Eddie Khoshaba and Linfox Armaguard Pty Limited - [2015] AATA 85

[2015] AATA 85

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2013/4543

2014/3174

Re

Eddie Khoshaba

APPLICANT

And

Linfox Armaguard Pty Limited

RESPONDENT

DECISION

Tribunal
Senior Member J F Toohey
Dr Mike Couch, Member

Date 19 February 2015

Place Sydney
The Tribunal affirms the decision that the effects of Mr Khoshaba’s physical injuries ceased by 7 March 2013. The Tribunal sets aside the decision in respect of Mr Khoshaba’s claim for psychological injury and instead decides Mr Khoshaba suffered a psychological injury secondary to his physical injury for which the respondent is liable to compensate him.
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Senior Member J F Toohey
CATCHWORDS – Compensation – liability accepted for multiple injuries following fall at work – whether effect of injuries had ceased – whether respondent liable to compensate applicant for secondary psychological condition – decision under review in respect of physical injuries affirmed – decision under review in respect of psychological injury set aside
Legislation
Safety Rehabilitation and Compensation Act 1988
REASONS FOR DECISION
Senior Member J F Toohey
Dr Mike Couch, Member
Background

Mr Eddie Khoshaba was working as a security guard on 27 December 2010 when he slipped and fell approximately half a metre from the back of a truck onto concrete.
On 6 January 2011, Mr Khoshaba claimed compensation under the Safety Rehabilitation and Compensation Act 1988 (SRC Act) for injuries sustained in the fall. The respondent accepted liability to compensate him for “fracture to right wrist, laceration to left side of upper lip/bruising to face and head and soft tissue injury to neck/right shoulder/right knee and concussion”.
Mr Khoshaba was off work for approximately six months after the accident. He returned to work on light administrative duties around 1 June 2011. He did not return to his pre-injury duties on armoured trucks. He gradually increased his hours on light duties to six hours a day, four days a week, until January 2013 when he had time off work for the surgical repair of an inguinal hernia unrelated to his employment.
On 7 March 2013, the respondent determined that the effects of Mr Khoshaba’s injuries had ceased and it was not presently liable to compensate him for medical expenses or incapacity resulting from his injuries. The respondent affirmed its determination on 5 September 2013.
In March 2013, the respondent suspended Mr Khoshaba’s employment on the ground that his fitness for work following the surgery for the hernia was in doubt. On 19 June 2013 his employment was terminated.
On 13 November 2013, Mr Khoshaba claimed compensation for an injury described as “psychiatric injury - chronic pain syndrome and/or adjustment disorder with depressed mood” which he said arose out of the injury on 27 December 2010.
By a reviewable decision on 11 April 2014, the respondent affirmed a decision denying liability to compensate Mr Khoshaba for a psychological injury on the ground that the effects of his physical injuries had ceased by 7 March 2013 and it was unable to find any causal link between any psychiatric symptoms and the injuries for which liability had previously been accepted.
A third claim by Mr Khoshaba for compensation for an injury to his lumbar spine resulting from the fall in December 2010 was rejected by the respondent. In December 2012, the Tribunal, differently constituted, affirmed that determination. Any back condition is therefore not part of this claim.
Issues
In relation to Mr Khoshaba’s claim for compensation for his physical injuries, we have to determine whether the effects of his injuries ceased by 7 March 2013.
In relation to his second claim, we have to determine whether, after 27 December 2010, Mr Khoshaba suffered from a psychiatric or psychological condition and, if so, whether his condition is causally related to his employment.
Mr Khoshaba’s employment history
Mr Khoshaba was born in Iraq where he worked as a primary school teacher. He is 49 years old and is married and has four children. He left Iraq in 1995 as a refugee and lived in Turkey and Jordan before arriving in Australia in 1998. His teaching qualifications were not recognised in Australia and he undertook a security course at TAFE and obtained a Security Licence.
From 2001 to 2007, Mr Khoshaba worked part-time as a security guard at a club in Edensor Park. His duties involved customer service, reception, crowd control and screening patrons entering the club. From 2004 to November 2009, he worked for Brinks Cash in Transit on the crew of an armoured car.
In November 2009, Mr Khoshaba started casual work for the respondent as a road crew officer, driving and escorting cash in transit trucks to and from clients such as banks and tollbooths. In 2010, he also started working part-time for Serco, a company that provided security services at the Villawood Detention Centre. He worked six days a week for the respondent and 24 hours a week for Serco, a total of about 48 hours each week. He has not worked for Serco since his injury.
In 2004, while he was working for Brinks Cash in Transit, Mr Khoshaba set up his own company, Alert Protective Security (Aust) Pty Ltd, which provided security services to various venues two or three days each week. His role was primarily supervisory rather than directly providing security services himself. Around May 2012, on the advice of his accountant and to meet certain WorkCover NSW requirements, he dissolved the company and formed a new company, Alert Venue Services Pty Ltd. He maintained his business while employed by the respondent and others.
Since his employment with the respondent was terminated, Mr Khoshaba has continued to operate his business but says it does not make a profit that affords him a sustainable income. The respondent submits that the evidence shows otherwise but it is not necessary for us to determine the extent of his involvement in the business or his income from it. Mr Khoshaba has also completed a course in building management at TAFE and is currently studying for a diploma in building management which he hopes will lead to employment as a building supervisor. His studies take about 20 to 24 hours a week. He has passed exams and assessments but says he has trouble concentrating and retaining course material.
Mr Khoshaba’s pre-injury duties
Mr Khoshaba describes the physical demands of his duties for the respondent as:
·carrying a firearm for up to 12 hours
·lifting cash/coin bags, containers, crates, pushing and pulling trolleys
·opening and closing hatches, vertical and horizontal shutters
·prolonged standing and walking
·keeping records
·loading, receiving, despatching bags of money up to 15 kg
·frequent lifting
·placing coins in designated spaces
·going up and down stairs
·getting in and out of a truck
·pushing and pulling coin trolleys up to 80 kg
·squatting and kneeling at safes and ATMs
·carrying bags of cash/coins by each hand
·driving a truck.
Mr Khoshaba gave evidence that, before his injury on 27 December 2010, he had no difficulty completing his duties including carrying a firearm. Clinical records show that he saw doctors for a range of medical complaints over the years, including for conditions he has complained of since his injury, but there is no evidence that any of them affected his ability to carry out his duties.
Medical treatment following the injury
On the day of his injury, Mr Khoshaba was taken by ambulance to Westmead Hospital where he was seen in the casualty section. A CT scan of his brain, and x-rays of his chest and cervical spine, showed no abnormalities. He was diagnosed as suffering from a laceration to his lip, head injury and right wrist strain. He was discharged the same day and certified unfit for work for two days.
On 29 December 2010, Mr Khoshaba saw a general practitioner, Dr Samy Erian, who noted he had a full range of neck movement with no tenderness; his right shoulder was “pain full end of the abduction” with no tenderness; his right wrist was swollen and tender; and his right knee “tender medially”. An x-ray of Mr Khoshaba’s right wrist showed no fracture.
On 30 December 2010, Dr Erian certified Mr Khoshaba unfit for work for one month noting bruising to his face, neck pain and musculoskeletal pain. He queried whether Mr Khoshaba had cuff tendinosis in his right shoulder, a wrist fracture, and an injury to his right knee.
On 4 January 2011, Dr Erian recorded that Mr Khoshaba complained of dizziness, right sided chest pain, right wrist pain and right knee pain. Dr Erian noted that his right shoulder was “improving”. He ordered a CT scan of Mr Khoshaba’s wrist which confirmed a fracture and required eight weeks in plaster, and he referred Mr Khoshaba to a cardiovascular specialist and a neurosurgeon. An MRI of his cervical spine on 11 January 2011 showed some bulging at C3/4 but no neural compromise.
On 14 January 2011, Mr Khoshaba saw his usual general practitioner Dr Emil Guirgis, complaining of chest pain “after an accident at work”. Dr Guirgis noted as a query ischaemic heart disease.
On 20 January 2011 Dr Erian noted that Mr Khoshaba’s his neck pain was increasing and he felt dizzy when he looked up; he had a full range of neck movement but was tender over the lower neck and upper thoracic spine; his right shoulder was “normal now”; he had right knee pain for which an MRI was ordered.
On 24 January 2011, Dr Guirgis recorded that Mr Khoshaba had had pain in his neck, right shoulder, arm and wrist, and right knee since the accident. An MRI of his wrist on April 2011 showed no ligamentous injury and “no evidence of instability”.
Dr Medhat Guirgis, orthopaedic surgeon, saw Mr Khoshaba on 5 May 2011. He diagnosed post-concussion syndrome including bi-temporal headaches, post-traumatic vestibular dysfunction, an injury to the cervical spine, wrist fracture, an injury to his lumbar spine and post-traumatic symptoms in his right knee. He said Mr Khoshaba was “totally unfit for work at the present stage” and he should continue with conservative treatment.
June 2011 - return to work
Mr Khoshaba returned to work on light duties on 1 June 2011. Over subsequent months, Dr Guirgis certified him fit for increasing hours of suitable duties each week.
In September 2011, Mr Khoshaba saw Dr Ron Muratore, sports physician, for assessment. He complained of pain in his neck, right shoulder, right knee and wrist, and recurrent headaches accompanied by vertigo. Dr Muratore found he had a full range of neck movement, his headaches were not clinically significant and he had recovered from the wrist fracture and the bruising to the bone in his right knee.
In October 2011, Dr Ross Mellick, neurosurgeon, saw Mr Khoshaba for assessment. He reported that Mr Khoshaba complained of dizziness if he kept his neck in a forward position which was relieved with flexing; low back pain extending down his left leg; and some numbness and tingling in his thighs. Dr Mellick could not find “any organically based abnormality” and thought he was experiencing “a chronic pain syndrome” as a result of his injury. He recommended a rehabilitation program.
When he saw Mr Khoshaba again in November 2011, Dr Muratore noted that he complained of persistent neck pain that was “better than it was” and shoulder pain that was “better than it has been”; he still had low back pain extending into his legs, and knee pain. Dr Muratore thought Mr Khoshaba was “rather pain focussed”. He diagnosed Chronic Pain Syndrome, and possible underlying pathology in his right shoulder although his symptoms could be “grossly exaggerated”.
Dr Guirgis’ notes for 2011 and early 2012 indicate that Mr Khoshaba’s back pain was his principal complaint, along with dizziness and wrist pain. His complaints of neck pain were intermittent after early 2011, with complaints on six occasions at the end of 2011 and early 2012. He appears to have complained of shoulder pain on few occasions.
In January 2012, Mr Khoshaba started hydrotherapy to improve his neck and shoulder pain. Mr Nguyen, the treating physiotherapist reported to Dr Guirgis in April 2012 that his neck and shoulder pain was “now intermittent” and his wrist pain was “much better than before”. He had intermittent dizziness. His lower back pain was “the main pain that affects activities of daily living and his functional tolerances”.
On 31 May 2012, Dr Richard Deveridge, saw Mr Khoshaba for assessment. He recorded residual disabilities in his neck, shoulder, wrist, back and knee which he thought attributable to the fall. He thought the underlying spondylosis had been aggravated and the effects would be ongoing and long lasting. He noted that Mr Khoshaba said he had made “substantial improvement” particularly in his right arm and right leg; it was mainly his spine that prevented him from returning to his pre-injury duties.
Mr Khoshaba was examined and tested for vertigo as an explanation of his dizziness and loss of balance. Test results were normal. In June 2012, Dr Paul Clouston, neurologist, concluded that Mr Khoshaba had post-traumatic vestibular dysfunction that sounded like it was “gradually settling”.
In November 2012, Dr Andrew Dowe, ear, nose and throat surgeon, was unable to determine any vertigo on simple examination although he noted that it is “extremely difficult to say that vertigo is not present as it is a subjective sensation”. He thought that anxiety and stress were largely responsible for Mr Khoshaba’s symptoms (in August 2011, Dr Guirgis noted that he had severe stress and was very worried about the future).
In March 2014, Dr John O’Neill, consultant neurologist, reported that Mr Khoshaba had suffered a mild closed head injury of the type not expected to result in any permanent impairment of higher centre function although it might have been responsible for some post-traumatic positional vertigo.
Evidence of Dr Maxwell
On 2 June 2011, Mr Khoshaba saw Dr David Maxwell, orthopaedic surgeon, for assessment. Mr Khoshaba said his “main problem” was his wrist but it was “getting better”; he had back and neck pain and dizziness but made no complaints about his right knee or right shoulder.
Giving oral evidence, Dr Maxwell said he found “slightly less than normal but within the normal range” of neck movement with no muscle spasm or guarding as commonly found with chronic neck pain, and no evidence of any specific pathology in the cervical spine. He found a full range of movement in Mr Khoshaba’s right knee and thought the bruising to his knee had resolved. He found no evidence of any continuing injury to his right shoulder. He found a “slightly reduced” range of movement of the right wrist compared to his left but within normal range.
Dr Maxwell said he found it “difficult to understand why the minor nature of his injuries would continue to produce symptoms at this stage”. Giving oral evidence, he said he would have expected the soft tissue injuries to heal within four to six weeks and he found no pathology in June 2011 that would suggest Mr Khoshaba would have prolonged disability in his right shoulder, wrist or knee.
Evidence of Dr McGill
Dr Neil McGill, rheumatologist, saw Mr Khoshaba for assessment in February 2014. He had available to him X-rays, CT and MRI scans, and ultrasound of Mr Khoshaba’s right wrist and right knee, cervical and lumbar spine, brain and whole body taken between 31 December 2010 and 26 November 2011 as well as clinical notes and reports dating back to 1998. They included complaints on six occasions in late 1999 and early 2000 of lower back pain going into his left leg, and complaints of dizziness in March 1999, October 1999 and October 2004.
Mr Khoshaba told Dr McGill that his “most troublesome” problem was stiffness and discomfort in his neck radiating to his upper trapezius muscles, and occasional headaches which were sometimes associated with a feeling of light headedness. His right wrist was now “all right” except occasionally, and he had some soreness on the medial aspect of his right knee when climbing stairs or twisting.
Dr McGill said there was “a clear difference” between Mr Khoshaba’s “more fluent” neck movements when the consultation was not focussed on his neck, and during the formal examination when he grimaced and indicated that movement was painful. Dr McGill thought the radiological investigations, including the disc bulge at C4/5 “well within the expected normal findings” for someone of Mr Khoshaba’s age and he noted that at no stage did he have symptoms of neural compression. He could not identify any pathology which might cause neck restriction.
Dr McGill concluded that Mr Khoshaba suffered a strain of the cervical spine and surrounding musculature, the physical effects of which should have settled within three months and “almost certainly” by March 2013. He did not think Mr Khoshaba’s neck presented any impediment to working on the armoured truck.
With respect to his right shoulder, Dr McGill said Mr Khoshaba’s behaviour during assessment was “unusual”; the pattern of restricted movement was not as normally seen with rotator cuff disease, adhesive capsulitis or shoulder arthritis. For example, he demonstrated perfect internal and external rotation, but moderately restricted abduction and flexion which would normally be accompanied by restricted internal rotation. In other words, clinical findings were not consistent with any genuine organic pathological change.
Dr McGill could not explain Mr Khoshaba’s behaviour on the basis of any organic shoulder disease. He thought he could have irritated his right rotator cuff in the fall but the overall progress of his symptoms, the recorded physical examinations and the very minor abnormalities found on ultrasound indicated that “non-organic factors” were primarily responsible for his current behaviour. He saw no reason Mr Khoshaba could not lift weights up to 20 kilograms although frequent repetitive activities above shoulder height “would not be a good idea”. He saw no reason Mr Khoshaba’s wrist, neck, shoulder, back or knee would limit his ability to push a trolley up to 80 kilograms over even ground.
Dr McGill gave evidence that Mr Khoshaba’s knee was clinically normal on examination. He noted that an MRI in February 2011 showed chronic mild to moderate osteoarthritis in the patellofemoral joint which he thought unrelated to the fall, and oedema on the femoral condyle, probably related to the fall. He thought it likely the bone bruising and some soft tissue bruising would have recovered within three months but certainly within six months. Given the time between the fall and when the MRI was done, there was “no chance” that Mr Khoshaba’s osteoarthritis was related to his injury, and any ongoing difficulty going up and down stairs, or kneeling or squatting, would be related to his pre-existing condition.
In Dr McGill’s view, Mr Khoshaba’s only persistent genuine physical restriction was mild restriction of the right wrist movement. However, he reported no significant wrist discomfort and, except for rarer activities requiring near full flexion of the wrist, he had recovered its full normal function.
Dr McGill also noted reports in December 2012 and February 2013 from Dr David Fitzgerald, occupational physician, in which he said soft tissue injuries would be expected to have recovered by then, and the only ongoing symptoms that could reasonably be attributed to the accident were minor, inconsequential symptoms of the right wrist, and symptoms in the cervical spine had not been adequately explained diagnostically.
Evidence of Dr Bodel and Dr Browne
On 7 January 2014, Mr Khoshaba saw Dr James Bodel orthopaedic surgeon, and, one hour later, Dr Christopher Browne, rheumatologist, for assessment. Both provided written reports and gave oral evidence. Both thought the radiological findings in Mr Khoshaba’s neck, shoulder, knee and wrist were not unusual for a person of his age.

Dr Bodel diagnosed Mr Khoshaba as having suffered soft tissue injuries to his neck, right shoulder, right wrist and right knee. He thought he was still partially incapacitated for work although, on questioning by Dr Couch, he agreed that soft tissue injuries would normally recover within three to four months.
Regarding Mr Khoshaba’s neck, Dr Bodel said it was normal on examination. He accepted Mr Khoshaba had pain in that area because of the injury to his head and neck area, but he did not “go into the specifics of what particular thing was causing him pain at that point in time” and he was “not quite sure exactly what is the cause of the ongoing complaints of pain in the neck”. He thought the disc bulge shown on the ultrasound and the clinical findings of restricted movement and localised tenderness were consistent with the pathology becoming symptomatic at the time of the fall.
Dr Bodel thought Mr Khoshaba’s wrist had “essentially recovered” although he had pain in cold weather. He thought the pathology of his right knee shown on the MRI was within normal range for someone of Mr Khoshaba’s age. He thought it possible the blow to his knee had rendered previously asymptomatic pathology symptomatic. If purely age-related, he would have expected pathology in the left knee as well but there was none.
It emerged during Dr Bodel’s evidence that an earlier version of his report had included reference to Mr Khoshaba’s low back injury as the cause of his incapacity to work. Dr Bodel agreed that, after taking out reference to the back injury, he had not revised that part of his report concerning capacity for work. He did not think his view about Mr Khoshaba’s capacity for work was substantially altered; only that his back probably made him more incapacitated but, on questioning, he agreed that none of his other complaints would limit his capacity for bending or for twisting. In other words, Mr Khoshaba’s incapacity for work was less than previously opined when his back condition was included in the assessment.
Dr Browne made a similar diagnosis to Dr Bodel. He thought Mr Khoshaba was presently incapacitated for pre-injury duties and would likely need ongoing treatment especially for his neck and right shoulder. He gave oral evidence that Mr Khoshaba “didn’t complain of his wrist really” and felt it had recovered reasonably well. He observed no restriction of knee movement but, relying on Mr Khoshaba’s complaint of pain, he thought the fall had “probably” accelerated the osteoarthritis in his knee.
Dr Browne noted ultrasound evidence of a partial tear of one of the tendons in the right rotator cuff which, in the absence of any prior problems, he thought related to the injury. He found some restriction of neck movement consistent with Mr Khoshaba’s age but, considering his complaint of continued pain since the injury, he thought it related to it. He agreed he had to rely on Mr Khoshaba’s complaint of pain.
Dr Browne thought Mr Khoshaba would have some difficulty with duties involving regular lifting of weights from the floor to shoulder height, carrying bags weighing up to 20 kilograms, and carrying weights up and down stairs. He did not test him kneeling or squatting.
Differences found on clinical examination by Dr Bodel and Dr Browne raise questions about their assessments. They found significant variation in Mr Khoshaba’s range of neck and right shoulder movement. Giving oral evidence Dr Bodel did not think the differences significant but Dr Browne agreed there was “significant inconsistency” between Mr Khoshaba’s presentation to him and his presentation to Dr Bodel an hour previously, although he thought it might be explained by the effects of the earlier examination or by medication in between.
Dr McGill thought the differences too great for explanation by reference to inaccuracy of clinical measurement or “lack of encouragement”. Dr Bodel found good range of neck and shoulder movement, whereas Dr Browne’s measurements represented substantial restriction and impairment. The variation without adequate explanation reinforced his concern that Mr Khoshaba’s stated history and presentation were not reliable.
The respondent submissions concerning the reliability of Mr Khoshaba’s evidence
The respondent submits that Mr Khoshaba’s evidence should be regarded as unreliable unless corroborated independently. The respondent refers to his statement to doctors including Dr Muratore and Dr Maxwell indicating that he had not made previous claims for compensation and had been in good health, and had not experienced previous back pain. That claim was found by the previous tribunal to be incorrect.
The respondent submits that the variations in clinical findings by Dr Bodel and Dr Browne are further evidence of the unreliability of Mr Khoshaba’s evidence and undermine the value of their assessments.
Mr Khoshaba appeared to us to give his evidence truthfully as best as he could but there are inconsistencies in his accounts to different doctors that make the reliability of his evidence questionable. Both Dr McGill and Dr Browne thought the variation in the findings on examination by Dr Bodel and Dr Browne to be significant, and they are not explained except by possibilities. In our view his evidence should be approached with caution where it is not corroborated by independent evidence.
Surveillance DVD and report
Surveillance of Mr Khoshaba was carried out on behalf of the respondent over four weekdays in July 2014 for periods ranging from one and a half, to seven and a half, hours each day. The investigator’s report is in evidence and we were shown footage of observations for several minutes on two days.
Mr Khoshaba is seen walking with his young son to and from school, getting in and out of a car, and going into, and coming out of, a medical centre and an accountant’s office. On one occasion he is observed to jog briefly when crossing the road with his son to get out of the way of oncoming traffic; he is seen turning his head to the side, apparently to look out for approaching vehicles, and he is seen twice putting on or taking off his jacket as he gets into his car.
The respondent suggests that jogging while crossing the road with his son, and crossing the road by himself at a point where there are no lights or pedestrian crossing, is at odds with Mr Khoshaba’s claim to experience episodes of the dizziness that make him feel as if he will fall. The respondent suggests that he would walk with great care if he were at risk of unexpected dizziness. We do not find that submission persuasive. Mr Khoshaba has not ever claimed not to be able to walk at all, or drive, or go out of the house, and nor has he claimed to have actually fallen.
Dr McGill gave evidence that he saw no suggestion of Mr Khoshaba moving his body to limit the rotation of his neck when crossing the road as he would expect of someone with neck pain, and he thought he demonstrated “very good rotation”. Dr Couch thought his neck movement closer to half normal range. The DVD appears to show Mr Khoshaba with unrestricted shoulder movement when putting on his jacket or coat but the picture is not clear enough to draw any firm conclusion about this. Ultimately, nothing we saw on the DVD was seriously at odds with Mr Khoshaba’s evidence about what activities he is still able to do. At most, it appears to show that his neck movements were unrestricted on that day and he showed no obvious limitation in use of his right knee.
Had the effects of Mr Khoshaba’s injuries ceased by 7 March 2013?
There is no dispute among the doctors that Mr Khoshaba suffered soft tissue injuries to his neck, shoulder, wrist and knee, and a fracture of his wrist. There is no dispute that he had a pre-existing disc bulge in his cervical spine and osteoarthritis in his right knee. All indications are that neither was symptomatic before 27 December 2010.
Dr McGill’s evidence was that soft tissue injuries could be expected to settle within three months, six at most, and certainly by March 2013. Although Dr Bodel thought the effects were continuing, he agreed with Dr McGill about the usual course of recovery from soft tissue injury. Other doctors do not appear to have been asked that question specifically.
Mr Khoshaba was treated and discharged from hospital on the day of his injury. Nothing at that time appears to have suggested long-term effects of his injury (although it is true that the fracture in his wrist was not detected until later). Within a short time, Dr Erian recorded that his shoulder was improving and, by 20 January 2011 that it was “normal now”. The fact that, four days later, Dr Guirgis recorded complaints of pain in his neck, right shoulder, arm and wrist, and knee does not mean that Dr Erian made a mistake; more likely, it reflected that only three weeks had passed since the accident and Mr Khoshaba’s injuries were still in some flux.
The evidence suggests a pattern of continuing improvement with intermittent bouts of pain, especially in Mr Khoshaba’s neck and shoulder. The clinical notes and reports indicate that the main source of his problems throughout 2011 and 2012 was his lumbar spine. That is consistent with Dr McGill’s evidence, which we accept, that soft tissue injuries of the kind sustained by Mr Khoshaba would resolve within several months and certainly by March 2013. Dr Bodel did not disagree.
Mr Khoshaba relies largely on his continued complaints of pain as evidence of the continuing effect of his injuries. However, we find that the pain in his knee is due to his pre-existing osteoarthritis and, in that regard, prefer Dr McGill’s evidence to Dr Bodel’s and Dr Browne’s. No organic, pathological explanation could be found for Mr Khoshaba’s complaints of continuing shoulder pain; we accept Dr McGill’s evidence that the limitations he demonstrated on examination were not consistent with a rotator cuff tear. In the absence of a clear underlying cause, we are not satisfied that Mr Khoshaba’s complaints are themselves evidence of continuing effects of his injury.
We accept that Mr Khoshaba continues to have some restriction of movement in his wrist but we accept Dr McGill’s evidence that it would not limit his capacity for his pre-injury duties.
We are satisfied, and find, that the effects of Mr Khoshaba’s injury on 27 December 2010 had ceased by 7 March 2013 and that, insofar as he was physically unfit for any of his pre-injury duties after that date, it was not the result of his injury.
DID MR KHOSHABA SUFFER A PSYCHOLOGICAL INJURY SECONDARY TO HIS PHYSICAL INJURY?
On 10 June 2011, Dr Guirgis recorded that he saw Mr Khoshaba for “prolonged consult W/C”. He recorded presenting symptoms as:
severe stress, family problems, a lot of tension, can’t concentrate, can’t sleep at night, very worried about the future, lack of energy, low self-esteem, no thoughts disturbance, no suicidal tendency, marital disharmony. Lower back pain, associated with stiffness and numbness, extends to involve the lower limb …
Dr Guirgis diagnosed lumbar discopathy and adjustment disorder.
On 2 August 2011, Dr Guirgis recorded that Mr Khoshaba presented with symptoms similar to those on 10 June 2011. He recorded a diagnosis of “adjustment disorder Depressed Mood” and referred Mr Khoshaba to a psychiatrist, Dr Samir Benjamin, for assessment. For reasons which are not clear, Mr Khoshaba did not see Dr Benjamin until 20 June 2012.
Dr Lewin
On 10 October 2011, Mr Khoshaba saw Dr Robert Lewin, psychiatrist, at the request of the respondent. He complained of sleep disrupted by pain, reduced energy levels and worries about his financial future. Dr Lewin noted that Mr Khoshaba had not been referred for any psychological counselling but that he was to see Dr Samir Benjamin on 10 October 2011. As we noted above, that did not occur until June 2012.
Dr Lewin thought Mr Khoshaba showed evidence of “a mild depressive reaction” and diagnosed Adjustment Disorder with depressed mood. He thought the condition had arisen as part of Mr Khoshaba’s “emotional response to a pattern of persisting pain and disability”. He did not think on its own that his condition impaired Mr Khoshaba’s capacity to work. He thought it reasonable for Mr Khoshaba to undertake a short program of treatment with a psychiatrist or psychologist and that he would likely need the use of antidepressant medication.
Dr Benjamin
Dr Benjamin saw Mr Khoshaba on 20 June 2012. He reported to Dr Guirgis that Mr Khoshaba “was preoccupied with his work difficulties and he felt that his work supervisors did not want him to continue in the office. There was a significant overlay in his presentation, both physically and psychologically”. He wrote:
Eddie may have suffered with Post-Concussive Disorder following his fall and head injury in 27 December 2010. His symptoms, however, appear to have resolved to a significant extent over the past 18 months. He does not appear to be psychiatrically symptomatic to any significant extent.
Dr Benjamin noted that Mr Khoshaba had been on Endep 10mg for several months which he found helpful in improving his sleep and reducing his pain but he continued to complain of insomnia and interrupted sleep. We heard evidence at the hearing from Dr Champion and Dr Bertucen, which we accept, that a dose of 10 mg is “sub-therapeutic” in the treatment of psychiatric conditions, and is not itself evidence of a diagnosis of psychological disorder. Dr Benjamin said he had encouraged Mr Khoshaba to increase his working hours and to work on returning to his pre injury duties in the near future. He thought his Endep could be increased to 25 mg if required to help with his headaches and joint pains. He made no arrangement to see Mr Khoshaba again.
Associate Professor Gilandis
On 8 January 2014, Mr Khoshaba saw Associate Professor Alex Gilandis, neuropsychologist, for assessment. Dr Gilandis administered a range of psychometric tests. He diagnosed Mr Khoshaba as suffering from adjustment disorder with mixed anxiety and depressed mood and concluded he was unable to return to his duties in the security industry.
Evidence of Dr Bertucen and Dr Champion
Dr Jeff Bertucen and Dr John Champion, consultant psychiatrists, saw Mr Khoshaba for assessment on 13 January 2014 and 24 March 2014 respectively. They have provided written reports of their assessment and gave oral evidence concurrently.
Dr Bertucen gave evidence that Mr Khoshaba described continuing psychiatric symptoms of sleep disturbance due to chronic pain, depression and anxiety, social isolation, impairment of memory and concentration, feeling tired, mood swings, marital and family discord, feeling of demoralisation, and inability financially to support his family. Dr Bertucen diagnosed him as suffering from chronic adjustment disorder with features of depressed mood and anxiety as a result of his injury on 27 December 2010. He thought Mr Khoshaba’s condition had not fully stabilised and recommended further psychiatric treatment.
Dr Champion gave evidence that, initially, Adjustment Disorder with Depressed and possible Anxious Mood “may have been an appropriate diagnosis” but he thought whatever the condition, it had “long since resolved” by the time he saw Mr Khoshaba.
Dr Bertucen thought Mr Khoshaba’s depression started around mid-2011 and escalated by about late 2012; it was probably resolving before early 2013 when his employment was terminated after which it became worse. He thought Mr Khoshaba’s physical injuries which disabled him from performing his duties led to his adjustment disorder when he failed to adjust to the change.
Dr Bertucen and Dr Champion were substantially in agreement. They agreed that, if Mr Khoshaba had not been physically injured then “almost unarguably” he would not have developed a psychological problem. They conceded that they were disadvantaged insofar as they had to rely on the history given to them by Mr Khoshaba and the available reports, but they were both of the view that Mr Khoshaba developed an Adjustment Disorder following his injuries and as a result of them.
Consideration
We are satisfied on the evidence before us that, sometime around mid-2011, Mr Khoshaba developed an adjustment disorder to which his employment-related injuries and their consequences contributed to a significant degree. It follows that the respondent is liable under s 14 of the Act to compensate him for this injury. We are not required to determine whether, and if so when, the effects of his injury ceased but the evidence suggests it was mild, and may have resolved by March 2013.
Conclusion
We affirm the decision that the effects of Mr Khoshaba’s physical injuries had ceased by 7 March 2013. In respect of his claim for compensation for psychological injury, we set aside the decision under review and decide instead that Mr Khoshaba suffered a psychological injury secondary to his physical injuries for which the respondent is liable to compensate him.

1. I certify that the preceding 86 (eighty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey and Dr Couch, Member.

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Associate
Dated 19 February 2015

Date(s) of hearing

3 – 5 and 15 December 2014

Representatives for the Applicant

Mr Leo Grey, Counsel

Mr John Caristo, Shine Lawyers

Representatives for the Respondent

Mr Paul Jones, Counsel
Mr Shaun Jackson, Moray & Agnew Lawyers

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/4543 2014/3174
Re	Eddie Khoshaba
APPLICANT
And	Linfox Armaguard Pty Limited
RESPONDENT

Tribunal	Senior Member J F Toohey Dr Mike Couch, Member
Date	19 February 2015
Place	Sydney