TGB Partner, Tim White, analyses a case study revealing how commonwealth workers could be entitled to compensation for pre-existing conditions or injuries.
If you have a pre-existing injury or condition prior to commencing your employment which becomes aggravated or worsened at work, you may still have a claim for compensation.
Pre-Existing Injuries and Conditions
What steps should you take if a pre-existing condition worsens due to work?
If you are injured at work the first thing you should do is report the injury to your manager or supervisor, and ensure that it is accurately documented. There may be several forms to complete, but ensure that you disclose carefully the prior condition and how you say work has caused it to be aggravated.
If an incident at work causes an aggravation or exacerbation or worsening of the symptoms of a pre-existing injury/condition, provided you have completed your claim form correctly and the medical evidence is supportive, you may still be entitled to compensation for that aggravation. In some cases it will be obvious to you that you have aggravated an old injury, whilst in others the distinction is less clear.
In this case, the worker was a 63 year old employee of a large commonwealth business. The worker had bilateral degenerative shoulder pathologies and the medical experts agreed the structure of her shoulder joints pre-disposed her to shoulder injuries. The worker was unaware of this at the time she submitted a claim for her left shoulder injury which occurred in July 2010 and her right shoulder injury in August 2010.
Initially the worker’s claims were accepted and she continued to work restricted duties and medical expenses for her shoulder problems were paid for. However in 2015 it was determined her shoulder injuries were no longer work related, that is her on going pain and other symptoms were due to her age-related degenerative changes in her shoulders. Put another way, work was no longer the predominate cause of her ongoing shoulder problems.
As a result of that decision by her employer, the worker no longer had an entitlement to claim medical expenses and her work injury claim was ceased.
What steps were taken to dispute the decision?
The worker sought advice from TGB about the two decisions and ultimately the matter went to a hearing or trial at the Administrative Appeals Tribunal (AAT).
The question for the Tribunal to determine was whether on the balance of probabilities, the worker’s employment contributed to a significant degree to an aggravation of her pre-existing degenerative shoulder conditions, what the duration of any aggravation was and whether it gave rise to liability under section 14 of the Safety Rehabilitation and Compensation Act 1988 (Cth).
The Tribunal’s decision was handed down recently and it referred frequently to the decision of Comcare v Reardon  FCA 116 (“Reardon”). The Federal Court in Reardon found two important principles for workers.
- When determining if a worker has suffered an aggravation the Court must consider that “a worsening or increase in symptoms of a non-work caused condition may constitute an ‘aggravation injury’ and it is unnecessary for a worsening of the pathology to be present” BUT not every worker who works with a pre-existing injury and who suffers pain will have suffered an aggravation of his/her injury.
In other words, if a worker experiences pain, restrictions in movement, altered sensation or other symptoms whilst performing their work duties, this may constitute an aggravation of a pre-existing condition. The increase in the symptoms needs to have a temporal connection with work and also with the specific duties that are being performed.
However, it might be that particularly for older workers, the symptoms of the condition are merely reflective of an underlying pathology which is either constitutional in nature or could be due to an old injury. In either case the Court found that an increase or worsening of the symptoms associated with the injury could constitute an aggravation.
- The Court also found the words ‘contribution to a significant degree’ require a contribution which is substantially more than material. However the Act does not require employment to be the sole cause of the aggravation.
In this case it meant her work needed to be the significant cause of her ongoing pain and other symptoms in her shoulders. It did not matter that is was not the sole cause. That is, there could be some other factors that were contributing to the current symptoms including age or and old injury. If her work duties were the significant cause of her current symptoms that was considered sufficient. These considerations are largely determined by what the medical evidence indicates and what the worker says about the condition and how work has worsened it. The individual circumstances of the worker need to be very closely examined when considering these issues.
In this case some of the medical evidence suggested that the worker could have injured her shoulders at any time, any where and the fact that the injury occurred at work was purely coincidental. The Tribunal did not accept this, largely because of the worker’s contemporaneous reporting of her injuries at the work place and her treating medical records that supported her version of events.
The AAT attached little weight to the fact that the worker experienced some pain in her shoulder prior to her employment, as that pain and symptomology was not of the same severity as that experienced whilst working with employer. The AAT concluded that a worsening or increase in symptoms can constitute an aggravation of an injury for the purposes of the SRC Act.”
Was there an ongoing incapacity or need for medical treatment?
The AAT was then required to determine if having suffered the aggravation of her pre-existing condition, whether the worker remain incapacitated for work. If this could be demonstrated it would entitle the worker to compensation.
Importantly, section 4(9) of the SRC Act defines incapacity to mean “incapacity to engage in any work or work at the same level the employee was engaged in immediately before the injury occurred”. The AAT found that the worker remained incapacitated as per section 4(9) of the Act because she was unable to undertake the full spectrum of work duties, despite being able to perform full time hours. The worker was therefore entitled to compensation.
An important finding in this case was that it is not necessary that the symptoms be present all of the time. There can be periods of time when the pain for example ceases when the individual is away from work or when on a holiday and clearly not working. It was acknowledged by the AAT that there will be periods of time when the pain will not be present at all as the individual is not at work performing the duties that aggravate the condition.
What were the implications for the worker?
Having found that she is still entitled to compensation under sections 16 and 19 of the SRC Act, the worker can now continue to claim reasonable medical expenses related to her shoulder problems and also remain on restricted duties at work. Her employer must continue to provide her with suitable duties taking into account the restrictions arising from her bilateral shoulder problems.
In this case, despite the worker clearly having pre-existing degenerative changes in her shoulders, she was still successful in having the AAT accept that her work duties continued to cause an aggravation of that condition. As work was the significant contributor to that ongoing aggravation her claim remained an accepted and she continued to be entitled to compensation.
It is important to seek legal advice any time you receive a decision about your claim which appears to impact your entitlement to compensation. TGB have significant experience with commonwealth employee claims. For further information or assistance with your claim, contact us.
Get in Touch!
To discuss anything in this article, or if you believe you may be eligible for compensation and would like help with your Comcare compensation claim, please contact TGB partner Tim White.
Tim and his team advise Commonwealth employees across Australia on their entitlement to compensation, and making Comcare claims.