Khoshaba v Linfox Armaguard Pty Ltd [2013] AATA 89 (21 February 2013)

Legal Directions

Facts

Khoshaba was employed by Linfox Armaguard Pty Ltd (Linfox). He alleged that he suffered injury to his face, right wrist, right neck and shoulder, right knee and lower back on 27 December 2010 when, in the course of his employment, he slipped and fell down the steps of a toll truck.

Liability for the injury to the lower back was denied on the basis that there was no contemporaneous medical evidence to support the claim that Khoshaba had sustained that injury as a result of the fall.

Khoshaba brought an application in the Administrative Appeals Tribunal pursuant to s14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) challenging Linfox’s decision denying liability for his back injury .

The issues for consideration before the Tribunal were whether Khoshaba suffered:

  • An injury to his back in the fall within s5A of the SRC Act
  • An aggravation to an underlying back ‘ailment’ within s5B of the SRC Act, [which, if so, required Khoshaba to establish that this aggravation was contributed to, to a significant degree, by his employment].

Decision

The Tribunal (consisting of Senior Member Bell and Dr Alexander) found that Linfox was entitled to deny liability for the back injury.

The Tribunal relied on the following factors in reaching its decision:

  • The contemporaneous medical records, created at or soon after the time of the fall (including ambulance reports, hospital records, general practitioner records),did not record any complaints by Khoshaba about his back. Further, the records did not disclose any  symptoms of a back injury on examination. The first recorded complaint of back pain by a medical practitioner was five weeks after the accident
  • Khoshaba insisted that he had told a general practitioner (Dr Erian) that he had back pain when he first saw him on 29 December 2010. By contrast, Dr Erian’s notes, which were described by the Tribunal as ‘meticulous’, did not reveal any such reference. Further, Khoshaba had seen Dr Erian on 24 August 2011 to clarify when he first complained of back pain, and Dr Erian recorded in his notes that Khoshaba had pain in the lower thoracic spine on the day of the accident, but the pain was mild and soon resolved. There was no issues with his back at that time. The Tribunal found that it was highly unlikely that Dr Erian would not have recorded a back complaint if it had been mentioned to him Khoshaba
  • Khoshaba’s medical records revealed that he had a history of lower back pain complaints from as early as 1 November 1999 and then on five other occasions in 1999, 2000 and 2006, none of which was reported to any of the doctors he saw after the accident. This suggested that Khoshaba had long standing pre-existing degenerative changes to his back
  • Whilst an MRI scan showed a disc protrusion at the L5 / S1 level, the views of the various medical practitioners was that this was not clinically significant and there was no evidence of radiculopathy. If there had been a heightening of symptoms [which did not occur on the face of the records], it would have been expected to have occurred shortly after the accident.

In the circumstances, the Tribunal was not prepared to accept that Khoshaba suffered or relevantly aggravated a lower back injury at work on 27 December 2010.

Comment

The case highlights the forensic importance of contemporaneous medical records in workers compensation claims in rebutting an applicant’s claim for compensation. In this case, the Tribunal accepted over and above the applicant’s own evidence that there was no injury or aggravation of a disease primarily on the basis of the contemporaneous medical records.

Moray & Agnew acted on behalf of Linfox in the Tribunal.

If you require more information on this article please contact the author directly.

Authored by Shaun Jackson, Senior Associate, Sydney.


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