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Perspective

Determining liability for the aggravation of a pre-existing injury or degenerative condition

For an injury to be compensable under workers compensation, it must arise out of, or in the course of employment. This is the same test in the Commonwealth and across the various State workers compensation Acts. Whilst the wording of the different Acts varies, for an aggravation of a pre-existing injury or ailment to be compensable, the employment must have contributed to the aggravation or ailment to a significant degree. A significant degree means a degree that is substantially more than material.

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When determining WorkCover liability for the aggravation of a pre-existing injury or degenerative condition, the question is whether the injury or condition was significantly contributed to by the employee’s employment, considering the following:

  1. The duration of the employment.
  2. The nature of, and particular tasks involved in, the employment.
  3. Any predisposition of the employee to the ailment or aggravation.
  4. Any activities of the employee not related to the employment.
  5. Any other matters affecting the employee’s health.

In Ross and Comcare (Compensation) [2020] AATA 4350, the employee’s claim was denied on the basis her employment did not contribute to her condition to a significant degree and she would have developed the same condition in any event.

The employee was deployed to a maritime vessel as part of her employment. Within days she noticed soreness in her hip after repeatedly climbing stairs. She had a sudden onset of pain when she stepped awkwardly down the steps and noticed a marked decrease in mobility in her hip. She was diagnosed with a stress fracture, requiring a hip replacement.

Comcare’s independent medical evidence established she had a pre-existing condition, and whilst climbing the stairs could have caused the acute exacerbation earlier than normally expected, it would have occurred regardless in the normal course of events.

The employee claimed she had no problems with her hip at the time of commencing the deployment, but the medical evidence showed otherwise.

The AATA confirmed Comcare was not liable for the aggravation of a worker’s degenerative osteoarthrosis condition and accepted their medical evidence that “she would have developed the current condition as a natural progression of the pre-existing condition irrespective of employment”.

Written by Nes Demir

Lessons for employers

  1. When considering liability for the aggravation of a pre-existing or degenerative condition, it is important to consider (and seek medical evidence to support) whether:
    • The employment significantly contributed to the condition (i.e. made it worse); OR
    • The condition became worse whilst the employee was at work.
  2. To be compensable, an injury must arise out of, or in the course of employment.
  3. If the injury is in the form of an aggravation of a pre-existing condition, this will only be compensable if:
    • The employment was a significant contributing factor to the aggravation; or
    • The employment contributed to the condition to a significant degree.

Have a question or need advice?

Our team are here to provide the right advice for your business and workforce. If you have a question or require assistance, please contact Kim McLagan.

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