Ledwidge and Optus Administration Pty Ltd

[2008] AATA 58

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 58

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V 200600455

GENERAL ADMINISTRATIVE DIVISION		)
Re		ARTHUR JOHN LEDWIDGE

Applicant

And OPTUS ADMINISTRATION PTY LTD

Respondent

DECISION

Tribunal Regina Perton

Date22 January 2008

PlaceMelbourne

Decision The Tribunal sets aside the decision under review and substitutes a decision that Mr Ledwidge’s injury sustained on 8 January 2006 arose out of, or in the course of, his employment. The Tribunal remits the matter to the respondent for calculation of Mr Ledwidge’s entitlements pursuant to ss 14, 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (the Act).
The respondent shall pay Mr Ledwidge’s reasonable legal costs and disbursements of the review proceedings pursuant to s 67 of the Act.

(sgd) Regina Perton

Member

COMPENSATION – whether injury compensable – whether injury arose in the course of employment – outside normal working hours – tidying up of work vehicle at home – decision set aside

Safety, Rehabilitation and Compensation Act 1988 ss 4, 6, 14, 16, 19

Charles R Davidson & Co v M’Robb [1918] AC 304

Humphrey Earl Ltd v Speechley (1951) 84 CLR 126

The Commonwealth v Oliver (1962) 107 CLR 353

Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473

Gregory v Comcare Australia (1997) 72 FCR 196

REASONS FOR DECISION

22 January 2008 Regina Perton, Member     

1.      Arthur Ledwidge started working for Optus Administration Pty Ltd (Optus) in 1996.  From January 2002, his position was as a Customer Field Services Technician.  On 9 January 2006, Mr Ledwidge lodged a claim for compensation on the basis that he had injured his back on the previous day, a Sunday, while he was organising the interior of his employer-provided van for the coming week.  He returned to work on 22 February 2006.

2.      On 16 March 2006, Optus denied liability for compensation on the basis that Mr Ledwidge had not suffered an injury as defined in the Safety, Rehabilitation and Compensation Act 1988 (the Act).  The Optus delegate determined that as the injury occurred on a Sunday, it did not arise in the course of his employment.  Mr Ledwidge’s usual working days were Monday to Friday.  Optus also questioned if the injury had actually occurred in the circumstances claimed by Mr Ledwidge.  On 29 March 2006 Mr Ledwidge requested a reconsideration of the decision to refuse compensation.  On 28 April 2006, Mr Ledwidge was made redundant.  A review officer affirmed the original decision to refuse compensation on 16 May 2006.  Mr Ledwidge lodged an application for review with the Tribunal on 31 May 2006.

3.      The Tribunal must decide whether Mr Ledwidge suffered an injury in the course of his employment and is therefore entitled to compensation.  The major issue in this matter is whether an injury sustained outside regular working hours comes within the parameters of his employment. 

RELEVANT LEGISLATION

4. Section 14(1) of the Act provides:

Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

5. Section 4 of the Act, as it was at the relevant dates, provides:

(1)       In this Act, unless the contrary intention appears:

injury means:

(a)a disease suffered by an employee; or

(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or

(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;...

…

aggravation includes acceleration or recurrence.

…

(9)A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:

(a)an incapacity to engage in any work; or

(b)an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.

…

6. Section 6 of the Act sets out some of the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment.

7. Section 16 of the Act provides for the payment of compensation in respect of reasonable medical expenses incurred in relation to an injury, and s 19 of the Act provides for the payment of compensation for incapacity for work resulting from an injury.

Mr Ledwidge’s employment History

8.      Mr Ledwidge, who is now 47 years old, left school after the fifth form when he was 17 years old.  He started studying accounting but left after the first semester.  His first job was as a storeman with a gift importing warehouse, R M Hall.  He worked for that company for around eight years, progressing from storeman to warehouse manager and then to sales representative.  He found he was not suited to the sales role and left.  He then moved to Ramset Fasteners, nearer his home, where he worked as a  storeman for around five or six months.  He then worked for Megara, a company which built work stations, for about six to nine months in stores and doing forklift work.  He then worked in the engine assembly part of Kenworth Trucks, where he progressed from store person to expeditor.  He finished at Kenworth in 1988 when he was offered a position as a maintenance technician at the National Tennis Centre.  He stayed there until 1991.  He worked part-time for Channel 7 as a dogsbody where he performed a range of tasks, from heavy lifting to pulling cables behind cameramen to getting lunches for people.  He also worked for Gig Power, a company which set up concert venues.  He also worked for Drake Industrial on a casual basis, usually doing forklift driving or store material handling or related activities.  The companies Drake contracted with, for whom he worked, included Gordon & Gotch, a publishing company which provided magazines for newsagencies.

9.      Mr Ledwidge started working as a technician with Optus in March 1996 and remained with the company until late April 2006 when he was made redundant along with others doing the same job.  Before starting at Optus, he took part in three interviews and had a medical check up. 

10.     Optus provided Mr Ledwidge with a van to get him to the various work sites..  The van he drove was a Toyota HiAce which had a rear door and a sliding side door.  The van housed equipment which included a test television screen, wall plates and other mounted hardware, as well as consumables such as cables on wooden spools, plugs, screws and bolts, which were stored on shelves.  Technicians were allowed to take their vans home.  The technicians were not only parking the vehicles at their homes, preferably off-street, but also required to keep the exterior and interior of the van, identified as Optus vans by logos and advertising, as clean and tidy as possible.  Technicians communicated with Optus via two systems, a trunking radio system (TMR) and also via mobile data terminals (MDT).  The details of the day’s tasks or tasks allocated to a technician were viewed in the morning and also during the day via MDT.  The technicians’ usual working day was from 7.30 am to 3.30 pm Monday to Friday.

Mr Ledwidge’s injuries & medical condition

11.     Mr Ledwidge has unfortunately suffered quite a few workplace injuries during his working life.  All of his workplace injury claims were accepted until the injury under review.  A report by GKD Investigations dated 14 February 2006 notes that he has an exceptionally high rate of work related incidents (17 so far) with Optus regarding him as accident-prone.

12.     Mr Ledwidge’s workplace injury claims, at Optus and earlier, include several back-related injuries.  Mr Ledwidge acknowledged that he has experienced a number of back strains and experienced back pain from time to time.  He stated that he didn’t think much of these incidents as you expect some low back pain when you work in a physically demanding occupation.  He said that employees were required to fill out accident incident forms even if it was a minor matter.  He has also suffered finger, knee and other problems.   

13.     Mr Ledwidge recalled that the first workplace injury he experienced was a back strain at R M Hall in the late 1970s to early 1980s.  He was asked to empty a container filled with brass items and picked up a small carton that actually weighed nearly 100 kilograms, resulting in the strain.  While working for Drake at Gordon & Gotch in August 1994, Mr Ledwidge was stepping up to a forklift, slipped and fell, badly bruising his coccyx.  He does not believe he injured his lower back in that fall.  He said that he was treated by the company’s doctor and was off work for a short time, without any ongoing problems.  Mr Ledwidge was shown documentation in the course of these proceedings which records a back strain on 21 December 1994 at Gordon & Gotch.  He had not remembered that injury but noted that the claim form states that he lifted a parcel, twisted around to load a pallet and strained his back. 

14.     In July 2003, Mr Ledwidge injured his lower back when he slipped on a steep, wet and mossy customer driveway.  He stated that he did not fall but jarred his back.  A CT scan revealed a bulging disc a L4-L5.  He recalled that he was off work for a short period, underwent physiotherapy and believes he made a full recovery from the injury.  He pointed to another CT scan taken on 13 December 2004 which did not show disc protrusion at any level with the comment accompanying the scan being a normal appearance.  Mr Ledwidge’s compensation claim for this injury was accepted.  Mr Ledwidge said that he felt as fit as a mallee bull when he went back to work in October 2003.  He said that he had not had any injuries between 2003 and the injury that is under review.  

15.     Mr Ledwidge stated that he suffered the injury that is the subject of this claim on 8 January 2006.  After being taken to Maroondah Hospital, he was transferred to Bellbird Private Hospital, where he stayed for eight days.  He underwent treatment which diminished his pain and he returned to work in March 2006.  He stated that one morning in late June 2006 or early July 2006, he woke up and stretched in bed.  He suffered a recurrence of back pain in the same location as the pain he had experienced on 8 January 2006.  The pain worsened during the day.  Mr Ledwidge consulted his general practitioner and was referred to an orthopaedic surgeon, Mr Michael Johnson, who operated on him on 30 January 2007.  He stated that he had improved since the surgery but still continues to suffer low back pain. 

16.     Mr Ledwidge stated that he believed he had made a full recovery from all prior back injuries including the one sustained in 2003.  He stated that he was given a full clearance on 20 October 2003.  He believes that his current and ongoing problems are directly related to the injury he sustained in January 2006.  He said that since then the pain has consistently been in exactly the same site. 

17.     Mr Ledwidge returned to work in February 2006 under a Return to Work scheme arranged by a rehabilitation company.  He said his back felt fine at that time but he still experienced some numbness in the toes.  He said that he was back to normal duties at the time of the redundancy.  He described a relapse that occurred on the day of an industrial relations rally in which he had a role.  He stretched before getting out of bed and experienced a similar pain to that which he had experienced previously.  He went to the rally and then saw his general practitioner, Dr Gail Dixon, who referred him to Mr Michael Johnson again.  Surgery in January 2007 alleviated much of the pain.

18.     Metropolitan Ambulance Service records show that a call was received at 11.26 am, an ambulance was despatched at 11.32 am and the officers were with Mr Ledwidge at 11.40 am.  The ambulance left his Kilsyth home at 11.56 am and arrived at the Maroondah Hospital at 12.07 pm.  Mr Ledwidge’s condition was described in the handwritten ambulance record as back pain: recent non-traumatic.  A handwritten note from a medical officer at Maroondah Hospital, dated 9 January 2006 and addressed to a colleague, indicates that Mr Ledwidge was admitted the previous day having injured himself lifting some heavy equipment into his work vehicle. 

19.     Mr Ledwidge provided Certificates of Capacity to Optus indicating his inability to return to work.  A medical practitioner at Maroondah Hospital examined him on 9 January 2006 and certified him unfit for any duties until 19 January 2006 with the diagnosis being musculoskeletal back pain and ? recurrence prolapsed disc L3/L4.  On 31 January 2006, Dr S A Schweitzer, a pain management specialist, certified that Mr Ledwidge was suffering from sciatica/severe pain as a result of aggravation of previous back injury and that he was unfit for work from Sunday 8 January 2006 until Friday 17 February 2006 inclusive.   

20.     Dr Adrian J Munyard, orthopaedic surgeon, examined Mr Ledwidge and prepared a report dated 21 February 2006 at the request of Optus’ insurer.   Dr Munyard indicated that Mr Ledwidge suffered from a prolapsed interverterbral disc on the right at L5/S1.  Dr Munyard believed that work factors had materially contributed to the contraction of the disc prolapse.       

What happened in January 2006?

21.     Mr Ledwidge had worked over the Christmas holiday period.  He was divorced with no children and so was happy to be on duty as part of the skeleton crew working when many of his colleagues were on leave.  He said that December 2005 had been busier than expected.  He put in orders for stores he required, which usually were delivered twice a week on two days notice.  He put in three orders during December which were not delivered until Friday, 6 January 2006, when they were simultaneously delivered.

22.     Mr Ledwidge stated that Friday 6 January 2006 was a normal work day but not unusual.  Mr Ledwidge said that he had a range of trouble calls to complete that day around the Glen Waverley area.  He said that around 11.30 am or so, he had just commenced a job when the chaser van that delivers the stores arrived.  Its driver unloaded all of the orders that Mr Ledwidge had placed earlier in December on the nature strip beside his van.  There were large and small cartons, rolls of cable and two bundles of conduit as well as some other items.  Mr Ledwidge had been up a pole when the chaser van arrived.  He told the driver that he would check the consumables when he got home.  Mr Ledwidge said that after he finished that customer’s job, he moved the supplies into the van and worked the rest of his day around the additional material, which he said was the largest amount he had ever received on the one day.  He said that he felt a little stiff in his lower back after moving all the supplies into his van. 

23.     Mr Ledwidge said that he parked the van in the driveway after finishing work around 3.30 pm that Friday.  He went out that night, got home in the early morning and then slept in.  He said that he moved one carton out of the van on Saturday afternoon and said he was considering returning some of the supplies as they were not meant to store equipment at home.  On Saturday night, he went out with a friend, Rob Roder, who runs karaoke sessions at pubs.  Mr Ledwidge stated that as a former roadie, he often helps his friend set up the equipment, without being paid to do so.  He stated that he then remained at the Grand Hotel in Healesville, socialising.  He and Mr Roder together carried a console which weighs around 20 kilograms and put it on the pool table, a distance of about three metres from the car with three steps in between.  His friend often carries it on his own.  Mr Ledwidge said that their routine on karaoke nights was that Mr Roder would drive to Mr Ledwidge’s home, and then Mr Ledwidge would drive them both to the venue and then back.  Mr Ledwidge said that he rarely drinks at the karaoke night and has never been a heavy drinker.  He is also allergic to beer.  He is usually the designated driver when he goes out.  Mr Ledwidge said that he felt fine and that nothing unusual happened that night.

24.     Mr Ledwidge described what happened on 8 January 2006 in his written statement, dated 24 July 2007, as follows:

On the Sunday morning I got up and decided to tidy the van.  I went out to the van and bent into it to sort out some material.  As I was bending I twisted as I was going to sit on the step.  As I did so, I felt this massive pain in my low back.  The pain was so bad I collapsed and I lost consciousness.  My friend, Craig, with whom I shared a house at the time found me next to the van in a foetal position.  Another mate had stayed over and they got me onto the couch and lay me down.  I rung the ambulance which came and took me to Maroondah Hospital which referred me on to the Maroondah Clinic….     

25.     In his oral evidence, Mr Ledwidge said that he got up on Sunday 8 January 2006 between 10 am and 11 am.  He had some toast and a cup of tea and then thought about his plans for the day.  He decided that he needed to remove the stock from the vehicle and swab the vehicle out.  Mr Ledwidge said that he usually spent time on a Sunday organising his vehicle for the following day’s work.  He said that he cannot work in a messy vehicle as it makes it harder to get the job done.  He said that he did not tidy the vehicle every Sunday but did so quite often.  He said that he went through the back door of the house, walked through the carport to where the van was parked in  the garage.  Mr Ledwidge said that he believes he opened the sliding door of the van but could not recall what happened from that point on until he was being assisted into the house.  He has flashbacks of what he possibly did but was not one hundred per cent certain.   He described what he normally did when entering the van.  He said that his friend Craig had told him that he found him next to the van in a foetal position.  Craig and another friend who had stayed overnight at the house helped him through the back door and then onto the couch.  Mr Ledwidge said that he called the ambulance after the telephone was placed within his reach.  He described the arrival of the ambulance and said his memory of what he said to them was vague as he was given something to inhale by the ambulance officers to alleviate the pain.  It worked. 

26.     Mr Ledwidge then described his recollections of the Maroondah Hospital, his transfer to the Bellbird Private Hospital and his treatment there.

27.     Rob Roder provided a written statement dated 17 July 2007.  He has known Mr Ledwidge since they worked together at Optus between 1999 and 2005.  He now runs karaoke sessions at hotels, providing the equipment.  He said that he had suffered a shoulder injury and for several weeks prior to January 2006, Mr Ledwidge had accompanied him to the hotels and helped him set up the equipment.  Mr Roder said that Mr Ledwidge had not complained to him of back pain in the past, including the night before the injury.  Mr Roder said that when he left early on Sunday morning after they had driven home from the karaoke venue, Mr Ledwidge was his usual self and did not complain of any pain.  He said he had been surprised to get a telephone call on Sunday night to let him know Mr Ledwidge was in hospital. 

28.     Craig Gaudion, who was sharing his house with Mr Ledwidge at the time of the injury, was the person who discovered Mr Ledwidge near his van after the injury.  He provided written and oral evidence about what happened on 8 January 2006.  He was there when the ambulance came.  His evidence indicates that the injury occurred on that date and in the circumstances provided in the claim.

29.     Notwithstanding some inconsistencies in the evidence, the Tribunal accepts Mr Ledwidge’s evidence that he had gone to his van on Sunday morning, 8 January 2006, intending to tidy up the supplies that had been delivered to him on the previous Friday.  The Tribunal is satisfied that he had opened the side door to his van and was starting the tidying up when he aggravated his previous back injury.  The Tribunal does not draw negative inferences from Mr Ledwidge’s failure to remember some of the details of the incident or of his actions in the hours thereafter. 

Was Mr Ledwidge injured in the course of his employment?

30.     Mr Ledwidge said that Optus, through its team leaders, encouraged the technicians to keep their vehicles clean and tidy.  He said that he washed the vehicle every second week to coincide with team meetings.  He said that it was general conversation at the meetings during which the team leader would comment on the appearance of the vans.  Asked if they were asked to clean the van outside normal hours, Mr Ledwidge said that it was not said so explicitly but always intimated by the team leaders that they do so.  He said that the team leaders definitely knew that the vans were tidied outside office hours.  Mr Ledwidge said that he was also quite fastidious about the inside of his van as it assisted in working efficiently when on site.

31.     Mark Shean, who has worked as a Customer Field Technician for over eight years at Optus, provided a statement dated 3 August 2007 and gave oral evidence at Optus’ request.  He knows Mr Ledwidge as a former colleague but they were not in the same team.  Mr Shean estimated that he had usually only seen Mr Ledwidge twice a year at staff meetings.  His description of the working day and the provision of stores ordered accorded with Mr Ledwidge’s description.  Mr Shean admitted that his was not the most tidy of vans.  In relation to his practice of sorting out stores after receipt, he commented as follows in the written statement:

11…..The delivery guy hands over the equipment in boxes and I prefer to sort the times into my van there and then.  For me, this process takes about 20 minutes or so, and rarely longer than that. 

12.There has been the odd occasions when I have only partly sorted the goods, and have left the rest until later.  There is generally an opportunity at some stage during the day to attend to this, such as between jobs, whilst waiting for a customer or before the end of my shift.  It is not hard to find a few spare minutes here and there during the day.

13.It is not a big task to arrange the stock into the van.  I understand Arthur claims that he had some 13 boxes delivered in one go.  That must have been a huge order, which is quite unusual.  The most I have ever had delivered would be 6 to 7 boxes in one hit.

14.  …

15.  We are able to log off the computer system which records our work schedule and tasks etc to sort out the stores, as this does not impact key performance indicators (KPIs) used for statistics.  There is no “official” time off for this activity, however it is accepted as the norm as otherwise we cannot do our job properly.  There is no sanction for taking time out to sort out the vans during core working time.

16.  I have never had the need to rearrange my van on weekends or after work hours.  I have got better things to do with my time than that and I imagine a worker would have to be pretty keen to use personal time for such when it can easily be done during work hours.  Then again, that is a personal choice, I suppose.

17.  There is no requirement or expectation on the part of management for us to sort out stock outside working hours.  I have heard of others fiddling around with their vans on weekends, but that is their choice.

32.     Mr Roder, a former Optus technician, commented in his written statement:

2    ….I can verify that it was a requirement and in fact part of a Technician’s job to maintain and keep clean and tidy their work vehicle outside of working hours.

33.     Mr Terry Haley who is a Customer Field Technician/Technical Trainer at Optus and who was acting team leader when the injury occurred, provided a statement dated 10 February 2006 to GKD Investigations stating amongst other things, that:

…

All the Field Technicians start and finish in the field, so Arthur takes his van home. 

…

It is normal for Field Technicians to fiddle around with and restock their trucks etc outside of working hours and at weekends.  Every Technician would have worked on or accessed their van on the weekends etc to organise it for the week, wash it and tidy up etc. 

…

Whichever of the…activities he was doing, neither of them on the surface would appear to be an incorrect or inappropriate work practice…

34.     At the hearing, Mr Haley confirmed that a number of technicians work on their vans outside normal working hours.

35.     For an employee to be entitled to compensation, an injury or the aggravation of an injury must have arisen out of, or in the course of his employment.  Ms C Serpell, counsel for the applicant, submitted that Mr Ledwidge was injured and/or aggravated an injury while doing something he was reasonably required to do in order to carry out his duties or something incidental to those duties.  Mr J Wallace, counsel for the respondent, disagreed. 

36.     There have been many cases, with differing outcomes, as to whether an employee qualified for compensation where an injury occurred outside normal working hours.  Each has turned on its own particular facts.  

37.     In the High Court case of Humphrey Earl Limited v Speechley (1951) 84 CLR 126, Dixon J stated (at 133):

…The acts of a workman which form part of his service to his employer are done, needless to say, in the course of his employment. The service is not confined to the actual performance of the work which the workman is employed to do. Whatever is incidental to the performance of the work is covered by the course of the employment. When an accident occurs in intervals between work the question whether it occurs in the course of the employment must depend upon the answer to the question whether the workman was doing something which he was reasonably required, expected or authorized to do in order to carry out his duties…

38.     In Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473, an employee who worked in a remote area of Western Australia, was injured in a vehicle accident while sightseeing on his day off. His employer had encouraged the employee to take the trip. The High Court determined that the employee was entitled to worker’s compensation for the injury. Amongst the cases cited in the joint judgement of Mason CJ, Deane, Dawson and McHugh JJ, was The Commonwealth v Oliver (1962) 107 CLR 353 , in which a worker was awarded compensation when he was injured while playing cricket in front of the hanger where he worked during his lunch break. Their Honours commented at [16]:

16.Moreover, Oliver and the cases which follow it show that an interval or interlude in an overall period or episode of work will ordinarily be seen as being part of the course of employment if the employer, expressly or impliedly, has induced or encouraged the employee to spend the interval or interlude at a particular place or in a particular way….in determining whether the injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the employment “and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen”.

39.     In the above cases, the decision in Charles R Davidson & Co v M’Robb [1918] AC 304 was cited, in which Lord Finley LC said, at 314:

“Arising out of the employment” obviously means arising out of the work which a man is employed to do and what is incident to it – in other words, out of his service.  “In the course of employment” must mean, similarly, in the course of the work which the man is employed to do, and what is incident to it – in other words, in the course of his service.  

40.     In Gregory v ComcareAustralia (1997) 72 FCR 196, it was determined that a RAAF fireman who was playing soccer at his farewell function was not injured in the course of employment. Cooper J, whilst finding that in this particular case the injury was not compensable, went on to say at 202:

That is not to say that an injury occurring in an interval between two discrete periods of work can never be one occurring in the course of employment. 

41.     There is evidence before the Tribunal that Optus field technicians were required to maintain the interior and exterior of their vehicles in a way that brought credit to Optus.  Their vehicles were kept at their homes outside regular working hours.  The normal working hours were on Monday to Friday.  The field technicians’ vans and the supplies within them were part of their workplace.  Mr Ledwidge gave evidence that he and other field technicians tidied up and washed their vans outside regular hours, often on the weekend.  Mr Haley, Mr Roder and even Mr Shean, who did not do so on weekends, corroborated the evidence that many of the technicians worked on their vans at the weekends.  On the day of Mr Ledwidge’s injury, he had even more reason than usual to tidy up his van, having received three lots of supplies on the one day.  Mr Ledwidge was engaging in an activity he was reasonably expected to do in relation to his employment, namely organise his van so that he could work efficiently.  There was no directive that employees were not to do so on the weekend.  It was obviously a common practice of field technicians to do so.  It appears that Optus was advantaged by having its field technicians being prepared to undertake work-related activities outside regular hours for no pay, thereby enabling them to devote their regular working hours to customers’ needs and consequently to work more efficiently. 

42.     The Tribunal finds that Mr Ledwidge’s aggravation of his back injury arose out of, or in the course of, his employment.  The Tribunal remits the matter to the respondent to calculate the amount of compensation and its duration.

DECISION

43. The Tribunal sets aside the decision under review and substitutes a decision that Mr Ledwidge’s injury sustained on 8 January 2006 arose out of, or in the course of his employment. The Tribunal remits the matter to the respondent for calculation of Mr Ledwidge’s entitlements pursuant to ss 14, 16 and 19 of the Act. The respondent shall pay Mr Ledwidge’s reasonable legal costs and disbursements of the review proceedings under s 67 of the Act.

I certify that the forty three [43] preceding paragraphs are a true copy of the reasons for the decision of:

Regina Perton, Member

(sgd)    Ursula Noye

Clerk

Date of hearing:  6, 7 & 8 August 2007
Date of decision:  22 January 2008

Counsel for applicant:                  Ms C Serpell
Solicitor for applicant:                  Ryan Carlisle Thomas
Counsel for respondent:              Mr J Wallace
Solicitor for respondent:              Australian Government Solicitor