Warner and Comcare (Compensation)

This matter concerned an appeal by Mr. Warner against a determination by a delegate of Comcare regarding his entitlement to workers' compensation. Mr. Warner had suffered two separate back injuries, one in 1974 and another in November 1975, both arising from his employment. The delegate's determination had focused solely on the later injury, and it was contended that the description of this injury was erroneous. The applicant, now of advanced age, sought to have the description of the 1975 injury amended and to establish that its effects were continuing. The decision was made by Deputy K Bean P.

The primary legal issues before the Tribunal were whether the description of the injury sustained by Mr. Warner in November 1975 was accurate and, if not, whether the Tribunal had the power to amend it. Furthermore, the Tribunal was required to determine whether the effects of this 1975 injury were still ongoing as at 11 February 2016, and consequently, whether Comcare remained liable to pay compensation in respect of that injury.

The Tribunal considered evidence from medical experts, including Mr. Phillips and Professor Malcolm Smith. Professor Smith, who had treated Mr. Warner since 1998, opined that Mr. Warner's current age-related degenerative changes were likely additive to his previous lumbar spine injury and possibly more extensive than they would have been otherwise. Both experts indicated that the contemporaneous medical information suggested the description of the 1975 injury as "severe L5-S1 disc and osteoporosis" was likely incorrect. They proposed that the intended description was "aggravation of severe L5-S1 disc degeneration and osteoarthritis." The Tribunal found that it had jurisdiction to amend this description and that it should do so based on the evidence. Regarding the ongoing effects of the 1975 injury, the Tribunal acknowledged the complexity due to the passage of time and the acceptance of liability for the earlier 1974 injury. However, after considering the evidence, the Tribunal concluded that the 1975 injury continued to play a role in Mr. Warner's spinal condition.

The Tribunal set aside the delegate's decision. In substitution, it ordered that the description of the compensable injury suffered by Mr. Warner on 18 November 1975 be amended to "aggravation of severe L5-S1 disc degeneration and osteoarthritis." It was further decided that as at and from 11 February 2016, the effects of Mr. Warner's 1975 injury were ongoing, and Comcare remained liable to pay compensation pursuant to sections 16, 29, and 136 of the SRC Act.