Graham and Comcare (Compensation)

Case [2025] ARTA 579

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, 67

Cases

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

[2016] UKSC 6



Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft für Schädlingsbekämpfung mbH 1976…

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Details
AGLC
Graham and Comcare (Compensation) [2025] ARTA 579
Case
[2025] ARTA 579
Decision Date

CaseChat Overview and Summary

The case of Graham v Comcare concerns a dispute over workers' compensation related to a lumbar spine ailment that the applicant, Mr Graham, attributes to his employment with the Australian Federal Police. The primary issues revolve around whether the employment duties of Mr Graham materially and significantly contributed to the aggravation of his pre-existing lumbar spine condition and whether the subsequent surgical treatment and psychological impairment were reasonably obtained in relation to his employment. The matter was heard by the Administrative Appeals Tribunal (AAT) in Australia.

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.

Orders

Orders of the court

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Background

Background to the litigation

There is some complexity to the issues raised in these cases. Unfortunately, counsel for Mr Graham, Mr Leo Grey, was unable to provide oral submissions during the hearing for health reasons. In order to ensure fairness to each party, time was allowed for closing submissions to be made. The time allowed was extended. Ultimately, each party lodged closing submissions. Some of the submissions contain factual errors or a lack clarity. Without occasioning further delays, I will make the best of them and attempt to address the salient issues raised. FACTS In these circumstances and in order to fully comprehend and squarely address the issues in these applications, it is necessary to set out the historical facts and related contemporaneous records in some detail, even though this substantially increases the length of the reasons for decision. I am satisfied the following facts are supported by the materials and evidence before the Tribunal. Mr Graham was born in 1956. He is 68 years old. In 1972, he commenced work with his father as an industrial painter. At the age of 16, he fell from a roof and hurt his back.[17][17] Ibid, 1347. From November 1973 to November 1982, he served in the RAAF, working as an airframe fitter. He played rugby during his service. In 1990, Mr Graham was employed as a sales representative. He experienced low back pain which he attributed to sitting on a wallet in his back pocket. On 6, 13 and 23 July 1990, he obtained physiotherapy treatment from Jac Cousins, a physiotherapist, who noted “P↑ R L4/5 Region only”.[18] The notes of the Queanbeyan GP Super Clinic record “L5S1 lesion shown in 1990”.[19] No documentation of a radiological investigation of Mr Graham’s lumbar spine in 1990 has been given to the Tribunal. With treatment, his low back symptoms settled.[18] Ibid, 1301.[19] Ibid, 920. Mr Graham obtained further treatment from Mr Cousins in 1993 and 1999.[20] On 27 October 1999, Mr Cousins noted a two-week history of low back pain which was “severe”.[21][20] Ibid, 1302.[21] Ibid, 826. On 8 June 2001, Mr Graham disclosed in an Australian Protective Service (APS) Intake Checklist he had previously suffered from “back or neck pain or injury” and “joint pain or injury”.[22][22] Ibid, 615-624. On 11 September 2001, Mr Graham commenced employment with the Australian Federal Police (AFP). He was assigned to the APS Diplomatic Protection Unit. On 9 January 2002, he consulted Dr Donald Bradfield, a general practitioner, in respect of low back pain.[23] The doctor prescribed Panadeine Forte and Voltaren and noted:Ongoing back pain in left side Sacroiliac area Previous! Disc lesion on this side.Currently working for Aust Protective services[24]The circumstances in which the low back pain symptoms arose is not evident on the available materials.[23] Ibid, 69, 908.[24] Ibid, 1035. On 8 April 2002, Mr Graham attended The Canberra Hospital in respect of thoracic and right upper limb pain. Among other things, the Hospital notes record a history of “sciatica L leg – nil recent problems”.[25] [25] Ibid, 834.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

As the parties have not been fully heard on this point, it is appropriate for this to be remitted to Comcare for determination of Mr Graham’s entitlement to compensation in respect of this ‘injury’.CONCLUSION The nature and conditions of Mr Graham’s AFP employment materially and significantly contributed to aggravate his degenerative lumbar spine ailment. The resulting ‘disease’ kind of ‘injury’ is concomitant with the injury for which Comcare accepted liability on 27 September 2013. Lest there be any doubt, under s 7(4) of the SRC Act, the date of the injury is deemed to be 31 July 2013. The effects of the aggravation ‘injury’, including discogenic low back pain, persisted to varying degrees. The lumbar fusion surgery Dr Ow-Yang performed on 7 July 2015 was obtained in relation to the aggravation ‘injury’ and it was reasonable for Mr Graham to do so in the circumstances. Comcare is liable to pay compensation in respect of the surgical treatment Mr Graham obtained from Dr Ow-Yang. The surgical procedure resulted in fusion of Mr Graham’s lumbar spine at the L4/5 and L5/S1 levels, with a resulting loss of motion segment integrity. This impairment is permanent and Comcare is liable to pay compensation under s 24 and s 27 of the SRC Act. The amount of compensation is to be determined on remittal. Employment-related low back pain significantly contributed to aggravate Mr Graham’s psychological adjustment disorder or depressive disorder ailment. Comcare is liable to pay compensation in respect of this ‘injury’. The period in which compensation is payable and the amount of the compensation is to be determined on remittal. The decisions in application 2023/3104, 2021/8134, 2021/9475 and 2020/6254 must be set aside and substituted. As the parties have not been heard as to orders for costs under s 67(8) of the SRC Act, each will have liberty to lodge submissions in respect of orders for costs within 14 days. Should no such submissions be lodged, the Tribunal intends to order Comcare to pay Mr Graham’s reasonable costs in each application, as agreed or taxed.

Ratio Decidendi

Legal Principle Established

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