there was any change in the underlying patho-physiology of Ms Hartikainen's knee between 1988 and 2020 such that she can be treated as suffering from a different, post-commencement permanent impairment. As a consequence, s 124 applies to assessment of her permanent impairment and the applicant is not entitled to any permanent impairment compensation under the DRCA.
3. I note that the applicant contends that Dr Journeaux's report should not be relied upon due to inadequate briefing of material. In particular he contends that less weight should be placed on the report because of the failure to include reports from the Ms Hartikainen's treating orthopaedic surgeon Dr Laurie. Based on Dr Journeaux's responses in cross-examination I am satisfied that he did have access to Dr Laurie's reports. Even if he did not, there is nothing in those reports which undermines Dr Journeaux's reasoning. I am also satisfied that Dr Journeaux had access to the relevant Army medical records including the 1989 Medical History Questionnaire. I am satisfied that Dr Journeaux was briefed appropriately.

1. The last matter put in issue by the applicant is whether a payment should be made consistent with the assessment undertaken at the end of 1987 and offered to Ms Hartikainen in 1988. I have no power to consider that issue. Even if I did, there is no basis on which I could direct such a payment. Ms Hartikainen was entitled to a lump sum when assessed in 1988. However, for the reasons explained in the Department of Defence letter dated 20 June 1988[49] there were sensible reasons for an injured employee not to accept a lump sum. Once Ms Hartikainen was totally incapacitated, she had no further entitlement to any lump sum. No lump sum payment could now be authorised.

1. The applicant raised a number of additional issues at the hearing by handing up written submissions and speaking to them. I will deal with each of them briefly.
2. The applicant claims that Ms Hartikainen had a vested right to non-economic loss payments under s 27 of the DRCA as she brought her claim before her death. It is unnecessary for me to express a view on the question of vested rights. The applicant is not entitled to any payment under s 27 because the only circumstance in which a payment can be made under section 27 is where 'an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24'. For the reasons already stated, no compensation is payable under section 24 and consequently no compensation is payable under s 27.
3. The applicant also contends that Australian authorities establish three uncontroversial propositions - first, that statutory rights are substantive once accrued and not lost as a result of death; second, that beneficial legislation must not be construed to defeat accrued rights without clear words; and third, that administrative delay cannot be used to extinguish an entitlement that arose during life. So much can be accepted for present purposes. However, in this case the statute is clear on what entitlements the applicant should receive based on the facts found. The entitlement the applicant has is nil.
4. The applicant contends that the substantive issues that arise in these proceedings have already been determined by the Federal Court of Australia in prior proceedings between the same parties. In making this submission the applicant is referring to the Federal Court's orders by consent in proceedings QUD5/2023. Those consent orders followed a decision of the AAT to dismiss this application under s 42B of the Administrative Appeals Tribunal Act 1975 (AAT Act) on the basis that they had no reasonable prospects of success. Following an appeal to the Federal Court under s 44 of the AAT Act, by consent, the AAT's decision to dismiss was set aside. The basis on which it was set aside is recorded in notes attached to the proposed consent order submitted to the Court. These notes allow the Federal Court judge considering the proposed order to satisfy him or herself that it is appropriate to grant the order. The notes set out the basis on which it was agreed that the appeal should succeed:

The Tribunal was required to consider not only whether the impairment was permanent before 1 December 1988, but also whether it was the same permanent impairment the subject of the 2011 claim. The [Tribunal's] reasoning at [66]-[67] reflects that the Tribunal only considered permanency before 1 December 1988. The Tribunal did not make a finding as to whether the impairment the subject of the claim was suffered before 1 December 1988. (emphasis in original)

5. The Federal Court did not determine any substantive issue. The appeal succeeded because the AAT had failed to consider all of the issues necessary before deciding whether an application had no reasonable prospects of success.
6. The matter was remitted to the AAT to be heard and determined according to law. That has now occurred.
7. The applicant further contends that the respondent's continuation of the proceedings constitutes an abuse of process on the basis that it involves re-litigation of issues already determined. There is no basis for that submission. The Federal Court did not determine any of the issues that needed to be resolved in these proceedings.
8. The applicant also seeks a declaration that Ms Hartikainen's return to work did not extinguish entitlements to permanent impairment or pain and suffering type compensation under the 1971 Act. The Tribunal has no power to make a declaration. Even if it did, it is unclear what the purpose of such a declaration would be. The respondent has never contended that it was Ms Hartikainen's return to work that disqualifies her from compensation. It was her total incapacity for work from 2011 that led to her being disentitled. It is on that basis that her compensation has been assessed refused.

(a) Ms Hartikainen had a permanent impairment of her left lower limb prior to 1 December 1988 as a result of her netball injury and subsequent surgery; > > (b) No new impairment developed after 1 December 1988; > > (c) The permanent impairment from which Ms Hartikainen suffered prior to 1 December 1988 gradually worsened after 1988 until she was totally incapacitated for work; > > (d) As a consequence of Ms Hartikainen being totally incapacitated for work when the claim for permanent impairment was submitted, she had no entitlement to permanent impairment compensation by s 124(3) and the amount Ms Hartikainen was entitled to receive as lump sum compensation under the 1971 Act in respect of her impairment was nil as a result of s 124(4) (see the exclusion in s 39(14) in the 1971 Act); > > (e) Section 124 of the DRCA thus operates to exclude the applicant from any entitlement to compensation under the DRCA.

Dates of Hearing 27 January 2026 and 6 February 2026

Respondent's solicitor Australian Government Solicitor

[8] Lees v Comcare [1999] FCA 753.

[9] Amended Statement of Issues, Facts and Contentions of the Applicant - (Left Knee - Patella/Patellectomy), [17]; Respondent's Statement of Facts, Issues and Contentions dated 14 January 2026, [109].

[10] See amended Statement of Issues, Facts and Contentions of the Applicant, [30]-[36].

[11] A view favoured by Sackville J in Razmovski.

[14] T Documents (2022/2106), T5, 71; T11, 89.

[18] Report of Dr Christopher Bell concerning left knee condition dated 19 November 2025 [6], [14].

[20] Ibid, 21-23, 28, 31, 40, 81-82. Extract of s 26 Bundle (2022/2106), 5.

[37] Extract s of s 26 Documents (2022/2106), 7-9.

[41] Supplementary report of Dr Simon Jorneaux dated 8 May 2024 (Hearing book, 209).

[43] Supplementary report of Dr Simon Jorneaux dated 12 January 2026 (Hearing book, 225).

[44] Report of Dr Christopher Bell in relation to left knee condition dated 19 November 2025 (Hearing book, 83)