Demirbas and Comcare (Compensation)

This matter concerned an appeal by the Applicant, Mr. Demirbas, against a decision by Comcare to deny liability for a laminectomy and bilateral rhizolysis procedure under section 16 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). The Applicant had suffered an injury on 17 September 2003 while working as a Customer Service Officer, when a paper tray fell from a photocopier and he experienced a sudden discomfort or "twinge" in his lower back while attempting to catch it. The core dispute revolved around whether this incident aggravated a pre-existing condition of lower lumbar multilevel spine degeneration, leading to compensable sciatica.

The Tribunal was required to determine whether the Applicant's pre-existing spinal degeneration was permanently aggravated by the incident with the photocopier, resulting in the sciatica for which he sought compensation. This involved assessing the causal link between the 2003 incident and the subsequent worsening of his condition, including the migration of pain from his left to his right leg, and whether the surgery undertaken in 2016 was a consequence of this aggravation. The Tribunal also considered conflicting medical evidence regarding the migratory nature of sciatic pain.

The Tribunal accepted the Applicant's evidence regarding the incident and the subsequent pain, finding that it had continued and progressively worsened, significantly impacting his ability to perform basic functions. It concluded that the 2003 incident permanently aggravated the Applicant's pre-existing condition, causing the sciatica that was ultimately relieved by the surgery. While acknowledging a potential conflict between the medical opinions of Mr. Kossman and Dr. Khurana regarding the migratory nature of pain, the Tribunal found that Dr. Khurana's concession, accepting the Applicant's history as indicative of pathological change, resolved this issue. The Tribunal preferred Mr. Kossman's overall opinion, particularly in light of his amplified explanations in oral evidence concerning the transfer of symptoms.

The Tribunal found in favour of the Applicant, overturning Comcare's decision and affirming liability for the surgery.