Roberts and Comcare
[2008] AATA 495
•17 June 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 495
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/1849
GENERAL ADMINISTRATIVE DIVISION ) Re TIM ROBERTS Applicant
And
COMCARE
Respondent
DECISION
Tribunal J.W. Constance, Senior Member Date 17 June 2008
Place Canberra
Decision 1. The reviewable decision made by Comcare on 1 May 2007 is set aside.
2. In substitution for the decision set aside it is decided that pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) Comcare is liable to pay compensation to Mr Roberts in accordance with the Act in respect of an injury, being a momentary deformation of the intervertebral disc of the lumbo-sacral joint with consequent impingement of the left fifth lumbar nerve root, suffered by him on 21 November 2006.
3. The matter is remitted to Comcare to determine the amount of compensation payable to Mr Roberts in accordance with the reasons for this decision.
4. The parties have liberty to apply within 14 days in relation to costs. Should such an application not be made, Comcare shall pay the costs of the proceedings incurred by Mr Roberts.
..................[signed].................
J.W. Constance, Senior Member
CATCHWORDS
COMPENSATION – whether applicant suffered injury within the meaning of the Act – whether appropriate notice of injury was given – whether injury resulted in incapacity - decision set aside and substituted.
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14, 19, 53, 54, 58
Lees v Comcare (1999)56 ALD 84
REASONS FOR DECISION
INTRODUCTION
5. Mr Roberts claims to have injured his back in November 2006 whilst carrying out his duties as a member of the Australian Federal Police. Comcare has denied liability to compensate him in respect of the injury.
6. For the reasons which follow I have decided that Comcare is liable to compensate Mr Roberts and that Comcare ‘s decision should be set aside.
ISSUE FOR DETERMINATION
7. The parties agree that the only issue for determination is whether Comcare is liable to compensate Mr Roberts in respect of the claimed injury pursuant to subsection 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”). The question of the amount of incapacity payments under section 19 of the Act was before the maker of the reviewable decision but the parties agree this should be remitted to Comcare for determination.
STATUTORY BACKGROUND
8. Subsection 14(1) 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.
FACTS
9. Unless otherwise stated the following findings of fact are based on the evidence of Mr Roberts. I am satisfied of the facts found on the balance of probabilities.
10. Mr Roberts has been a member of the Australian Federal Police since 1983.
11. On 21 November 2006 he commenced his shift at 1 pm. At approximately 6pm he was sitting at his desk when an unattended telephone rang at a nearby desk. Mr Roberts answered the telephone. As the caller wished to leave a message Mr Roberts sat on the chair at the desk in order to write a note of the call. When he sat down the chair lowered rapidly and it felt to Mr Roberts that the gas cylinder forming part of the seat support had compressed to its full extent.
12. As the seat of the chair stopped descending Mr Roberts felt a sharp pain across his lower back and down his left leg. The pain persisted for several minutes. Mr Roberts walked around the office until the pain ceased and then continued working until the end of his shift at 11pm. He did not report the incident to anyone as he believed it was only a transient episode.
13. Mr Nguyen-Le gave evidence. He was the colleague of Mr Roberts on whose chair Mr Roberts sat. He said that he left work at 4 pm on 21 November 2006 and returned at approximately 8 am the following day. On his return he found a note of a telephone message taken by Mr Roberts. I accept this evidence.
14. When Mr Roberts awoke at approximately 7am on 22 November 2006 again he suffered pain in his back and left leg, but the pain was substantially more severe than he had experienced the previous evening. He described it as “quite excruciating.” The pain was such that he had difficulty in standing upright and had to lean on a wall to do so. He took medication previously prescribed for him in relation to another injury. This gave some relief.
15. The evidence of Mr Roberts as to his condition when he awoke was corroborated by the evidence of his wife, Mrs Roberts. She gave evidence, which I accept, that on the morning of 22 November 2006 Mr Roberts was lying in bed complaining of being in severe pain in his lower back and having difficulty getting out of bed.[1] She confirmed also that Mr Roberts had appeared to have difficulty standing upright and had leant on the wall as he did so.
[1] Ex.A4.
16. Mr Roberts had not suffered significant back pain between 2002 and 21 November 2006. I make this finding on the basis of the evidence of Mr Roberts and Mrs Roberts.
17. Mr Roberts was able to drive his children to school on the morning of 22 November although he continued to suffer pain which was severe on certain movements of his back. Shortly after 9am he telephoned the practice of his general practitioner, Dr Robertson. As Dr Robertson was unavailable he made the earliest available appointment to see another practitioner, Dr Bradbury. The appointment was in the morning of Friday 24th November, two days later. For the remainder of the day Mr Roberts rested and continued to take medication for pain relief.
18. Mr Roberts was not rostered to work on the two days following the incident at work. On Thursday 23 November he drove himself to Sydney and back to Canberra to attend a pre-arranged appointment for an unrelated medical condition. It was important that he attend this appointment. He continued to suffer pain in his back and he continued to take medication which reduced the pain level. Travelling did not cause him great discomfort as the seat of his vehicle was comfortable.
19. On Friday 24 November Mr Roberts attended the appointment with Dr Bradbury. He informed her of the incident which had occurred on 21 November and described to her the pain which he had experienced subsequently. He told Dr Bradbury that he had travelled to Sydney and back the previous day.
20. Dr Bradbury’s clinical note of the conversation in part reads as follows:
“acute back pain on tues at work
at work jumped into colleagues chair to answer phone
…… caused acute back pain in S?1 jt and L5 and pain radiated to lumbar spine and across lower back
got up and stretched and walked got on with day
then rest of that day felt as if left buttock was being squeezed than than [sic] painful slept ok that night
Wed same pattern
Thur drove to Sydney in automatic increase in pain in lower back with pai in left buttock shooting and pain in left leg
pain on walking cannot sit
…… straight leg raising Mr Roberts right 60 degrees left 10 degrees with severe pain
no further exam due to pain
fro [sic] rest and ice and panadeine forte and Indocid and review in 1 week” [2]
[2] Ex.A6.
Mr Roberts attended the review appointment with Dr Bradbury.
21. On 24 November 2006 Dr Bradbury issued a medical Certificate for Workers Compensation in which she stated that she found that Mr Roberts was suffering from lower back pain and that “based on the information available to me, this was caused by sitting in a colleagues chair on 21/11/06 caused acute back pain.” [3] She certified that she found Mr Roberts unfit to work from 24/11/06 to 1/12/06.
[3] Ex.A1 p6.
22. At 11.45 am on 24 November 2006 (after he had consulted Dr Bradbury) Mr Roberts telephoned his Team Leader, Ms Hutka, and reported the incident to her
23. On 4 December 2006 Mr Roberts lodged a Workplace Incident Report Form and a Claim for Workers Compensation with his employer.[4] These forms were delivered to, and collected from, Mr Roberts at his home by his employer.
[4] Ex.A1 p.20
24. By a notice dated 23 January 2007 and issued pursuant to section 58 of the Safety, Rehabilitation and Compensation Act 1988, Comcare requested from Mr Roberts further information in relation to his claim for compensation. Included in the notice was a request for “a detailed series of events that took place between 21 November 2006 and 24 November 2006.” [5] Mr Roberts replied by letter of 29 January 2007.[6] He stated in part that:
“…… on the morning of the 23rd I found myself unable to get out of bed and in extreme pain. I consumed more Panadeine Forte and remained in bed till forced to get up to use the bathroom. After that I stayed upright as my back was extremely painful and found the best relief was to keep moving and not lie down or sit (which was impossible). I rang the doctor and the first available appointment was with Dr Kerry Bradbury on Friday 24 November which I took.”
[5] Ex.1 p40.
[6] Ex.A1 p.42.
In the response Mr Roberts made no reference to his trip to Sydney.
25. By letter of 2 February 2007 Comcare advised Mr Roberts that his claim for compensation was rejected.[7] The letter enclosed a Statement of Reasons for this decision. The Statement referred in detail to his having travelled to and from Sydney on 23 November 2006 as recorded by Dr Bradbury in a medical report and in her clinical notes.
[7] Ex.A1 p.44.
26. Mr Roberts did not return to work until 21 February 2007. He was certified as unfit for work until this time by either Dr Bradbury or Dr Robertson.[8] The certificates continued to relate his unfitness for work to the incident on 21 November 2006.
[8] Ex.A!, pp.6, 7, 24, 32, 38.
Further medical evidence and opinion
27. On 2 January 2007 Dr Bradbury provided a report to Comcare.[9] In addition to the matters already referred to in these reasons she reported the following relevant matters:
·after the pain ceased on 21 November 2006 Mr Roberts felt, for the rest of the day, as though his left buttock was being squeezed;
·he had the same sensation the following day;
·on 23 November 2006 he drove to Sydney and noted an increase in lower back pain, with pain in the left buttock shooting down the left leg;
·on review on 1 December 2006 Mr Roberts complained of left lower back pain;
·the degree of back pain and disability reported by Mr Roberts was more than Dr Bradbury expected from the reported incident, but the incident may have been a trigger for more extensive inflammation;
·Mr Roberts’s case was complicated and she was unable to give more information on the cause of the back pain.
[9] Ex.A1, p.28.
28. In a report of 22 August 2007 Dr Bradbury stated that having reviewed the various imaging of Mr Roberts’s spine she was unable to say whether Mr Roberts had sustained a new injury in November 2006 or an aggravation of a pre-existing lower back condition. Further she was unable to determine whether the trigger for Mr Roberts’s lower back pain at that time was the chair incident or the travel to Sydney.[10]
[10] Ex.A9.
Dr Giblin, Orthopaedic Surgeon
29. Dr Giblin assessed Mr Roberts in March 2007 at the request of his solicitors. He did not give evidence but his report of 12 March 2007 was tendered by consent.[11]
[11] Ex.A1 p.53.
30. In the opinion of Dr Giblin Mr Roberts’s injuries were consistent with the accident of 21 November 2006 and “he most likely sustained an aggravation of his spondylolisthesis due to the incident described.” [12]
[12] At p.55.
Dr Eaton, Occupational Physician
31. Dr Eaton assessed Mr Roberts in September 2007 at the request of his solicitors. His report of 14 October 2007 was tendered by consent;[13] Dr Eaton did not give evidence. He reported in part:
“On noting the history of back injury and the radiological findings it appears, on the balance of probabilities, that the work-related injury which occurred on 21 November 2006 significantly contributed to the development of Mr Roberts’s chronic spinal pain and disability.”
[13] Ex.A8.
32. In his report Dr Eaton noted that the MRI of the lumbar spine (performed on 15 February 2007) revealed a grade 1 anterolithesis (slippage) at L5/S1. He reported that it appeared that that there had been a significant change radiologically as a result of the incident in November 2006, but that this needed confirmation by other specialists.
Professor Nade, Orthopaedic Surgeon
33. Mr Roberts was assessed by Professor Nade in October 2007 at the request of the solicitors for Comcare. Professor Nade provided two reports (30 October 2007, 8 April 2008). [14] He did not give evidence.
[14] Ex.A7.
34. On 30 October 2007 Professor Nade reported in part:
“ From the history given to me, as described above, it is likely that the acute onset of back pain with some radiation into the left leg, that settled after a short period of time allowing him to go out, have his dinner, continue to work, and then drive home, was consistent with the force applied to his buttocks as he came to a sudden and unexpected stop when sitting in a chair. His body weight should be taken into consideration in that assessment.
…
In my opinion, the direct upward force on to his trunk that would be expected from his description of what happened when he sat in the chair, is likely to be translated to the lumbo-sacral joint, predominantly the intervertebral disc and may have caused some momentary deformation of that disk with consequent impingement on the left fifth lumbar nerve root at the time."
35. Professor Nade provided his second report following a written request from Comcare’s solicitors in which they set out various versions of the events of the period 21-24 November 2006, including that recorded by Dr Bradbury in her report.[15] This information did not cause Professor Nade to change the opinion he had expressed in his earlier report. He also stated:
“ In my opinion it was quite possible for Mr Roberts to drive to Sydney on 23 November 2006 following the alleged incident on 21 November 2006 although he did not give me a history of doing so. It would not have been impossible although he may have experienced some pain, the level of which was sufficiently tolerable for him to carry out that activity."
[15] Ex. A7.
REASONING
36. In Lees v Comcare (1999) 56 ALD 84 at paragraphs 34 and 35 the Federal Court said:
The definition of “determination” makes it plain that it is part of the scheme of the Act for determinations to be made under the various sections referred to therein. In particular, the definition reveals that a determination may be made under s 14 of the Act. A determination under s 14 cannot amount to more than a determination that Comcare “is liable to pay compensation in accordance with this Act” in respect of a particular injury. The amount of compensation which Comcare will be liable to pay, the person or persons to whom the compensation will be payable and the time or times at which Comcare's liability will give rise to a present obligation to make payments are, as the above examination of the structure of the Act reveals, all matters to be determined under other provisions of the Act.
This is not to say that a determination under s 14 is without real significance. Such a determination will involve findings on the following matters. First, that an appropriate notice of injury has been given to the relevant authority as required by s 53 of the Act; secondly, that a claim for compensation has been made as required by s 54 of the Act; thirdly, that the person who made the claim or on whose behalf the claim was made was an “employee” at the time of the alleged injury (ss 4 and 5); fourthly, that the employee suffered an injury (s 4); and finally, that the injury has resulted in death, incapacity for work or impairment.
37. I now turn to deal with each of the requirements for a finding of liability under subsection 14(1) as referred to in the preceding paragraph.
Was the appropriate notice of injury given?
38. The issue of the sufficiency or otherwise of the notice given by Mr Roberts was not argued by Comcare at the hearing. However it was raised obliquely in its Statement of Facts and Contentions.
39. Mr Roberts gave verbal notice of the injury to his Team Leader on the third day after the incident, after he had consulted his general practitioner. He did not give notice in writing until he lodged his Claim Form and Workplace Incident Report Form on 4 December 2006. These forms were delivered to Mr Roberts by his employer and the completed forms were collected from him by his employer. I am unable to determine the extent (if any) of the delay in written notice was caused by the employer.
40. As Mr Roberts gave evidence that on the day following the incident at work he regarded the pain he was suffering as being caused by the incident I am satisfied that he did not give written notice of the injury as soon as practicable after he became aware of it. However I am satisfied that the requirements of subsection 53(3) have been met and the notice is taken to have been given.
41. Subsection 53(3) provides:
Where:
(a)a notice purporting to be a notice referred to in this section has been given to the relevant authority;
(b)the notice, as regards the time of giving the notice or otherwise, failed to comply with the requirements of this section; and
(c)the relevant authority would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause the notice shall be taken to have been given under this section.
42. Mr Roberts did give written notice on 4 December 2006. I am satisfied that Comcare would not be prejudiced by treating this notice as sufficient notice. The employer was able to investigate the alleged incident. The chair involved was available for inspection.[16] Mr Nguyen-Li remained a member of the Australian Federal Police. There was nothing put to me at the hearing, either by way of evidence or by argument, that Comcare had suffered any prejudice. In fact, Comcare conceded that the incident involving the chair had taken place in the manner Mr Roberts stated in his evidence.
[16] Ex.A1 p.22
Was the appropriate claim for compensation made?
43. I am satisfied that the claim made by Mr Roberts is a claim which meets the requirements of section 54 of the Act. [17] Comcare did not argue otherwise.
[17] Ex.A1 p.8.
Was Mr Roberts an employee of the Australian Federal Police at the time of alleged injury?
44. On the basis of the evidence of Mr Roberts I am satisfied that he was an employee of Australian Federal Police on 21 November 2006. This was not in dispute.
Did Mr Roberts suffer an injury within the meaning of section 4 of the Act?
45. Although Comcare raised alternative issues in its Statement of Facts and Contentions as to whether the alleged injury was an injury simpliciter or a disease this was not argued at the hearing, which proceeded on the basis that it was an injury simpliciter. Based on the evidence of Professor Nade I am satisfied that on 21 November 2006 Mr Roberts did suffer an injury simpliciter, which involved a momentary deformation of a disc with consequent impingement on the left fifth lumbar nerve root.
46. At the hearing Counsel for Comcare informed me that Comcare did not dispute that Mr Roberts suffered pain in the circumstances he described when he sat on the chair and that he suffered severe pain in his back upon waking the following morning. However I have not based my findings on any concession made by Comcare but on the evidence to which I have already referred.
47. Comcare has argued that the inconsistencies in Mr Roberts’s various accounts of the incident and the events of the following two days are such that I could not be satisfied on the balance of probabilities that there is the necessary causal link between the incident involving the chair and the incapacity and/or impairment suffered by him subsequently. In putting this argument Comcare did not resile from its acceptance that Mr Roberts suffered pain in the circumstances described.
48. The inconsistencies which Comcare relied upon are summarized as follows:
·Dr Bradbury’s clinical note of the consultation of 24 November 2006 (ex.A6) refers to Mr Roberts having the sensation of his left buttock being squeezed after the incident of 21 November 2006, whereas when he gave evidence Mr Roberts said that his symptoms passed shortly after the incident;
·Dr Bradbury recorded Mr Roberts as reporting the “same pattern” of symptoms the next day whereas Mr Roberts described to us his experiencing “severe pain” on that day;
·Mrs Roberts did not give evidence that she observed her husband appearing to be in pain after 7.10 am on 22 November 2006;
·Mr Roberts told his team Leader that he was “unable to move” on the day following the incident yet he was able to drive his children to school;
·Mr Roberts did not tell his Team Leader that he had driven to and from Sydney on 23 November 2006;
·in the letter of 29 january 2007 (which was a response to a request for further information) Mr Roberts did not advise Comcare of the Sydney trip;
·he did not advise Dr Giblin nor Professor Nade of the trip when he was assessed by them in March 2007 and October 2007 respectively;
·in a letter of 18 December 2007 (ex.R1) the solicitors for Mr Roberts advised Comcare that he did not recall whether he drove to Sydney on the day following the incident.
49. Mr Roberts says that he did not regard his trip to Sydney as relevant to his claimed condition and that it was for the purpose of obtaining treatment for a condition which he had not made widely known. He said that by December 2007 he had forgotten that he had made the trip two days after the incident and only recalled it after consulting his fuel cards and diary.
50. When he gave evidence Mr Roberts impressed me as an honest witness who gave his evidence to the best of his recollection. He disclosed the trip to Sydney to Dr Bradbury in November 2006 and to Dr Eaton in October 2007 Although he did not disclose it to Dr Giblin nor to Professor Nade, by the time they assessed him he was aware that Comcare knew of the trip. I am satisfied that he was not attempting to deliberately mislead Comcare.
51. The other inconsistencies referred to are not of a nature to cause me to doubt his veracity. The variations are no more than one would expect when a person is asked to recall events which occurred months, and in some cases, years previously. Dr Bradbury’s note is brief and clearly was not intended to be a detailed record of what Mr Roberts told her. I am not prepared to make any inferences adverse to Mr Roberts based on Dr Bradbuy’s clinical note.
52. Comcare accepts, and I am satisfied on the evidence before me, that Mr Roberts suffered pain immediately following the incident and again the following morning. He had not suffered back pain in the three years immediately proceeding the incident and it is unlikely that it was simply coincidence that he experienced the pain he did so soon after the incident, particularly in view of the evidence of Professor Nade who described the mechanical processes which may have occurred in Mr Robert’s spine when he sat on the chair.
53. I have taken into account the opinion of Dr Giblin that Mr Roberts “most likely sustained an aggravation of his spondylolethesis“ as a result of the incident. However Dr Giblin has not explained the mechanism of such an aggravation and I prefer the opinion of Professor Nade. It may be that the injury as described by Professor Nade itself caused an aggravation of his underlying condition and this has prolonged the effects of the injury. However, I am not required to decide the extent of any incapacity and I do not have the necessary medical evidence before me to do so.
Did the injury result in incapacity for work or impairment?
54. On the basis of the evidence that Dr Bradbury issued a certificate that Mr Roberts was unfit for work from 24 November 2006 to 1 December 2006 I am satisfied that the injury suffered by him resulted in incapacity for work. Although Dr Bradbury later expressed some doubt as to the cause of the injury she regarded the symptoms of which Mr Roberts complained as sufficiently incapacitating to require time off work. Based on other medical evidence I have found that these symptoms were a result of the injury suffered at work and the certificate issued by Dr Bradbury is sufficient basis on which to find that the injury resulted in incapacity for work.
55. The parties have not sought a finding as to the extent of the incapacity suffered by Mr Roberts. I do not have sufficient evidence to make such a finding in any event.
DECISION
56. The reviewable decision made by Comcare on 1 May 2007 is set aside.
57. In substitution for the decision set aside it is decided that pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) Comcare is liable to pay compensation to Mr Roberts in accordance with the Act in respect of an injury, being a momentary deformation of the intervertebral disc of the lumbo-sacral joint with consequent impingement of the left fifth lumbar nerve root, suffered by him on 21 November 2006.
58. The matter is remitted to Comcare to determine the amount of compensation payable to Mr Roberts in accordance with the reasons for this decision.
59. The parties have liberty to apply within 14 days in relation to costs. Should such an application not be made, Comcare shall pay the costs of the proceedings incurred by Mr Roberts.
I certify that the 59 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J.W.Constance, Senior Member.
Signed
……….…….............................................................................
Peter Horobin
AssociateDate of Hearing 14 April 2008
Date of Decision 17 June 2008
Counsel for the Applicant David Richards
Solicitor for the Applicant Andrew Finlay
Pamela Coward Higgins
Counsel for the Respondent Mark Best
Solicitor for the Respondent Andrew SchofieldSparke Helmore
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