Jenkins and Comcare (Compensation)

This matter concerned an appeal to the Administrative Appeals Tribunal regarding a determination by Comcare of no present liability to pay compensation to the applicant. The dispute centred on whether the applicant continued to suffer from an injury sustained at work in 2007, and consequently, whether she remained entitled to incapacity payments and medical expenses.

The Tribunal was required to determine whether the applicant had recovered from her 2007 work injury, whether an injury could persist despite successful surgery, and whether any subsequent medical treatment or new injuries had caused her ongoing condition. The court also had to consider the weight and independence of expert medical evidence, particularly when experts had conferred, and the appropriate test for causation under the *Safety, Rehabilitation and Compensation Act 1988* (Cth).

The Tribunal accepted the opinion evidence of Dr du Plessis as independent and impartial, noting his clear articulation of the basis for his reassessment of the medical evidence. While acknowledging the applicant's honest belief of ongoing suffering, the Tribunal found that medical records and expert evidence provided a more accurate picture. Several medical certificates and reports from treating practitioners indicated an excellent post-operative recovery and resolution of back pain following the 2007 surgery. The Tribunal found substantial agreement among experts that the 2007 surgery was successful in relieving nerve compression, although it permanently altered the applicant's spinal architecture. The Tribunal also noted that the applicant continued to be permanently incapacitated for work.

The Tribunal found Mr Bannan's report to be equivocal, noting contradictory statements regarding the applicant's recovery from the 2007 operation and the ongoing incapacity. It was unclear whether his conclusion of ongoing incapacity stemmed from the 2007 injury or subsequent events. Consequently, the Tribunal affirmed the Review Officer's decision that Comcare had no present liability.