Roberts and Comcare

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

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…