Gharakhan and Comcare (Compensation)

This matter concerned an appeal against a decision by Comcare to deny compensation for surgery performed on the applicant's lumbar spine at the L2/3 level. The applicant sought coverage for this surgery, arguing it was necessary due to a compensable injury sustained in 2004. Comcare contended that the surgery was necessitated by a fall that occurred in 2013, and that this fall and the resulting injuries were not attributable to the applicant's employment or the 2004 injury. The decision under review was an affirmation by a Review Officer of an earlier determination by a Comcare delegate.

The court was required to determine several key issues. Firstly, whether the L2/3 surgery performed in June 2015 was required in relation to a compensable injury for which Comcare was liable, and if so, whether it was reasonable for the applicant to obtain. Secondly, the court had to consider whether the 2004 injury had caused a weakness in the applicant's lumbar spine, leading to the need for the surgery. Finally, the court was asked to determine if Comcare's prior payment for injections to the L2/3 joint constituted an election to accept liability for continuous treatment of that condition.

The court considered extensive medical evidence from several specialists, including Dr. Ralph Mobbs, Associate Professor Neil W McGill, and Dr. Christopher Browne. While Comcare argued that the 2013 fall was the direct cause of the L2/3 surgery and was unrelated to the 2004 injury, the medical evidence presented a more complex picture. Dr. Mobbs indicated that the L2/3 problem was more related to the original back injury than the fall. Associate Professor McGill testified that the 2004 injury could have caused leg weakness, potentially due to deconditioning from chronic pain, which might have predisposed the applicant to falls. Dr. Browne suggested that weakness resulting from the original surgery site and subsequent procedures may have predisposed the applicant to falls, thereby connecting the 2004 injury and subsequent events to the L2/3 procedure. The court noted that the factual matters relied upon by the applicant were not in contest, with the dispute centering on the medical diagnosis and causation.

The court found that the applicant's leg weakness, which may have predisposed her to falls, was a result of the pathological process at the lower spinal levels and the subsequent multiple surgeries. This weakness, in the court's view, was connected to the 2004 injury. Consequently, the court set aside the Comcare delegate's decision and substituted a new decision finding that Comcare was liable to pay compensation for the L2/3 surgery as it was required in relation to the applicant's compensable injury.