Mackay and Comcare (Compensation)

This matter concerned an appeal by Mr. Mackay against a decision by Comcare. The dispute centred on whether Mr. Mackay was entitled to compensation for medical treatment and incapacity for work related to a low back injury sustained in June 1995. The case was heard by Deputy J Sosso P.

The legal issues before the court were whether the medical treatment sought by Mr. Mackay was reasonable in the circumstances, and whether he was incapacitated for work as a result of his compensable injury. Crucially, the court had to determine whether Mr. Mackay continued to suffer from the effects of his 1995 low back injury or if that injury had resolved.

The court considered extensive medical evidence from neurosurgeons and orthopaedic surgeons, as well as reports from various clinics. The respondent, Comcare, contended that the applicant's current condition was due to congenital, lifestyle, and ageing factors, and not the 1995 injury, preferring the evidence of Dr. Khurana. However, the Tribunal found that Mr. Mackay continued to suffer from the effects of his June 1995 injury and required ongoing medical treatment. The Tribunal agreed with submissions that it must consider the nature of the injury and all relevant evidence, including preferring one expert witness's evidence over another, and determine if the accepted injury was a necessary cause of the incapacity for work.

The Tribunal set aside the decision under review and substituted a determination that Mr. Mackay is entitled to claim compensation for medical treatment under section 16 and for incapacity under section 19 of the Act for the accepted injury. The matter was remitted to Comcare to calculate and pay the compensation.