O’Brien and Comcare (Compensation)

This matter concerns an appeal by Dean O’Brien against decisions made by Comcare. Mr O’Brien sustained a low back injury during his employment as a Stores Officer with the Department of Parliamentary Services (DPS). He had previously received compensation for two separate back injuries sustained during this employment. The dispute arose when Comcare reviewed and subsequently revoked, curtailed, or rejected further compensation claims made by Mr O’Brien for incapacity, medical treatment, and the nature of his work as a cause of injury, particularly in light of activities outside his employment. The decision was made by Mr S. Webb, a Member of the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were to determine Comcare’s liability in respect of Mr O’Brien’s low back condition, specifically whether it constituted a ‘disease’ or an ‘injury (other than a disease)’, or related aggravations. This required an assessment of the precise evidence concerning the history and progress of his condition, including physiological changes in his lumbar spine, and whether the requisite nexus with his previous employment could be established. The Tribunal also had to consider the extent to which activities outside his DPS employment contributed to his low back condition and related symptoms, and whether his employment significantly contributed to the recurrence and progression of any disease.

The Tribunal reasoned that a detailed, fact-by-fact examination of Mr O’Brien’s employment duties and the progression of his low back condition was necessary. His role as a Stores Officer involved significant manual handling, including lifting loads up to 20kg, bending, twisting, operating vehicles, and loading and unloading heavy items. The Tribunal noted that Mr O’Brien’s evidence regarding these duties was largely unchallenged and consistent with his duty statement, with added detail about the weight of waste bins and the repetitive lifting and bending involved in X-ray screening procedures. The Tribunal considered whether his employment had significantly contributed to the recurrence and progression of his low back condition, and whether his incapacity and need for medical treatment resulted from his compensable injuries.

The Tribunal set aside Comcare’s decisions, finding that the nature and conditions of Mr O’Brien’s work significantly contributed to the recurrence and progression of his low back condition. It also determined that his incapacity and need for medical treatment resulted from his compensable injuries, meaning Comcare’s liability to pay compensation continues. The parties have not yet been heard on costs, with written submissions to be made within 14 days. If no submissions are received, Comcare will be ordered to pay Mr O’Brien’s costs.