Graham and Comcare (Compensation) [2025] ARTA 579 (11 April 2025)
Applicant/s: Glenn Graham
Respondent: Comcare
Tribunal Numbers: 2023/3104
2020/6254
2021/8134
2021/9475
Tribunal:Senior Member S Webb
Place:Canberra
Date:11 April 2025
Decision:
1.The reviewable decision in application 2023/3104 is set aside and in substitution the Tribunal decides:
a.the nature and conditions of Mr Graham’s Australian Federal Police employment significantly contributed to aggravation of his degenerative lumbar spine ailment;
b.the aggravation is an ‘injury’ for the purposes of s 5A(1)(a) of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act);
c.the ‘injury’ is concomitant with the ‘injury’ for which Comcare accepted liability on 27 September 2013 (collectively, Back Injury);
d.the date of the ‘injury’ is 31 July 2013; and
e.Comcare is liable to pay compensation in respect of the Back Injury under s 14 of the SRC Act.
2.The reviewable decision in application 2020/6254 is set aside and in substitution the Tribunal decides:
a.Mr Graham is entitled to compensation for permanent impairment under s 24 and non-economic loss under s 27 of the SRC Act in respect of the Back Injury.
3.The reviewable decision in application 2021/8134 is set aside and in substitution the Tribunal decides Comcare is liable to pay compensation in respect of spinal fusion surgery performed by Dr Ow-Yang on 7 July 2015 and reasonably obtained by Mr Graham in relation to the Back Injury.
4.The reviewable decision in application 2021/9475 is set aside and in substitution the Tribunal decides Comcare is liable to pay compensation in respect of aggravation of adjustment disorder/depression significantly contributed to by employment-related pain stemming from the Back Injury.
5.Within 14 days, the parties have liberty to lodge submissions in respect of orders for costs under s 67(8) of the SRC Act. Should no submissions be lodged, the Tribunal intends to order Comcare to pay Mr Graham’s reasonable costs as agreed or taxed in each application.
Statement made on 11 April 2025 at 12:00pm
Catchwords
WORKERS’ COMPENSATION – lumbar spine ailment – incidents in employment – nature and duties of employment – pre-existing degenerative ailment – vulnerability to aggravation – susceptibility to injury – cumulative load of employment duties – increased risk of and susceptibility to injury – expert witness evidence – attribution of weight to detailed reasoning – employment contribution to a significant degree – injury – surgical treatment reasonably obtained in relation to injury – permanent impairment resulting from injury – depression significantly contributed to by employment – decisions set aside and substituted
Legislation
Safety, Rehabilitation and Compensation Act 1988 s 4, 5A, 5B, 7, 14, 16, 19, 24, 27, 67Cases
Australian Postal Corporation v Burch [1998] FCA 944
Australian Securities and Investments Commission v Hutchison [2020] FCA 978
Canute v Comcare [2006] HCA 47
Comcare v Lofts [2013] FCA 1197
Comcare Australia v Rope [2004] FCA 540
Dasreef Pty Ltd v Hawchar [2011] HCA 21
Kennedy v Cordia (Services) LLP
Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft für Schädlingsbekämpfung mbH 1976…
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- [2025] ARTA 579
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CaseChat Overview and Summary
The legal issues the court was required to decide include whether the employment duties materially and significantly contributed to the aggravation of Mr Graham's lumbar spine condition, whether the lumbar fusion surgery performed by Dr Ow-Yang was reasonably obtained in relation to the injury, and whether employment-related low back pain significantly contributed to the aggravation of Mr Graham's psychological adjustment disorder or depressive disorder. Additionally, the court needed to determine if Comcare, the respondent, is liable to pay compensation for the surgical treatment, the resulting permanent impairment, and the psychological disorder.
The court examined the evidence and found that the nature and conditions of Mr Graham’s employment significantly contributed to the aggravation of his lumbar spine ailment. The Tribunal determined that the aggravation of the lumbar spine ailment was concomitant with the injury for which Comcare had already accepted liability. The court further found that the lumbar fusion surgery was reasonably obtained in relation to the aggravation 'injury' and that the surgical procedure resulted in a permanent impairment. Additionally, the court concluded that employment-related low back pain significantly contributed to the aggravation of Mr Graham’s psychological adjustment disorder or depressive disorder, making Comcare liable for compensation.
The decisions in the applications 2023/3104, 2021/8134, 2021/9475, and 2020/6254 were set aside and substituted. The Tribunal granted liberty for the parties to lodge submissions on orders for costs within 14 days, with an intention to order Comcare to pay Mr Graham’s reasonable costs if no submissions were made.
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