‘Your word against mine’: Where an aggravation of pre-existing conditions appeal falls short

In the recent Federal Court case of McEwan v Comcare [2023] FCA 447, Abraham J dismissed the applicant’s appeal for psychological injury on the basis that the argument of aggravation of pre-existing condition did not arise in proceedings prior to appeal.

The Court held that an applicant may only bring a different case to appeal if the injury period assessed by the Tribunal was too limited or the initial case had inferred a change of condition.

The decision highlights the importance of presenting all facts before the Tribunal to reduce an applicant’s opportunity for appeal on an evolution of evidence.
Key Points
  1. McEwan has set out the limitations for applicants raising an aggravation of injury as a ‘back-up plan’ when their appeal fails in the Tribunal.
  2. In doing so, the Federal Court has affirmed that evidence of an aggravation of pre-existing conditions must be made out in prior proceedings to be considered on appeal.
  3. Respondents should ensure to place emphasis on factual findings in psychological injury claims and articulate consideration for aggravation of an ailment in anticipation of appeal

Background to the Tribunal case

The applicant initially brought the matter before the Administrative Appeals Tribunal seeking to review the reviewable decision which affirmed Comcare’s denial of liability for major depressive disorder and generalised anxiety disorder (MDDA) resulting from workplace bullying pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth). Liability was denied on the basis that the applicant’s employment did not significantly contribute to his persisting psychological condition.

While two psychiatrists initially identified a causal relationship between the injury and employment, the Tribunal found the applicant’s testimony to be incongruent with the presented facts. Notably, the applicant’s submissions maintained that workplace conditions alone significantly contributed to his psychological injury. The respondent considered aggravation of an ailment in their Statement of Facts, Issues and Contentions though it was answered in the negative.

Thus, the Tribunal found that Comcare was not liable for the claimant’s injury s14 of the SRC Act.


The applicant raised the following grounds of appeal:

  1. The Tribunal erred in finding that the ailment was not contributed to, to a significant degree, by the Applicant's employment for the purposes of s5B(1) of the SRC Act.
  2. The Tribunal failed to take relevant considerations into account and took irrelevant considerations into account in making the decision.
  3. The Tribunal should have found:

        (a) the ailment (and or an aggravation of such ailment) was contributed to, to a significant degree, by the Applicant's employment for the          purposes of s5B(1) of the SRC Act;

        (b) the Applicant (accordingly and or otherwise) suffered an injury for the purposes of s5A(1) of the SRC Act; and

        (c)  the injury resulted in incapacity for work and or impairment for the purposes of s14 of the SRC Act.

The appeal failed on all three grounds.

Why the appeal failed

With respect to liability for aggravation of injury, the respondent’s submission relied on the finding of three key elements:

  1. that the nature of the pre-existing non-work-related psychiatric condition which is alleged to have been aggravated;
  2. what employment-related factors acted to aggravate that underlying condition;
  3. expert medical evidence as to the existence of the aggravation of the underlying condition.

Judge Abraham contended that the submissions advanced before the Court produced a different case to one heard in the Tribunal and that, since aggravation of a pre-existing condition was not an alternate case previously produced by the applicant party, it could not be considered on appeal.

For an applicant party to advance a different case than the one put before the Tribunal as in Ellison v Comcare, medical opinions regarding the evolution of the condition over time must be relied upon in prior inquisitorial proceedings.

An assumption was also made on the flexibility of the Court pursuant to Telstra Corporation Ltd v Hannaford, indicating that the evidence set up a “very clear aggravation-type issue”. This assumption failed to materialise on account of a lack of evidence that indicated as such in addition to the irrefutability of the Tribunal’s factual findings.

Ultimately the Court held that the case in the tribunal was not advanced on the basis of aggravation thus, it could not be considered on appeal.
What are the implications of the Federal Court’s decision for insurers?
It is clear that early consideration for the possibility of aggravation of injury, regardless of whether it exists within evidence, acts as a defence if aggravation is raised on appeal. Ensuring that all relevant evidence is brought before the Tribunal is crucial, as the Court established that there is no longer any ground of appeal on the Tribunal’s factual findings.
Importantly, applicant’s will not be able to suggest aggravation of injury on appeal as a type of ‘back-up’ plan when the case fails at Tribunal. This reinforces the importance of establishing a comprehensive and accurate factual basis prior to litigation to prevent the risk of appeal.
Please reach out to Naomi Tancred, Partner should you require any further information or assistance.
Find out more about our Workers Insurance services here.

Post written by Hicksons' Partner, Naomi Tancred and Paralegal, Jordan Lau.

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