Australia: WA Workers Compensation – injured knee collapsed during return to work program aggravating asymptomatic back condition – is the back injury compensable?

Last Updated: 3 July 2017
Article by Ashley Crisp



Heard by SCOTT DCJ on 7 APRIL 2017 and judgement delivered 26 MAY 2017

The worker, Mr Miller, sustained a left knee injury on 9 November 2009 in the course of his employment, he claimed workers compensation under the Workers' Compensation and Injury Management Act 1981 (WA) (the Act) relating to the knee injury and liability was accepted by the employers insurer.

Eventually the worker was paid the prescribed amount for the knee injury on 12 December 2014, however, on around 19 January 2011 (whilst he was still in receipt of weekly payments of workers compensation for the knee injury) the worker started a return to work program under the Act at Bunnings.

On 12 April 2011 his knee "gave way" and he fell and struck a pallet with his right buttock which caused a previously asymptomatic lumbar spine degeneration condition to become symptomatic. There was also compromise of the L5 nerve root which caused sciatica, in short the back injury.

The employers insurer accepted liability for the back injury on about 11 February 2015 and weekly payments were paid but then suspended by a Conciliation Officer on 16 April 2015 on application by the employer for a period of 12 weeks. In those proceedings the employer contended liability was admitted in error and further contended there was a genuine dispute as to the employers liability to pay compensation.

The matter eventually proceeded to the Arbitration service for determination. The application was heard on 21 September 2016 and the learned Arbitrator published his reasons on 23 November 2016.

The back injury was described in the application as "an aggravation of underlying asymptomatic disease in lumbar spine with possible disc protrusion". The Arbitrator stated that description appeared to be an injury within the definition of 'injury' in limb (d) of s 5 of the Act – being an aggravation of a pre-existing disease and that it might also be a personal injury by accident within the definition of 'injury' in limb (a) of s 5.

It was common ground in the Arbitration that the return to work program at host employer Bunnings at which the back injury was sustained was a place for treatment or attendance of a kind referred to in cl 17 of sch 1 of the Act.

The employer submitted the back injury and consequent incapacity resulted from the knee injury and it was under that claim that the respondent's incapacity must fall and as the worker's claim for weekly payments must fail given that he had already received the prescribed amount for weekly payments for the knee injury.

The employer further submitted that the back injury was an aggravation of a pre-existing injury by reason of which it fell within the definition of 'injury' in limb (d) of s 5. Given that it arose during the return to work program and not during the respondent's employment the provisions of limb (d) could not be satisfied by the respondent.

The worker submitted his back injury was sustained in circumstances to which s 19(1)(b) apply and it constitutes a 'fresh' injury with a new prescribed amount and that is it was a personal injury by accident to which limb (a) of s 5 referred.

The learned Arbitrator considered the provisions of the Act and the evidence including the medical evidence and was satisfied that the degeneration remained asymptomatic until 12 April 2011 and he accepted the that medical evidence that when the respondent's knee gave way and he fell and hit a pallet with his right buttock, that caused his previously asymptomatic lumbar spine degeneration to become symptomatic, causing a compromise of his L5 nerve root resulting in him suffering from sciatica.

The Arbitrator was satisfied the respondent suffered a personal injury by accident on 12 April 2011 and observed it was common ground that if it were not for the knee injury, the respondent's knee would not have given way and he would not have injured his back and as such in that sense the causal chain remained unbroken and any incapacity resulting from the back injury, in effect resulted from the knee injury.

The Arbitrator also said that had the respondent suffered his back injury when he was at home (and therefore otherwise non-compensable) there would be little doubt that his weekly payments for total incapacity would have continued as the continuing incapacity resulted from his knee injury.

The Arbitrator stated that provided the worker's back injury was a material contributing cause of his incapacity he was entitled to compensation for that injury relying on the decision in Rosmini (215) (Bray CJ); Cole v P & O Ports Ltd [2002] WASCA 157 [23].

The Arbitrator decided the respondent's back injury was a compensable injury in its own right and materially contributed to his ongoing incapacity albeit in company with the ongoing knee injury. He then cited the medical evidence which he said demonstrated that after 12 April 2011 the respondent's knee injury continued to contribute to his incapacity as did his back injury. He was satisfied that from 12 April 2011 the respondent was totally incapacitated as a result of both compensable injuries and after 12 December 2014 (when his entitlement to compensation for the knee injury ceased), he continued to be totally incapacitated as a result of the back injury.

The District Court Appeal

The employer appealed the decision of the Arbitrator, in short the grounds of appeal were –

  • The Arbitrator erred in law in finding that the respondent suffered a personal injury by accident in the course of his employment on 12 April 2011.
  • The Arbitrator erred in law in finding that the respondent was entitled to a new prescribed amount pursuant to the Act for weekly payments having been paid the prescribed amount for a knee injury he sustained in the course of his employment with the appellant on 9 November 2009.
  • The Arbitrator erred in law in making a finding which was not supported by the evidence.

The worker was not represented at the hearing of the appeal, but he had filed written submissions which he said had been settled by his former lawyer.

His Honour Scott DCJ observed an Arbitrator is not bound by the rules of evidence (s 188(2)(a)) and is entitled to inform himself on any matter as he sees fit (s 188(3)) and is required to act according to good conscious and the substantial merits of the case (s 188(2)(b)) and that nothing in the Act detracts from the general duty of Arbitrators to act judicially: McNair v Press Offshore Ltd (1997) 17 WAR 191, 198. An Arbitrator is required to consider the rules of evidence and apply them in accordance with the merits and issues in the case.

His Honour also stated "an appeal involving a question of law extends to questions of mixed fact and law. So, if some question of law is involved the whole of the decision under appeal is open to review and not just the question of law: Pacific Industrial Co v Jakovljevic [2008] WASCA 60.

At paragraphs 49 and 50 of his reasons for decision His Honour wrote –

"In my view the Arbitrator was correct in his analysis in his findings that an injury in respect to which limb (d) of s 5 was sought to be enlivened was not covered by s 19(1)(b) of the Act and that the appellant would need to prove that his back injury was a personal injury by accident to result in s 19(1)(b) being applicable.
50 There is no reason why an injury suffered by a worker could not fall within more than one statutory definition in s 5."

As to the second ground of appeal His Honour said at 62 –

"This is a case where, as the Arbitrator correctly found, there are two work-related injuries." And at paragraph 67 of his reasons for decision – "Whilst this was perhaps an extreme example, it does demonstrate the need to take a common sense view. In this case the Arbitrator correctly found that the respondent's back injury was, itself, a personal injury by accident. Whilst it might be said that the respondent's knee injury predisposed him to subsequent injury, the Arbitrator was correct in his finding that the respondent's back injury resulted in the current incapacity."

And at paragraphs 68 and 69 –

"It would defy common sense to find that because the respondent would not have fallen but for his knee injury, it was that injury and not the back injury which materially contributed to his current incapacity. That reasoning in the circumstances of this case would, in addition, not accord with the policy underpinning the compensatory provisions of the Act.
69 The Arbitrator was not in error in finding that the back injury was a material cause of the respondent's incapacity and that the respondent was entitled to weekly payments to a new prescribed amount with respect to the extent of the incapacity from his back injury after 12 December 2014."

His Honour then stated that ground 3 of the appeal was "but a manifestation of grounds 1 and 2 and has been dealt with by me in my earlier findings".


His Honour went on to dismiss the appeal of the employer.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Kott Gunning is a proud member of

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Ashley Crisp
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.