Ghebranious and Comcare

[2007] AATA 2112

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 2112

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   A 2006/40 & 178

GENERAL ADMINISTRATIVE DIVISION		)
Re		ASHRAF GHEBRANIOUS

Applicant

And   COMCARE

Respondent

DECISION

TribunalJ.W. Constance, Senior Member

Dr P. Wilkins MBE, Member

Date13 December 2007

PlaceCanberra

Decision

A 2006/40

1.     The reviewable decision of Comcare made on 21 February 2006 is affirmed.

A 2006/178

2.     The reviewable decision of Comcare made on 26 July 2006 is affirmed.

..................................................

J.W. Constance. Senior Member

DRAFT DECISION  [9.15 am]
ADMINISTRATIVE APEALS TRIBUNAL
By MR J. CONSTANCE, Senior Member
and MR P. WILKINS, Member
Matter Nos A2006/40 and A2006/178
A. GHEBRANIOUS and COMCARE
CANBERRA, 13 DECEMBER 2007

MR CONSTANCE:   This is the matter of Ghebranious v Comcare, matter ‘06/40 and ‘06/178 for decision.  In this matter there are two applications before the Tribunal.  In matter A2006/40 Mr Ghebranious is seeking a review of the decision of Comcare denying his claim under section 24 of the SRC Act for compensation in respect of an injury which he alleges has given rise to permanent impairment.  Comcare has accepted liability to compensate him in respect of the injury under section 14.  The injury for which liability has been accepted is a ligamentous strain of the lumbar spine which occurred on 11 June 1996.

In matter A2006/178 he is seeking a review of a decision of Comcare that as at 9 June 2006 Mr Ghebranious was not entitled to compensation for incapacity and medical expenses in respect of the injury as the injury had resolved by that time.  For the reasons which follow both decisions will be affirmed.  The following findings of fact are based on the evidence of the applicant unless otherwise indicated and we are satisfied of the facts found on the balance of probabilities.

The first issue to be determined in this matter is whether Mr Ghebranious has continued to suffer the effects of the 1996 injury between 9 June 2006 and the date of this decision.  If it is decided that he has not, as we have indicated we will be deciding, then there are no further issues that require determination.  As a result of the nature of the medical evidence it is necessary to determine the circumstances in which Mr Ghebranious sustained the original injury in 1996.  Mr Ghebranious is 43 years of age.  In 1996 he was employed at the Australian National University as a data base administrator.

On 11 June 1996 at the request of a fellow employee he agreed to carry an overhead projector from one office to another.  He was unsure of the precise destination to which he was to take the projector and he says, and we accept, that he walked round for about 20 minutes carrying the projector and trying to find where it was that he was to deliver it.  He said that he took a couple of steps, stumbled and almost dropped the projector.  As he pulled back to gain control of it he felt a sharp pain in his back.

He said that to the best of his recollection this incident occurred after he had been carrying the projector for about 10 or 15 minutes.  He said that shortly after this incident he left the projector in the nearest building and went back to his workplace.  He said that he went home early because, from his memory, he had suffered an immediate pain, which was a sharp pain, in his back which extended down his right leg.  He identified to us that the pain in his back was about three to four inches above his belt line and that was identified as the upper lumbar area.

He said that when he returned to work that when he stood up he felt a sharp pain in the top of his right buttock.  On 14 June 1996 he consulted his general practitioner, Dr Etti, as the pain had not ceased.  In his statement, which is exhibit R17, Mr Ghebranious says that since the time of this incident he has experienced severe bouts of pain on numerous occasions including one occasion which he was admitted to Calvary Hospital.  He says that after a period of bed rest the pain would alleviate to a bearable point where he could function again but it has never gone away since that time.

He says that in all cases bed rest would eventually the majority of his pain.  For some years he also attempted to alleviate the pain by the taking of Nurofen but after time he ceased to do that.  He said he would often use a hot water bottle and that as he continued to suffer from bouts of intermittent pain he would continue to treat them with bed rest.  It’s not necessary that we go into the details of the years that intervened between the time of the accident and the present by reason of the decision that we have already indicated.

To consider the medical evidence it is necessary to decide whether in fact Mr Ghebranious stumbled, as he said he did, and whether that caused him immediate pain which radiated down his right leg.   We are satisfied on the balance of probabilities that the stumbling did not occur and we are also satisfied on the balance of probabilities that Mr Ghebranious did not suffer immediate pain when carrying the projector.  We are satisfied also that that pain initially, at least, did not radiate down his right leg.

We stress that we do not find that Mr Ghebranious has been deliberately untruthful.  There is no doubt on the evidence before us that the situation he found himself at work following this incident and prior to his later leaving that employment, was very stressful for him, and we are also satisfied for reasons which we will deal with briefly later in these reasons, that he has suffered very significant pain over a number of years.  Taking that into account we are satisfied that his memory is faulty rather than, as I said, that we’re making any finding that he has been deliberately untruthful to us or to anyone else.

It is apparent on the evidence before us that he did not describe the stumbling until around 2004.  Having taken into account his evidence it is necessary to look at the documentation that is before us in assessing the accuracy of his recollection.  The first of those documents that is relevant is exhibit R10 which is the claim for compensation which was completed by Mr Ghebranious on 24 June 1996, so shortly after the incident.  That document is also T6 in the documents before the tribunal.

It is significant to note that in that document there were a number of opportunities for Mr Ghebranious to have recorded the fact that he stumbled and suffered the sharp pain that he now recollects.  For example, he refers in a document, and I quote:

Carrying overhead projector to David Granton’s office, strained back.  The strain of carrying the projector for a period of time, back hurts.

He also recorded that the pain started the following day and in answer to question 14 on that form:

When did your injury happen, or when did you notice the illness –

he’s recorded –

11 June 1996, 9.30

Next part of that question was:

Day of the week –

and he’s recorded –

Tuesday but pain began on Thursday.

There are other sections of the form where he has again been asked to set out the events and particularly at question 24:

Describe in detail what events contributed to your injury/illness.  If there was a sequence of events we need to know what started the sequence of events and the final result.

Mr Ghebranious’ answer recorded to that question was:

Basically I was asked to transport an overhead projector to someone, I did not know this person’s exact whereabouts, moved to a new building, and spent around half walking with the projector around campus.  The pain did not start until the following day.  I called in sick the day after that.

So it is relevant that Mr Ghebranious did not record a stumble and specifically stated on at least two occasions that the pain commenced later.  The respondent also referred us to exhibits A6 and A7 which are witness reports but those reports are by fellow workers who made statements in relation to the circumstances of Mr Ghebranious transporting the projector and what they had been told.  While certainly they do not record his having told them of stumbling we do not place great reliance on those documents as they don’t purport to be direct evidence of anyone who actually saw him stumble or saw him walking.

However, of greater relevance are Dr Etti’s notes, that is the general practitioner, who Mr Ghebranious consulted on 14 June 1996 and those are before the tribunal as exhibit R21 and for the entry 14 June 1996 Dr Etti reports as follows:

Injured back at work 3/7 ago was carrying a projector going from building to another, pain started two days after.

He also records that:

Pain not radiating.

There is no reference in that note to Mr Ghebranious having tripped and it is possible that is not recorded, however it is important to note that there is a very specific recording of the pain starting two days after the event and the pain not radiating and we are satisfied on the balance of probabilities that that is recorded because that is what Mr Ghebranious told his general practitioner.  We also rely on the report of the occupational therapist of 30 July 1996 which is exhibit R13.

That is a report by Ms Shanahan, rehabilitation consultant and occupational therapist and in a report of 30 July 1996 she records the relevant medical history as follows:

Mr Ghebranious sustained low back pain on 11 June 1996 following an episode at work whereby he carried a photocopier for management information systems across to academic registrars and then around the building while attempting to locate the owner of the photocopier.  He stated the machine was awkward to carry and he felt relieved when he finally put it down.  The following day he noted severe back pain and was unable to stand.  He took the Thursday and Friday off work and rested over the weekend.

It is to be noted that in that report there is no reference to Mr Ghebranious having stumbled but there is reference to the pain being noted the following day.  Again, one would have expected that had Mr Ghebranious informed the therapist that he had stumbled in the way he now recalls he did that that would have been recorded sand again we note that there was a record of the pain commencing the following day rather than immediately.

In addition we take into account the evidence which Mr Ghebranious gave when questioned as to the circumstances of the alleged stumble and his replies in cross-examination.  What he said when these documents to which I have just referred were put to him, particularly in relation to the report of the occupational therapist, was that he acknowledged that his memory now may be incorrect and I quote:

It probably did not happen exactly that way.

He then indicated that he did trip, notwithstanding what he had said, and I asked him specifically whether he was still maintaining that he tripped and his response was, “I can’t be sure.”  When it was put to him by counsel for the respondent, did he agree that the events as recorded in the documents much nearer to the event were more likely to be correct than his memory 10 years later, he agreed with that proposition.  Also when it was put to him that Dr Etti had recorded that the pain developed two days later his response was, “Then that was what the pain was at the time.”

He acknowledged that there was a lot of bitterness about the whole thing at work and he left because he thought he was forced to leave the ANU and that, obviously on the evidence as he gave it, was of great concern to him.  So on that basis the evidence to which I have referred, we are satisfied that in fact Mr Ghebranious’ recollection is fault and that he did not trip in the manner he described or stumble in the manner described, but he certainly did carry the projector around for some time.

When one then turns to the medical evidence and taking into account that factual basis, if we look at the notes of Dr Etti to which I have already referred, we see that on that basis he had not recorded pain at the time and in a letter of 18 July 1996 to Comcare, which is exhibit R12, Dr Etti expressed his view at that time as follows:

That Mr Ghebranious sustained an injury to his back at work.  One, has constant low back pain, non radiating, worse with movement, started two days after carrying a projector at work going from one building to another.

He also reported:

The specific diagnosis of the condition from which Mr Ghebranious currently suffers is ligamentous strain of the lumbar spine.

He also said:

In my opinion the cause of the injury sustained on 11 June 1996 is carrying a projector at work.

And further in his report – or his letter, he says:

I do not consider that there is any permanent effect or damage caused by the injury.

Mr Ghebranious also consulted later, having moved to Sydney, another general practitioner, Dr Sayegh.  Dr Sayegh gave evidence.  He has been Mr Ghebranious’ general practitioner since 1 October 1999 and still acts in that capacity.  Dr Sayegh’s report is before us as exhibit A2 and his opinion expressed in that report is:

Diagnosis remains consistent with ongoing post traumatic mechanical derangement to the lumbar area of the spine.

When he gave evidence he said that in his opinion the jarring of the back, which could have occurred in an incident such as described by Mr Ghebranious when he said he stumbled, was sufficient to cause an injury to the disc, ie the mechanical derangement to which he referred.  When it was put to him that Mr Ghebranious did not stumble as he had described but had simply carried the projector for around twenty minutes and felt relief when he put it down.  He agreed that it was unlikely that there would have been a frank injury.  It was also put to him that if there had been no pain for two days it was again less likely there was a frank injury and Dr Sayegh agreed.

Mr Ghebranious was examined by Dr Guirgis, a consultant orthopaedic surgeon and Dr Guirgis’ reports are before the tribunal as exhibit A3 and exhibit A15.  Dr Guirgis saw Mr Ghebranious on 24 January 2006 at the request of Dr Sayegh, the general practitioner.  The history he recorded, having been given to him by Mr Ghebranious, was that Mr Ghebranious was carrying an overhead bulky projector for about twenty minutes trying to find the room in which he was supposed to put it, that he tripped but did not fall and the projector slipped from his hands and he quickly grabbed it to prevent it from falling down to the ground and as he took the weight of the projector he felt a sharp in his back, since then his ongoing problems in his back, which gradually and steadily worsened as time passed.

In the report Dr Guirgis expressed the opinion that the 1996 incident was a substantial contributing factor to the injuries that Mr Ghebranious had suffered.  In the view of Dr Guirgis, which he expressed to us when he gave evidence, the mechanism that had been described to him by Mr Ghebranious was capable of causing the injury at the L2/3 level, although he acknowledged that this was an uncommon level which the spine to be injured, that such injuries were far more common at L4/5.  He explained this, his view, by saying that the sudden unguarded contraction and the sudden increase in abdominal pressure would account for the injury.

It was put to him that if Mr Ghebranious had suffered a muscle strain that that would have healed and that the condition that was now apparent at L2/3 level was a natural onset.  He disagreed with that and said that it was common for the degeneration to occur in other discs once there had been a triggering factor at the L2/3 level.  In cross-examination Dr Guirgis agreed that it was difficult to diagnose a condition ten years after an event and you always have to rely on the description of the incident and the description of pain from the patient.  Nevertheless, he thought that the problem at L2/3 was, as he described it, the culprit and that the problems with other discs was a chain reaction.  He acknowledged that he was reliant on the history that he had been given.

When it was put to him that – or he was asked as to his views if he was to assume that Mr Ghebranious did not stumble in the way he described that he did not reach out and in fact if he had walked twenty minutes with carrying the projector and then felt relief when he had put it down, and that he did not complain of pain at the time but rather two days later, he was then asked on that scenario would it be more likely to be a simple back strain.  Dr Guirgis replied that:

Yes, that was more likely.

When it was put to him that there was no radiation into the leg, that pain, and was that more consistent with a strain he said that:

Not necessarily so.

But it is important to note that Dr Guirgis did agree that without that stumbling incident then it was more likely that Mr Ghebranious  suffered a back strain.  We also had evidence from Dr Matalani, who is a consultant occupational physician.  His reports are before the tribunal as exhibits R1 and R2 and he assessed Mr Ghebranious at the request of Comcare in September 2005.  In his view Mr Ghebranious had suffered a low back strain and when the scenario was put to him to which I have just referred of there not being a stumble, he said:

That in his opinion it was most unlikely that there would be a disc lesion or protrusion.  It was far likely that there would be soft tissue or ligamentous strain.

The final practitioner who gave evidence was Dr Bornstein.  He is an orthopaedic surgeon and his reports are exhibits R8 and R9.  He assessed Mr Ghebranious in July of 2006.  In his opinion Mr Ghebranious sustained a lower back strain originally.  He also expressed the opinion that it was clear that Mr Ghebranious has evolved a lesion at the L2/3 level and at the L5 S1 level.  In his opinion the lesion at L5 S1 was in evidence in 1996, having regard to the fact that an osteophyte was already present at that time and in his view all that was being seen now was progression of those changes and in his view the same would apply at L2/3 level.

When it was put to him that there had been the history of the stumble and the sharp pain, in his view the disc lesions at two levels were:

Unlikely in the extreme.

He said:

Had there been an injury such as that you would have expected immediate pain, which would be in the mid back and radiating into the groin and upper thigh, depending on which side the injury to the disc had occurred.

When asked whether an injury to L2/3 would cause pain in the buttocks and the lower back, he said, “No.”  On the scenario of Mr Ghebranious carrying the projector but not stumbling and suffering lower back pain two days later of a non-radiating nature, he said that was far more likely to be lumbar strain similar to the pain that one experiences after vigorous exercise.  He says that the evidence in the 1996 scan, which is exhibit R11, which showed the osteophyte, would indicate that the pain that has been suffered since by Mr Ghebranious  was a natural progression.  He also referred to evidence from a scan of the L2/3, which is exhibit R15.  He said that was the same process and would explain the quite extreme pain at times that Mr Ghebranious says he has suffered since around 1996.

He also confirmed that in his view it was a bit unusual to damage a disc at L2/3 level in the way described.  He said that soft tissue injuries heal and settle.  On the basis of all of the medical evidence we cannot be satisfied that the ongoing pain experienced by Mr Ghebranious is the result of the 1996 injury.  In fact, it satisfies us, on the balance of probabilities, that it was not.  We also have the evidence to which I’ve referred from Dr Bornstein, which offers an alternative explanation for the pain which Mr Ghebranious has suffered and that that pain would be significant.  Counsel for Mr Ghebranious argued that it was too much of a coincidence that the pain as he described it commenced so soon after the incident.

Even taking that into account, however, the medical evidence is so strong that without the stumble it is most unlikely that Mr Ghebranious would have suffered an ongoing injury to his spine that we are still persuaded by the medical evidence and as I said the fact that there is evidence of degenerative disease which accounts for the pain.  The result is then that in by way of decision in matter A2006/40, the reviewable decision of Comcare made 21 February 2006 is affirmed and secondly that in matter A2006/178 the reviewable decision of Comcare made 26 July 2006 is affirmed.  We will make available a copy of the transcript of this decision to the parties probably within the next week as soon as it can be obtained.  Is there anything anyone wishes to add?  All right, we will adjourn the tribunal.  Thank you for your attendance.

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