Zivanovic and Comcare (Compensation)

This matter concerned an application by Mr Zivanovic for review of decisions by Comcare to decline liability for medical expenses, incapacity payments, and household services. The dispute centred on whether Mr Zivanovic's degenerative osteoarthritis in both knees and lumbar spine, as well as hypertension, were caused or contributed to by his employment. The Senior Member of the Tribunal was required to determine the extent to which these conditions were a result of the original left knee injury sustained in 1990, altered gait, medical treatment, or other factors such as age and obesity.

The legal issues before the Tribunal were whether the degenerative conditions of Mr Zivanovic's lumbar spine and right knee were caused by his employment, either directly or indirectly through altered gait and medical treatment following his accepted left knee injury. The Tribunal also had to consider the impact of non-employment related factors, specifically Mr Zivanovic's age and morbid obesity, on the development and progression of these conditions. Crucially, the Tribunal needed to apply the correct causal test, which required satisfaction that an employment-related factor contributed to the conditions to a "significant degree," defined as substantially more than material.

The Tribunal reasoned that it needed to be positively satisfied that the original injury caused or contributed to the conditions for which compensation was sought, and that the fact compensation had previously been paid did not alter this requirement. The Senior Member noted that the test for contribution had been strengthened to require a "significant degree," meaning substantially more than material, and that this needed to be assessed in light of all relevant factors, including those specified in section 5B(2) of the Act. The Tribunal considered medical evidence suggesting that morbid obesity was a primary cause of the lumbar spine condition and that this was biochemically influenced, not solely due to physical forces. The Tribunal also noted that Mr Zivanovic's right knee replacement was accepted as due to altered load bearing from the principal left knee injury, and that subsequent back pain was attributed to changes in load bearing post-operation.

The Tribunal set aside the first decision and remitted it for reconsideration, while affirming the second and third decisions. This outcome indicates that the Tribunal found the initial assessment of liability for some conditions to be flawed, necessitating a fresh determination, but upheld Comcare's decisions regarding other conditions.