You lifted something at work, or you felt your back go during a shift, and now you cannot do your job. You lodge a claim, and back comes a letter with a scan report attached and a single word doing all the heavy lifting. Degeneration. The insurer says your problem is wear and tear, or age, or a condition you already had, and therefore not the fault of your work. Your payments are refused, or stopped, or your surgery is declined.
It is one of the most common tactics in the New South Wales workers compensation system, and one of the most misunderstood by the people it is used against. Here is the point that letter does not tell you. The law does not require you to have been in perfect health before your injury. It has always accepted that work can aggravate a condition you already had, and that when it does, you can still be entitled to compensation.
This guide explains what the insurer is really arguing when it blames degeneration, why the argument is so often flawed, the two very different ways it gets used against you, and how to challenge it. Please treat it as general information rather than advice about your own claim, because every matter turns on its own medical evidence and circumstances. You should seek legal advice about your particular situation before making decisions about your claim.
What the insurer is actually arguing
When an insurer relies on degeneration, it is usually making one of two arguments, and it helps to know which one you are facing, because they are answered differently.
The first is a liability argument. The insurer says your symptoms are the natural result of an existing condition, such as age related changes in your spine, rather than anything your work did. If it can make that stick, it can deny the claim or stop your benefits on the basis that there is no work injury at all.
The second is an impairment argument, which tends to come later. Here the insurer accepts you were injured at work, but says a portion of your permanent impairment is due to a condition you already had, so your impairment figure and any lump sum should be reduced. This one turns on a specific provision, section 323, which we come to below.
The word degeneration sounds authoritative, and it is often lifted from an MRI or a report by a doctor the insurer sent you to. But a scan finding is not the same as a legal conclusion, and this is where a great many of these decisions fall apart.
Why a degeneration finding is not the end of your claim
The single most important thing to understand is that aggravating a condition you already had is a compensable injury in its own right.
Under section 4 of the Workers Compensation Act 1987 (NSW), an injury includes not only a sudden personal injury at work, but also the aggravation, acceleration, exacerbation or deterioration of a disease, where your employment was the main contributing factor to that aggravation. In plain terms, if your work took a condition that was not troubling you and made it symptomatic, or made an existing problem materially worse, that is an injury the law recognises. You do not have to prove your back was pristine before the shift. You have to show that work did something to it.
There is a second reason these findings are weaker than they look. Degenerative changes are extraordinarily common on imaging, including in people who have never had a day of pain in their lives. Large studies of people with no symptoms at all routinely find disc bulges, disc degeneration and arthritic changes on their scans. So the fact that your MRI shows degeneration tells you very little on its own. Plenty of people walk around with the same scan findings and full function. The real question is not what your scan looks like, but why you were working without difficulty before and cannot work now.
That is why the timing of your symptoms matters so much. If you were doing your full duties, without complaint, right up until the day your work injury occurred, that history is powerful evidence that whatever was quietly present on a scan was not the thing stopping you working. Your work was.
The two ways degeneration is used against you
Because the two arguments have different consequences and different answers, it is worth setting them side by side.
| Denying or stopping your claim | Reducing your impairment payout | |
|---|---|---|
| What the insurer says | Your symptoms are caused by degeneration or an existing condition, not your work | Part of your permanent impairment is due to a condition you already had |
| The provision relied on | Section 4, the definition of injury | Section 323, deduction for a previous injury or existing condition |
| What actually has to be shown | Whether your work caused the injury, or was the main contributing factor to the aggravation of a condition | What proportion of your impairment is genuinely due to the earlier condition |
| How it is answered | Evidence that you worked without difficulty before, and that work aggravated the condition | Evidence that the earlier condition did not contribute, or contributed less than assumed |
The contributing factor tests, in plain English
Whether your work caused your injury is decided against a legal test, and the test is not the same for every kind of injury.
For a straightforward personal injury, such as a specific incident at work, your employment must have been a substantial contributing factor to the injury. That is a meaningful connection, and it does not mean work has to be the only cause.
For a disease injury, or the aggravation of a condition you already had, the test is higher. Your employment must have been the main contributing factor to the aggravation. That word main matters, because it means your work has to be the leading cause of the aggravation rather than just one of several. This is exactly the ground on which degeneration arguments are fought, and it is why the medical evidence about causation has to be precise rather than general.
The section 323 trap, and why it matters beyond this month
The impairment argument deserves particular attention, because it can quietly cost you far more than a single benefit.
Section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) requires that, when your permanent impairment is assessed, a deduction be made for any proportion of that impairment that is due to a previous injury or a condition or abnormality you already had. Where the exact proportion is difficult or costly to determine, the law allows an assumed deduction of one tenth, unless that assumption is at odds with the evidence.
That may sound minor, but a small deduction can have an outsized effect. Permanent impairment thresholds are hard gates. A deduction that drops an assessment from 15 per cent to 14 per cent can remove your entitlement to a lump sum and can close off a work injury damages claim, which generally requires at least 15 per cent whole person impairment for a physical injury. A percentage point is not a rounding issue when it sits on a threshold.
Evidence that answers a degeneration argument
Because these disputes are decided on medical evidence, the response has to be built from evidence rather than frustration. The material that tends to make the difference includes the following.
A clear account of your function before the injury, showing you were performing your full duties without relevant symptoms, is often the strongest single element. Records that establish this, such as your work history, the absence of earlier complaints or time off for the same problem, and the physical demands of your role, all support it.
A focused report from your treating doctor or specialist matters enormously. A report that simply names your diagnosis is not enough. It needs to address the actual question, whether your work caused the injury or was the main contributing factor to the aggravation, and, on the impairment side, whether and to what extent any earlier condition genuinely contributes to your current impairment.
Contemporary evidence of the mechanism of injury, such as what you were doing, how it happened and what you felt at the time, helps counter the suggestion that your condition simply emerged on its own.
How to challenge the decision
A degeneration based refusal is a decision, and decisions can be disputed. In broad terms the path looks like this.
- Read the decision and identify exactly which argument is being made, liability or impairment, because your response depends on which one it is.
- Obtain the report the insurer relied on, and the documents given to its doctor, so you can see what the opinion was actually based on.
- Ask your treating doctors to respond specifically to the causation question and, where relevant, to the extent of any contribution from an earlier condition.
- Gather the objective evidence of your pre injury function and the mechanism of injury.
- Lodge a dispute in the Personal Injury Commission, the independent tribunal that resolves workers compensation disputes in NSW. Where the issue is medical, such as your degree of permanent impairment, it is referred to an independent Medical Assessor.
- Get legal advice early. For most workers compensation disputes, your legal costs may be funded through the Independent Review Office, which means you can often be represented at no cost to you.
That last point is worth dwelling on. The funding available to injured workers means that challenging a degeneration decision does not have to come out of your pocket, so cost should not be the reason a wrong decision goes unchallenged.
How Stephen Young Lawyers can help
Degeneration arguments succeed when they go unanswered, and they fail far more often than injured workers realise once the right evidence is put forward. The difficulty is that the response is technical. It requires knowing which test applies, what your treating doctors need to address, and how the section 323 deduction really works rather than how an insurer’s doctor has applied it.
An experienced personal injury lawyer obtains the report and the material behind it, identifies whether the argument is about liability or impairment, briefs your doctors so their reports answer the right question, and runs the dispute through the Personal Injury Commission. Because a wrongly applied deduction can close off entitlements well beyond your weekly payments, including a work injury damages claim, these disputes are worth taking seriously from the start.
If you want to read more, we have a related guide on challenging an unfair or inaccurate IME report, since degeneration opinions usually come from an insurer arranged examination. You can also read about your broader entitlements on our workers compensation and work injury damages pages. If your injury has permanently affected your ability to work, a Total and Permanent Disability claim through your superannuation may also be available. As an Accredited Specialist personal injury firm based in Sydney CBD, with a multilingual team and a No Win No Fee approach for eligible matters, we can review the decision and tell you where you stand.
No lawyer can promise you a particular outcome, and every claim turns on its own evidence. What can be said is that a degeneration finding is an opinion, not a verdict, and the law has never required you to have been uninjured before your work injury to be entitled to compensation.
Speak with an experienced workers compensation lawyer today
If your insurer has blamed degeneration or a condition you already had for a work injury anywhere in New South Wales, do not assume the decision is correct. These decisions are among the most commonly overturned, but time limits apply, so it is worth acting promptly.
Contact Stephen Young Lawyers today for a free, no obligation consultation. Call us or get in touch through our website to speak with an experienced personal injury lawyer about the decision and how to challenge it.