Chick and Comcare (Compensation)

This matter concerned an application for review before the Administrative Appeals Tribunal (AAT) concerning a decision by Comcare to cease liability for compensation payments to the applicant, Ms Chick. The applicant had previously accepted claims for an injury to the patellofemoral joint of her right knee, sustained in September 2017, and an aggravation of that injury from walking up a gangway in November 2017. Comcare's decision to cease liability was based on an MRI scan from January 2018, which it contended showed no ongoing injury to the patellofemoral joint and indicated that any ongoing pain was attributable to pre-existing, non-compensable conditions. The applicant argued that the incidents had caused a consequential exacerbation of pre-existing medial compartment osteoarthritis in her right knee, which continued to cause her incapacity for work.

The Tribunal was required to determine whether Comcare's decision to cease liability for compensation was the correct or preferable decision on the evidence. Specifically, the Tribunal needed to assess whether the applicant's ongoing symptoms were attributable to the previously accepted injury or its consequences, or to other non-compensable conditions. The Tribunal also considered the evidentiary burden on Comcare when reviewing a decision to cease compensation for a previously accepted injury.

The Tribunal applied the principle that in reviewing a decision to cease liability for a previously accepted injury, it must be satisfied on the balance of probabilities that the decision to cease liability is correct or preferable. While neither party bears a formal onus of proof, Comcare has an evidentiary burden to discharge if its decision is to be affirmed. The Tribunal noted that the applicant did not dispute that the specific damage to the patellofemoral joint was no longer evident in the January 2018 MRI. However, the Tribunal considered the applicant's contention that the exacerbation of her medial compartment osteoarthritis, a consequential effect of the accepted injury, persisted and resulted in her ongoing incapacity.

The Tribunal set aside the decision under review and substituted its own decision. The Tribunal found that the applicant had not discharged the evidentiary burden to demonstrate that the respondent's decision to cease liability was the correct or preferable decision. Consequently, the Tribunal affirmed Comcare's decision to cease liability for compensation.