O’Kane and Comcare (Compensation)

This matter concerned an application for review by Mr Laurence O’Kane against a decision by Comcare. Comcare had affirmed its determination that Mr O’Kane was not entitled to further compensation for permanent impairment and non-economic loss. Mr O’Kane had sustained a workplace injury to his right knee in 2002, for which Comcare accepted liability. He later claimed compensation for permanent impairment, stating his impairments included his right knee and aggravation of gout. While initially disallowed, a subsequent agreement led to Mr O’Kane being compensated for 20% whole person impairment (WPI) resulting from the accepted injury. However, after undergoing knee replacement surgery in 2011 and 2012, Mr O’Kane sought further compensation, which Comcare disallowed on the basis that his current impairment was not an increase of 10% WPI due to the accepted injury.

The court was required to determine the causal relationship between Mr O’Kane’s current impairment, his accepted workplace injury, and his pre-existing gout. Specifically, the issues included whether Mr O’Kane’s current impairment was a result of gout and its natural progression, whether the accepted injury had allowed or promoted the onset of gout, or aggravated pre-existing asymptomatic gout, and whether the subsequent arthroplasty constituted a new injury or a separate impairment arising from the accepted injury. The court also needed to assess the correct WPI rating in light of these determinations.

The Senior Member, Dr James Popple, found that Mr O’Kane’s current impairment was a result of gout and its natural progression, and not a result of the accepted injury. This finding was informed by medical evidence, including that of Dr Mourad, who noted Mr O’Kane’s statement that his symptoms resolved within two days of the accepted injury, and that the subsequent aspiration of his knee revealed uric acid crystals, indicative of gout. While Dr Le Leu suggested a trauma-damaged joint might be more susceptible to gout, Dr Mourad found no evidence of trauma beyond Mr O’Kane’s recollection. The Senior Member applied the principle that even if Comcare previously accepted liability for an injury, it remained open to find that the current impairment was not a result of that accepted injury.

Comcare’s decision of 18 July 2014 was affirmed. Consequently, Comcare was not liable to pay Mr O’Kane further compensation for permanent impairment and non-economic loss.