Eddie Khoshaba and Linfox Armaguard Pty Ltd

[2013] AATA 89

[2013] AATA 89

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2011/5519
Re	Eddie Khoshaba
APPLICANT
And	Linfox Armaguard Pty Ltd
RESPONDENT

DECISION

Tribunal	Ms N Bell, Senior Member Dr I Alexander, Member
Date	21 February 2013
Place	Sydney

The Tribunal affirms the decision under review.

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Ms N Bell, Senior Member

CATCHWORDS

COMPENSATION – Commonwealth Employees – whether applicant suffered injury to back – whether pre-existing degenerative back condition – aggravation – whether fall aggravated pre-existing condition – whether failure to disclose history of back condition in employment form – decision under review affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 5A, 5B, 7(7), 14,

REASONS FOR DECISION

Ms N Bell, Senior Member
Dr I Alexander, Member

1. Eddie Khoshaba commenced employment with Linfox Armaguard in November 2009. On 27 December 2010, Mr Khoshaba slipped and fell down the steps of a toll truck while exiting the vehicle, falling face first onto a concrete floor. He suffered injuries to his face, right wrist, right neck and shoulder and right knee. Mr Khoshaba contends that he also suffered an injury to his lower back and claims his employer is liable for his lumbar spine condition.

2. Liability was accepted by Linfox for injuries to Mr Khoshaba’s face, wrist, neck, shoulder and knee. Linfox denied liability for Mr Khoshaba’s lumbar spine on the basis that there was no contemporaneous medical evidence to support the claim that Mr Khoshaba had sustained injury to his lower back in the fall. It contends that Mr Khoshaba has an underlying pre-existing degenerative back condition and disputes that it was aggravated by the fall. It further contends that if there was an aggravation to that condition as a result of his fall, any such aggravation was temporary and soon ceased. Linfox also contends that Mr Khoshaba failed to disclose his history of back injuries when commencing employment with the company.

   ISSUES

3. The issues for our consideration are:

   (a)Whether Mr Khoshaba suffered a frank injury to his back in the fall;

   (b)Whether Mr Khoshaba had a pre-existing underlying degenerative back condition;

   (c)If so, whether Mr Khoshaba’s underlying condition was aggravated by the accident; and

   (d)Whether Mr Khoshaba failed to disclose a history of back injury on his employment form.         

   DID MR KHOSHABA SUFFER A FRANK INJURY TO HIS BACK?

4. Ambulance reports, the hospital’s records and the records of Mr Khoshaba’s general practitioner do not record any complaints by Mr Khoshaba about his back at or soon after the time of his fall.  Nor do the records disclose any back symptoms on examination.

5. The ambulance report records:

   went to step off truck (miss stepped) fell landing head/face on concrete…amnesia to events....lace[ration] upper lip, pain [right] wrist…neck pain [decreased] respiratory function

6. The admission records of Westmead Hospital note:

   moving all limbs (power 5/5)

   back: no midline tenderness

7. The hospital records also contain a ‘Nursing Trauma Flowsheet’. In the section under the heading “Back”, it the option to select “pain” or “injury”. Both are unselected and the annotation written next to this section is “nil”.

8. The medical certificate issued on 27 December 2010 by Dr Singam of Westmead Hospital’s Emergency Room records only laceration to the lip, head injury and right wrist strain.

9. Mr Khoshaba saw general practitioner, Dr Erian, on 29 December 2010, two days after the fall. Dr Erian’s records do not include any complaints of back pain. Mr Khoshaba was at pains to stress that Dr Erian was not his usual general practitioner.  As Dr Erian requested, Mr Khoshaba returned to see him the next day on 30 December 2010. In the records of this appointment there are no complaints of back pain. Mr Khoshaba saw Dr Erian on three more occasions in January 2011.  There are no complaints of back pain.  

10. The clinical notes of Dr Guirguis, Mr Khoshaba’s usual general practitioner, show that his first recorded complaint of lower back pain was on 3 February 2011, some five weeks after the fall.

11. Mr Khoshaba saw Dr Erian again on 24 August 2011. Dr Erian’s records note the following:

    He attended today to clarify the issues of his low back pain,

    He said he felt pain on the same day of the accident in the lower thoracic spine, this pain was mild and soon resolved.

    …

    I have reviewed my file and no issues about his back at that time.

12. Mr Khoshaba saw Dr Erian again on 14 November 2011 and requested a report. In a report dated 16 November 2011, Dr Erian confirms that there was no complaint of lower back pain in his clinical notes.

13. During cross-examination Mr Khoshaba said he told Dr Erian when he first saw him that his back was sore.  He said Dr Erian told him that his back pain was related to his neck. He said he only mentioned his back the first time he saw Dr Erian and when the doctor said it was caused by his neck he was relieved and did not mention it again.

14. This alleged advice by Dr Erian was described by Dr Deveridge, general surgeon, as “unusual” for a competent medical practitioner.

15. The report of Dr Shafransky, cardiologist, dated 14 January 2011 mentioned Mr Khoshaba’s back as related to the fall. In this one page report Dr Shafransky noted Mr Khoshaba’s fall and said “he sustained injury to the head, back, neck and wrists”. However, during cross-examination Dr Shafransky said this was the incidental history given to him by Mr Khoshaba who had seen him because he was complaining of chest pain. Dr Shafransky also said that Mr Khoshaba did not inform him of any other significant problems except for his wrists.

16. Mr Khoshaba insisted that he had told Dr Erian that he had back pain when he first saw him on 29 December 2010.  Dr Erian’s notes reveal a painstaking meticulousness.  He arranged for scans of Mr Khoshaba’s cervical spine wrist and knee, obtained the hospital records for Mr Khoshaba and had him return to his surgery the following day.  It is highly unlikely that he failed to record a complaint of back pain by Mr Khoshaba.  It is even more unlikely that he would have given the spurious medical advice that his back pain was somehow related to his neck.

17. Mr Khoshaba also submitted that a reference, in Dr Erian’s clinical note of 4 January 2011, to “musculoskeletal pain” was a reference to lower back pain.  That is not supported by a reading of the whole note which refers immediately before it to “neck pain” and “right sided chesty pain”.  Nor is it consistent with there having been no record of complaint of lower back pain in any earlier clinical note.

18. The absence of any record of complaint by Mr Khoshaba of pain in his lower back by ambulance officers, hospital doctors and nurses and the general practitioner who saw him in the month following the fall, leads us to the conclusion that Mr Khoshaba suffered no frank injury to his back when he fell on 27 December 2010.

    DID MR KHOSHABA HAVE A PRE-EXISTING UNDERLYING DEGENERATIVE BACK CONDITION?

19. The clinical notes of Dr Emil Guirguis, Mr Khoshaba’s usual general practitioner, record that Mr Khoshaba made several complaints of “LBP” or “lower back pain” from as early as 1 November 1999 and continuing, including on 8 November 1999; 9 November 1999; 10 January 2000; 22 February 2000; and 7 July 2006.

20. Eventually it was conceded on Mr Khoshaba’s behalf that he suffered age related lumbar spondylosis.  Clearly this predated the fall.

    DID THE ACCIDENT AGGRAVATE MR KHOSHABA’S UNDERLYING CONDITION?

21. In his report of  31 May 2012, Dr Deveridge, general surgeon, wrote:

    the medical imaging has again identified mid to lower thoracic and lower lumbar disc lesions on a background of age related spondylosis. I consider that the disc legions have again been triggered, materially aggravated and probably progressed as a result of the subject fall. … His concussion and other injuries would have overshadowed spinal injury which became evident at least by February 2011 when he was sent for medical imaging of his spine. There was no intervening incident that could have injured his thoracic and lumbar spine.

22. Dr Deveridge gave oral evidence to the Tribunal. When presented with the history of Mr Khoshaba’s lower back pain complaints from as early as 1 November 1999 and then on five other occasions in 1999, 2000 and 2006 he said that he was unaware of any significant back problems prior to December 2010. He said, Mr Khoshaba had not told him about these earlier episodes. 

23. Dr Devreridge said it was now established that Mr Khoshaba had a pre-existing lumbar sacral condition but said he saw nothing between the accident and the flare up of pain in February 2011.

24. Dr Muratore, sports physician, in a report dated 14 June 2012 said Mr Khoshaba’s back condition is due to his underlying degenerative lumbar spondylosis.

25. In oral evidence Dr Muratore said it was possible there was an aggravation of Mr Khoshaba’s back condition, but that it would have ceased after a short time.  He noted here had been no change to his pathology. He also said that if it were an aggravation, there would have been heightening of symptoms and the flare up would not have occurred four or five weeks after the aggravation. He said there was minimal possibility of any connection between the accident and Mr Khoshaba’s lumbar spine. Dr Muratore also observed that Mr Khoshaba had abnormal illness behaviour.

26. Dr Maxwell, orthopaedic surgeon, in his report dated 2 June 2011, noted that the MRI  scan of 23 February 2011  showed a disc protrusion at the L5/S1 level on the left. He said there are no radicular symptoms and the protrusion is unlikely to be significant. In his second report of 25 July 2012, after being provided with the clinical records of Dr Erian and Dr Guirguis and others, Dr Maxwell said:

    If he developed a disc protrusion at the time of the fall he would have experienced acute sciatica radiating down the left leg. It would have come on at the time of the fall or shortly afterwards. He did not in fact complain of back pain to any of his treating medical practitioners until February 2011. Therefore there is no direct connection between the symptoms he stated were related to his lower back and the alleged work-related fall.

27. In oral evidence, Dr Maxwell said of the MRI that it is not clinically significant and the result is not unusual in a 47 year-old.  He maintained that the pathology on MRI has nothing to do with Mr Khoshaba’s symptoms.

28. Dr Mellick, consultant neurologist, in his report of 27 June 2012, on the basis of a trauma to soft tissue at the time of fall, opined that “any such trauma can be expected to have long since fully resolved”. In oral evidence, Dr Mellick said the clinical significance of the MRI is that it indicates degenerative disease. Dr Mellick agreed that the first report allowed for a lesser possibility of aggravation of age related changes, but also commented on the common occurrence of chronic pain as a result of psychologically based processes. 

29. The weight of the medical evidence is overwhelmingly against a conclusion that the fall aggravated Mr Khoshaba’s underlying and already symptomatic degenerative back condition.

30. It follows from these conclusions that the fall in December 2010 did not cause a frank injury to Mr Khoshaba’s lumbar spine and nor did it aggravate his pre-existing lumbar spine condition.  Linfox Armaguard Pty Ltd is not liable to compensate Mr Khoshaba in relation to his lumbar spine condition.

    DID MR KHOSHABA FAIL TO DISCLOSE A HISTORY OF BACK INJURY ON HIS EMPLOYMENT FORM?

31. The significance of this question, which might be answered in the alternative in view of Mr Khoshaba’s history of complaint of back pain to his general practitioner and his answer “No” to the question, on his pre-employment medical form, to a question: “Have you ever had …Back injury slipped disc, sciatica?”, lies in section 7(7) of the Safety, Rehabilitation and Compensation Act 1988 (Cth):

    (7) A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.

32. However, given our conclusion that Linfox is not liable to compensate Mr Khoshaba in relation to his lumbar spine condition, it is not necessary for us to consider whether section 7(7) applies in this case to render the injury claimed by Mr Khoshaba to be not an injury for the purposes of the Act.

    DECISION

33. The Tribunal affirms the decision under review.

I certify that the preceding 33 (thirty -three) paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member, Dr I Alexander, Member.

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Associate

Dated  21 February 2013

Dates of hearing	17 - 18 December 2012
Counsel for the Applicant	Mr J Cohen
Solicitors for the Applicant	Ron Kramer Associates Lawyers
Counsel for the Respondent	Mr P Jones
Solicitors for the Respondent	Moray & Agnew