Hewitt and Comcare (Compensation)

This matter concerned an application for review of a decision by Comcare denying liability for medical expenses under section 16 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). The applicant sought compensation for chronic back pain and nerve pain, described as a new condition caused by an existing compensable injury. The applicant's claim stemmed from a severe episode of L4/5 back pain in 2009, which she stated was a consequence of a previous compensable condition. However, the applicant had a long history of musculoskeletal complaints, including a prior back injury sustained approximately 15 years before the 2018 claim, which she had initially failed to fully disclose to some medical experts. The Tribunal considered evidence from the applicant, several medical specialists, and documentary records.

The central legal issues before the Tribunal were whether the applicant's current condition constituted an "injury" as defined by the Act, and if so, whether that injury occurred in the course of her employment. Specifically, the Tribunal had to determine if the L4/5 disc protrusion or aggravation was an injury, and if the applicant's chronic pain was significantly contributed to by her employment. The Tribunal also considered allegations of failed disc replacement surgery or "Failed Back Surgery Syndrome" as potential causes of the applicant's ongoing pain.

The Tribunal found that the applicant did suffer an injury, specifically an L4/5 disc protrusion or aggravation, which occurred due to a coughing incident on 19 July 2005. This conclusion was based on the applicant's own statements in her workers' compensation claim and evidence, as well as a workplace incident report. The Tribunal noted a significant difference in the severity of her pain before and after this incident. However, the Tribunal was not satisfied that this injury, or the subsequent chronic pain, occurred in the course of the applicant's employment. The Tribunal also concluded that the allegations of failed disc replacement surgery or Failed Back Surgery Syndrome were not established by the evidence, preferring the opinions of medical experts who noted a pre-existing degenerative condition of the lumbar spine and found that the patient history provided to some experts was incomplete.

Ultimately, the Tribunal affirmed Comcare's decision, finding no present liability for medical expenses under section 16 of the SRC Act. The Tribunal was not satisfied that the applicant's chronic pain was contributed to a significant degree by her employment, nor were the claims of failed surgery substantiated.