Can you claim work cover for a pre-existing condition or injury?

If a previous injury or condition is made worse by your working activities, then the answer is “yes” – you should claim work cover!

Aggravation claims

Whether your claim ought to be accepted will ultimately come down to the medical evidence, and whether an ‘aggravation’ can be established.

Too often we see ‘aggravation’ claims rejected by Comcare and self-insured entities, labelling workers as having ‘pre-existing condition(s)’ that are nothing to do with employment.

When we dig a little deeper it is often quite obvious that the opposite is true.

An aggravation within the realms of Comcare and the Safety, Rehabilitation and Compensation Act (SRC Act), essentially refers to a situation whereby a pre-existing condition or injury is worsened or “aggravated” due to work-related activities. It generally involves a scenario where work duties contribute to an existing medical condition being made worse or becoming painful following employment duties or being at work.

Workers need to be aware that a claim should not automatically be disqualified on the basis that they may have a pre-existing condition. 

Recent Case Law on Aggravation Claims

Jaudzems and Comcare (Compensation) [2024] AATA 32

Tindall Gask Bentley recently acted for an injured worker in the decision of Jaudzems and Comcare (Compensation) [2024] AATA 32 which was heard before the Administrative Appeals Tribunal and handed down in January 2024.

The Applicant worked at the Bureau of Statistics in a role that involved a lot of computer work and typing for extended periods of time.

She was born with a congenital defect in both wrists known as ‘madelung’s deformity’, but importantly the evidence was clear that this condition never caused her any pain until she started working in a job that involved ongoing typing and mouse work.

Comcare initially rejected the Applicant’s claim for a right wrist condition on the basis that it resulted from her pre-existing “madelung’s deformity”.

Tindall Gask Bentley successfully argued that the Applicant’s work duties and the repetitive use of a keyboard and mouse resulted in overloading of her wrists, which in turn caused surrounding tendon strains and wrist pain. The ‘madelung’s deformity’ pre-disposed her to hurting her wrists in this way, but it was ultimately her work that caused the pain and condition to manifest. This was supported by the Applicant’s treating doctors and ultimately the Tribunal overturned Comcare’s decision to reject the claim.

The AAT accepted that her work duties caused noticeable increases in pain, which was ‘significant’:

‘… her computer use caused the pain response. The contribution from work was substantially more than material, and this was demonstrated by the improvement on holiday and the onset of severe symptoms on her return to work.’

Following a three-day hearing whereby all the medical evidence and evidence from the applicant was put before the Tribunal, it was ultimately determined that the rejected claim was to be set aside and replaced with a decision accepting the claim as being work-related.

Why is this case important?

This case is important in the workers compensation landscape and highlights the complexities of the legislation, particularly regarding the determination of work-related injuries due to pre-existing conditions.

Recognising aggravation injuries can be challenging. They typically involve a pre-existing condition such as an old sports injury or pre-existing degeneration being evidenced within a joint or body part.

It requires careful forensic analysis to then determine whether the workplace significantly contributed to the worsening of the pre-existing condition. This evaluation considers factors such as the nature of work duties, environmental conditions, and a detailed analysis of the relevant medical evidence, as well as gathering and obtaining medical evidence to support the claim.

What should you do? 

1. Report to your employer, and seek medical attention

If you have an existing condition or injury that is being made worse at work, you can assist with the process by simply reporting any aggravation of symptoms to your treating doctors and workplace. Any aggravation should be promptly informed to your employer and you should seek medical attention. Comprehensive documentation, including medical records and incident reports, strengthen the case when pursuing a Comcare aggravation injury claim.

2. Seek legal advice

Disputes often arise during the aggravation claims process and seeking legal advice is often the difference between having your claim accepted or rejected.  Lawyers who specialise in workers compensation claims, and in particular, Comcare claims, will understand all the nuances of the claims process, and will give you the best chance of your injury compensation claim being successful.

Get in touch!

TGB Lawyers has a team of expert Comcare lawyers that can assist Commonwealth employees right across Australia with their Comcare claims, if they have been injured or become ill at work. Contact us here or get in touch with Alex Harris on 1800 730 842 to discuss how we can help you.