Anderson v Grocery Delivery E-Services Australia Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Anderson v Grocery Delivery E-Services Australia Pty Ltd [2025] NSWPIC 359
APPLICANT:	Shawna Anderson
RESPONDENT:	Grocery Delivery E-Services Australia Pty Limited
MEMBER:	John Wynyard
DATE OF DECISION:	29 July 2025
CATCHWORDS:	WORKERS COMPENSATION - Lump sum claim for injury to the left shoulder, complex regional pain syndrome (CPRS), and cervical spine arising from collision with dollies in warehouse; shoulder injury accepted; CRPS agreed to be referred to Medical Assessor with shoulder injury; cervical injury denied; whether inference available from complaints and subsequent negative investigations (MRI and nerve conduction) that soft tissue injury occurred; whether pathological change established; Held – content of clinical notes demonstrated no complaints of injury to the neck rather of muscular pain and emotional lability; GP confirmed that claimant exaggerating, Mason v Demasi, and Qannadian v Bartter Enterprises Pty Limited considered; statements of the claimant inconsistent as to mechanism of injury; reports by claimant’s expert inconsistent and contradictory; respondent expert preferred; no evidence of pathological change; Castro v State Transit Authority, Seltsam Pty Ltd v McGuiness, EMI Ltd v Bes, and Fernandez v Tubemakers of Australia considered; award for respondent for cervical spine claim.
DETERMINATIONS MADE:	The Commission determines: 1. There is an award for the respondent with respect to the claim for injury to the cervical spine. 2. Leave is granted to the applicant to lodge further documentation from Dr Mir. 3. I remit this matter to the President for referral to a Medical Assessor for a whole person impairment assessment on the following bases: Date of injury: 17 December 2020 Matters for assessment: Left upper extremity (shoulder, including CRPS, if any) Evidence: Application to Resolve a Dispute and attached documents; Application to admit late documents (ALD) registered 30 April 2025; Reply and attached documents; ALD registered 11 April 2025; ALD registered 3 June 2025, and documents the subject of the above granted leave from Dr Mir. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Shauna Anderson, the applicant, brings an action against Grocery Delivery E-Services Australia Pty Limited, the respondent, seeking payment of lump sum compensation for injuries alleged to have been sustained on 17 December 2020 to Ms Anderson's left upper extremity (shoulder), cervical spine and the development of chronic pain. The parties have agreed that the chronic pain aspect should be referred as part of the shoulder, as the dispute concerns whether Ms Anderson suffers from CRPS, which is a matter for the Medical Assessor.
Dispute notices were issued by the insurer, and the Application to Resolve a Dispute (ARD) was duly lodged.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) did Ms Anderson injure her cervical spine?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

This matter was heard in the Commission on 18 June 2025. The applicant was represented by Mr Luke Morgan, instructed by Mr Wali Mohammad. The respondent was represented by Mr Justin Hart Instructed by Ms Melanie Re. Ms Emma Sarhene appeared for the insurer.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Application to mid late documents registered 30 April 2025;
(c)    Reply and attached documents;
(d)    Application to admit late documents from the respondent registered
11 April 2025, and
(e)    Application to admit late documents from the respondent registered 3 June 2025.

Oral evidence

There was no application in relation to oral evidence.

FINDINGS AND REASONS

Ms Anderson brought an earlier claim against the respondent for weekly payments, which was the subject of a Statement of Reasons from Member Homan in matter W2916/22 on
5 August 2022.[1] Member Homan set out the facts, relying on Ms Anderson’s statement of
[1] ARD page 10.
27 April 2022. There has been a further statement by Ms Anderson dated 7 June 2024, which will be considered in due course.

Matter W2916/22

Member Homan said:
13.   The applicant described her previous employment experience as an aged care nurse. Prior to the commencement of employment with the respondent in August 2018, the applicant cared for her children at home.
14.   On 17 December 2020, the applicant was walking with an empty trolley when it collided with the full trollies being pushed by two of her colleagues. One of the trollies hit the applicant's left shoulder and arm and the left side of her body. The applicant's left arm and the left side of her neck went numb from the pain.
15.   The applicant saw a first-aid officer and an icepack was applied. As the applicant's pain did not subside, she went to see a doctor at the Wentworthville Medical and Dental Centre. An X-ray was taken and the applicant was referred to the in-house physiotherapist.
16.   The applicant took a week off work and returned after the Christmas break, working her pre injury hours in light duties. The applicant is left-handed, so her duties were heavily restricted. The applicant's assistant manager told her that the only light duties available involved standing at the door, reminding staff to wash their hands and put their hairnet on. The applicant was still experiencing excruciating pain.
17.   After one week, the assistant manager assigned the applicant to work in her pre-injury duties on the picking lines. Although the applicant was seeing her general practitioner, Dr Tessy Abraham on a weekly basis, the applicant felt the doctor was disregarding her complaints of pain.
18.   The applicant's pre-injury duties required her to work above shoulder height, which aggravated her shoulder pain. The applicant was not able to fulfil her duties properly and moved at a much slower pace. This would annoy other line members who would complain to the line managers. Other employees frequently shouted at the applicant that she was not going fast enough. When the applicant complained of her symptoms, the line managers would say that she was only certified to work on light duties for one week and she should stop making excuses and get on with work. One particular assistant manager made invalidating comments such as, ‘you're only upset because the doctors haven't written what you want on your certificate’.
19.   The applicant's pain worsened and on 2 January 2021, the applicant returned to see her general practitioner and was referred for an MRI and prescribed painkillers.
20.   In early February 2021, the applicant started her shift with pain in her arm as usual. The applicant struggled with her work duties and the pain in her arm intensified to the point where even the slightest movement was causing excruciating pain. The applicant informed her manager who asked her to take a break to see if that helped. The applicant was interrogated as to her symptoms by management and they continued to pass derogatory comments. The applicant found this psychologically overwhelming and felt her managers were convinced that she was faking her pain and making a scene. The applicant left the worksite at 9.00am and had a meltdown in her car for about 30 minutes before being able to drive home.
21.   The applicant continued to complain of pain to Dr Abraham but was told to continue to take medication which did not resolve the problem. The applicant continued with physiotherapy until March 2021.
22.   As a result of the constant pain and restriction of movement, the applicant's mood was always down and she became anxious and stressed about her future. Dr Abraham recommended that the applicant see a psychologist and the applicant consulted with Denise Piercy in March 2021. The applicant disclosed that she was very distressed by the ongoing pain and extreme financial stress. The applicant was diagnosed with an adjustment disorder with mixed anxiety and depressed mood.
23.   The applicant's employment with the respondent was terminated in June 2021.
24.   The applicant had a disagreement with Dr Abraham as she believed that nerve testing had been delayed. The applicant began consulting a new general practitioner, Dr Osman, on 18 June 2021.
25.   The applicant said that as a result of the injury to her left shoulder, she continued to struggle with day-to-day domestic tasks and personal care.
26.   The applicant described prominent pain in her neck, left arm and left shoulder with limitation of movement in these parts. The applicant was limited to using her non-dominant right arm. The applicant was unable to drive and participate in recreational activities. The applicant had become socially isolated.
27.   The applicant remained under the care of a psychologist and was prescribed Cymbalta for nerve pain and symptoms of depression. The applicant was being issued with certificates of capacity by Dr Osman confirming her inability to return to work. Dr Osman recommended ongoing physiotherapy, psychological treatment and pain specialist treatment.
28.   Member Homan described the dispute in the case before her at [100] that there was:
‘…no dispute that Ms Anderson sustained an injury to her left shoulder on 17 December 2020. The dispute between the parties goes to the ongoing effects of that injury on the applicant's capacity to for work.’
29.   She further said at [105]:
‘There is consensus in the medical evidence before the commission that the injury on 17 December 2020 constituted a soft tissue injury to the left upper limb. Whilst initial radiological investigations including an x-ray and ultrasound of the shoulder and MRI of the cervical spine failed to reveal any significant pathology, the applicant has consistently reported severe symptoms of pain as well as some restriction of movement in the upper limb’.”
I adopt Member Homan’s summary of the facts and issues as set out above.

Second statement by applicant

As indicated, Ms Anderson made another statement on 7 June 2024.[2] She stated that she started work at the HelloFresh centre in 2018 and she described the nature of the duties she was required to do in some further detail, which was to work on an assembly line or staging area where recipe bags were stocked with ingredients. She described the subject injury in some further detail. She said at [12]:
"... as I was lining up my three empty dollies in their position where they are meant to be, the full dollies of my colleagues Jacob and Dean came forward and pushed onto my empty dollies and struck me.
13. As a result of the collision initially one of the dollies hit my top left-hand side of my shoulder. I tried to take the dolly off me when the other dollies which were still being pushed by Dean and Jacob struck the back of my neck on the left side and I was pinned on the left-hand side of my body with the dollies, specifically on the left side of my neck, left shoulder, inner part of my left bicep and left elbow. As the dollies were pinned onto my left side of my body I was yelling out for anyone …. I felt an immediate jarring of my neck and upper body with pain going across the top of my shoulder and down the middle of my biceps. My left arm and the left side of my neck went numb from the pain.”
[2] ARD page 6.
At [19], Ms Anderson also stated that on 2 January 2021 she had taken herself to Westmead Hospital:
"... as I was having a lot of pain in my neck on the left-hand side which went down to my left arm. I was experiencing tingling, pins and needles in my left arm. My left arm was feeling hot. The pain in my left arm was an indescribable pain that I never felt in my life. At the hospital, the left side of my neck and my left shoulder were examined in terms of the range of movement and ice packs were applied to the left side of my neck and left side of my shoulder..."
On 4 January 2021 Ms Anderson was referred by her GP Dr Abraham to undergo the MRI scan of her cervical spine. She said that when she returned to work after a week off, she was doing her pre-injury hours but on light duties. She said that she could not work at her usual rate as she was only 165cm tall and her work involved doing a lot of reaching above her head. This in turn “aggravated the neck and left shoulder pain."
Ms Anderson largely repeated the evidence which she had given in her first statement as to the attitude of her colleagues and the circumstances under which she ceased work in early February 2021.
In discussing her disagreement with Dr Abraham she said at [40]:
"I raised my concern about increasing symptoms in the neck and left shoulder repeatedly with Dr Abraham who for some reason was reluctant to do any testing to see what was causing the problem despite my many requests to do so."

CONTEMPORANEOUS DOCUMENTATION

Incident report form

On 17 December 2020 Ms Anderson filled in an injury report form.[3] It stated in handwriting:
“Went to A3 to get empty dollies. On the way back to Kit 16, Jacob and Din pushed dollies towards staging. We collided, it pushed the dollies back and it jarred my arm back….”
[3] ARD page 32.

Wentworthville Medical & Dental Centre

Ms Anderson attended the Wentworthville Medical & Dental Centre on 17 December 2020 that she had attended from at least October 2016.[4] On 17 December 2020 she was seen by Dr Tessy Abraham shortly after midday. The entry read:
“Reason for contact:
Pain
left shoulder work-related injury o/e no external bruise but very painful rom x-ray r/o fracture for rest with Mobic”
(grammar and spelling corrected).”
[4] ARD from page 112.
On 22 December 2020 Dr Abraham repeated that an X-ray had ruled out fracture to the left shoulder, and that there was a full range of movement.
On 29 December 2020 Dr Abraham recorded:
“getting better slowly ROM nearly 4 planned to stay on r.d.+ start physio.”
On 31 December 2020 Ms Anderson was seen by ‘Vicgnesai Tharmarajah’, who saw
Ms Anderson on a number of occasions but did not at any stage identify herself as “Dr” which I assume is her qualification. Be that as it may, the entry read:
“Subjective:
patient reports work cover injury to L shoulder; jarred shoulder
has had difficulty moving arm
is currently on restricted duties and is coping well
patient’s daughter/son in attendance during session
patient appeared distracted during the assessment and treatment…
Objective
[full range of motion was measured for shoulder flexion and abduction]
Very TOP [tender on palpation] through L shoulder and upper cervical musculature.”
As noted above, Ms Anderson presented at the Emergency Department of Westmead Hospital on 2 January 2021, of her own volition. These notes will be considered shortly.
On 4 January 2021 Dr Abraham noted:
“Weekend ended up in hospital gone via d/c [discharge] summary ?? coming from cervical spine”.
The entry also noted that an MRI of the cervical spine was requested.
On 8 January 2021 Dr Abraham noted:
“cervical MRI scan report discussed in detail essentially normal esp left side. Right side got o.a.
Now she said she is in lot of pain lyrica causing drowsiness so she does not want to go back to work to do light duties
keen to have more days off
she missed last few days work [supposed to be on light work
counselled
finally I pushed her to start very light work which won’t cause any aggravation.”
On 1 February 2021 Dr Tharmarajah noted that Ms Anderson was complaining of pain progressing from the left shoulder down to her left elbow. Amongst other things it was noted that Ms Anderson’s “arm feels dead” when working eight-hour shifts and that she was cradling her arm due to pain. The entry also noted:
“Patient advised that MRI of cervical spine and [ultrasound] of shoulder NAD.”
On 8 February 2021 Dr Tharmarajah noted amongst other things that Ms Anderson’s “elbow and shoulder pain equal in severity” and:
“Patient appears very depressed and every time she described the pain, she would become emotional and cry”.
On 22 February 2021 Dr Tharmarajah noted that Ms Anderson had been advised by
Dr Biggs that surgery was not indicated that the intervention of a pain specialist would be needed. It was noted that “patient stated that she was confused following appointment and unsure of future plans.”
On 4 March 2021 Dr Abraham answer a questionnaire from the insurer.[5] She said (in handwriting) that the diagnosis was of “soft tissue injury to left shoulder ? CRPS.”
[5] Respondent late documents dated 11 April 2025 page 24.
Dr Abraham was asked whether Ms Anderson was exaggerating her symptoms and she said that she held that opinion, adding “I may be wrong!!!”
On 25 March 2021 Dr Tharmarajah noted that Ms Anderson had seen “IME” and felt very tender on palpation when being assessed. On examination, Dr Tharmarajah noted that
Ms Anderson was very tender on palpation through L shoulder and upper cervical and thoracic musculature.
On 16 April 2021 Dr Abraham noted that Ms Anderson was waiting for approval from the insurance company to see a pain specialist and on examination Dr Abraham noted “even gentle touching on left upper limb causing severe pain.”
On 12 July 2021 Dr Abrahams noted:
“SHE WAS VERY RUDE AND ANGRY TOWARDS ME” (As written).
The last entry in the notes was dated 26 July 2021 from Dr Abraham.

ED Westmead Hospital

The discharge summary from the Emergency Department of Westmead Hospital contained the following notes:[6]
[6] ARD from page 107.
Diagnoses
Principal
Additional
Neck pain (ED Suspected)
Subjective:
Agreeable to Physio Prac assessment.
17/12/2020 was c:t work pushing a dolly away from her as a colleague was pushing one toward her. LEFT arm was thrown backwards forceably. Went to first aid officer who applied ice, went to LMO who organised an XR and was told had no fractures or bone damage. Physio last week who massaged and ?made things worse. Not getting any better, unable to sleep. Self-presented to ED. Feels like LEFT arm feels dead / heavy
Next physio appt is Thursday. otherwise feels well.
…..
C/S
Flexion: -1/2 pain limited - referring down LEFT arm Extension: -1/4 pain limited- referring down LEFT arm RSF: ~1/4 pain shooting down LEFT side
LSF: -3/4, pressure in LEFT side of neck/shoulder
RR: 1/2 LEFT sided neck and arm pain LR: 1/2 pain in1o LEFT shoulder.
Impression:
C/S radiculopathy
Treatment
DW EDMO Lerzer; agrees with PP plan of ECG, advised refer back to LMO for MRI of c-spine to Ax for disc injury, will kindly assist with analgesia prescriptions.

Hill Street Medical Centre

Ms Anderson also attended the Hill Street Medical Centre, between 2021 and 2024. The first consultation included:[7]
[7] Respondent late documents dated 11 April 2025 page 120.
Surgery consultation
Recorded by: Dr Khaled Osman Visit date: 18/06/2021 Recorded on: 18/06/2021
17 Dec 2020
was pushing empty dollies at work
stack of dollies hit her L chest? other employees pushed it by accident- had some pain was reported to her manager who attended to her first aid
nil falls nil LOC
nil head injuries
Been to GP X-Rays done
nil F# was told
1 week off then returned to work
had issues with pain in L arm/chest after she returned to work”

EXPERT OPINION

Dr Mohammed Assem, Rehabilitation Specialist

Dr Assem was retained by Ms Anderson as her expert witness in 2021. On 27 September 2021 Dr Assem took the following history:[8]
“On 17 December 2020 she was pushing an empty trolley when she pushed into a stationary full trolley on her left side. She reported a significant impact over the left biceps and a second impact to the left side of her body and head. The first aid officer applied an icepack to the affected area. She later consulted Dr Abraham who noted a very painful left shoulder but there was no external bruising.”
[8] ARD page 63.

Dr Assem’s findings on examination regarding the cervical spine were:
“Ms Anderson had a depressed affect, was teary on occasions and appeared to be drowsy. Her height was 169cm and she weighed 140kg. She was cooperative throughout the examination. She did report any neck complaints [sic] and demonstrated a reasonably good range of cervical movement.”
The following question and answer appeared:^[9]
“5. Please confirm the cause of the injury to the left shoulder and cervical spine.
She did not report any symptoms involving her cervical spine and demonstrated a normal range of cervical movement. Her left shoulder injury was complicated by chronic regional pain as a consequence of her current aggravations and exacerbations while performing her usual duties at work. She now has symptoms and signs suggestive of CRPS¹ but I was unable to determine whether she satisfied the diagnostic criteria for this condition.”
[9] ARD page 66.
On 30 June 2023 Dr Assem repeated the above history. His diagnosis was:[10]
“Ms. Anderson appears to be suffering from Chronic Pain Syndrome, specifically affecting her left shoulder. The evidence of persistent pain and stiffness in her shoulder, limitations in her movements, along with signs of sympathetic dysfunction (e.g., global sensory loss, tremors, weakness, and slight temperature variability in her left arm).”
[10] ARD page 54.
In a supplementary report of the same date, Dr Assem said:[11]
“Cervical Spine
Ms Anderson has neck pain and stiffness with asymmetry of motion and spinal dysmetria giving a DRE Cervical Category II or 7% WPI inclusive of 2% for a moderate limitation in her activities of daily living. There were no deductions applicable in this matter.”
[11] ARD page 61.
On 24 September 2024 Dr Assem reported again.[12] The following question and answer appeared:
“We would asked doctor on the background of the doctor's early opinions with reference to the attached, if doctor could provide a diagnosis relative to Ms Anderson's cervical spine injury and provide an explanation as to the evolution or cause of her neck pain and its relationship to the incident in question noting that doctor had attributed 7% WPI to the neck in his supplementary report of 30 June 2023.
….
The initial incident on 17 December 2020 at the Hello Fresh Distribution Centre occurred when Ms Anderson was struck by a trolley pushed by her colleagues. The impact pinned her against the left side of her body, causing immediate and significant pain in her neck, left shoulder, and upper arm. She also experienced numbness in her left arm and neck, indicating a substantial soft tissue injury. These symptoms included jarring pain radiating from her neck to her shoulder and arm, which led to difficulties in movement.
In the subsequent weeks, Ms Anderson’s condition progressively worsened. On 2 January 2021, she presented to Westmead Hospital with left shoulder pain, where she exhibited reduced strength in her left upper limb, limited range of motion, and tenderness in her neck and shoulder. There was notable hypersensitivity to light touch. The initial diagnosis was cervical radiculopathy, and it was recommended that she undergo an MRI scan to rule out a disc injury. Despite physiotherapy and participation in a therapeutic exercise program, her symptoms persisted.
Currently, Ms Anderson remains under the care of a pain management specialist…”
[12] ARD page 43.
Dr Assem wrote a further report on 11 April 2025 in response to a report from Dr Burrows, the expert qualified by the respondent. This will be considered in sequence.

Dr M Dowla

Dr M Dowla, neurologist, was asked by Dr Abrahams to conduct some nerve conduction tests. He reported on 14 July 2021. He said:[13]
“Many thanks indeed for referring this 37-year-old factory pick and packer who presents with a history of injury at work on 17/12/2020. She was working in a factory which is a food industry and she was pushing dollies which hit her left shoulder and left upper chest and elbow. She went to the first aid room and put an ice pack on her left shoulder and then she went to a medical centre. She had an x-ray which did not show any fracture. She experienced persistent pain in the left shoulder and burning feeling in the left side of her neck.”
[13] ARD page 101.
Dr Dowla’s conclusion was:
“I believe she has a soft tissue injury in her left shoulder. She is likely to improve with physiotherapy and exercise. I also suggested her to take simple analgesics such as paracetamol or Panadol Osteo.”

Dr Wijetunga and Dr Canaris

As noted above, the respondent relied on reports of Dr Nel Wijetunga, occupational health physician, and Dr Christopher Canaris, consultant psychiatrist, but only to the extent of the history recorded, as their opinions offended the provisions of Regulation 44 of the Workers Compensation Regulation 2016.
Dr Wijetunga reported on 9 April 2021.[14] He took a history that Ms Anderson reported that the empty dollies hit her around the left breast and elbow in the collision.[15] Ms Anderson complained to him about pain around the top of her shoulder which was around the clavicle, went into the arm pit, breast and the medial aspect of her elbow, going to the back of the shoulder.
[14] Respondent ALD 11 April 2025 page 1.
[15] At page 5.
Dr Canaris stated in his report of 17 July 2023 that Ms Anderson had been “off with a left shoulder injury in December 2020.” He said that Ms Anderson was “at a dolly which needed to be moved… and a full dolly was pushed into her…”[16]
[16] Respondent ALD 11 April 2025 page 13.

Dr Burrows

For the respondent, Dr Gregory Burrow first saw Ms Anderson on 20 February 2023.[17] He took a history that Ms Anderson “was bashed about the left upper chest and inner aspect of the left elbow by one or two fully laden dollies being pushed by colleagues. She experienced marked left shoulder, left arm and inner elbow pain…”
[17] Reply page 34.
On 1 December 2023 Dr Burrows reported further, where the following question and answer was recorded:[18]
“a. Do you consider the worker sustained an injury to her cervical spine in the incident of 17 December 2020
It is my opinion there has been no injury to the cervical spine.
The initial trauma was to the medial aspect of the left arm and the elbow, and chest. At no point was there a wrenching injury or direct trauma to the neck.
There have been no neck symptoms per se, and none investigated initially.
A subsequent MR scan of the cervical spine was done to exclude radiculopathy as a differential diagnosis of her atypical upper extremity pain complaints. Cervical Spine MR scan subsequently reported changes consistent with age related degenerative changes at a single level with no neural compromise. Ms Anderson has not been diagnosed with an isolated cervical spine condition and has had not interventional treatment for a stand-along neck condition.”
[18] Reply page 54.
On 22 December 2024 Dr Burrows reported further.[19] He summarised his prior reports, carried out an examination and reported:[20]
“There remain continuing signs of inconsistency and unreliability, noted again in this report and in my previous reports, with regard to observed shoulder motion and examined shoulder motion, and also with similar findings in the cervical spine.
… There has been no isolated injury to the left shoulder or cervical spine….
It is my opinion that the worker’s employment has been a substantial contributing factor to her presentation, but not to her cervical spine complaints as there is no isolated cervical spine condition, as detailed above.”
[19] Reply page 59.
[20] Reply page 68.
Dr Burrow was asked to comment on Dr Assem’s 24 September 2024 report. Dr Burrows said:[21]
“…. I particularly note that [Dr Assem’s] diagnoses and findings have changed over a period. I am unable to understand or explain the reason for these changes, or apparent inconsistency. In particular, Dr Assam does not explain how he now finds there is a cervical spine condition, and finds a permanent impairment for it, given his index reports mention no such condition.”
[21] Reply page 72.

Dr Assem’s response

Dr Assem was asked to respond, and supplied a further report dated 11 April 2025.[22] He said variously:
“I respectfully disagree with Dr Burrow’s conclusion. The workplace incident on 17 December 2020 involved a significant blunt force trauma when Ms Anderson was struck and pinned by a trolley. This mechanism of injury is consistent with the onset of symptoms involving the cervical spine, particularly as the pain extended into the upper trapezius and posterior scapular region, which are anatomically linked to cervical structures.
Ms Anderson presented to Westmead Hospital on two January 2021, where she was advised to undergo an MRI cervical spine to rule out radiculopathy…..it is… clinically plausible that a primary soft tissue injury to the shoulder may have led to secondary cervical sprain through altered movement patterns or compensatory muscle use.
During my subsequent in-person assessment in 2024, Ms Anderson demonstrated objective clinical findings, including markedly reduced cervical range of motion, titubation, and muscle guarding, all of which are consistent with a chronic neck pain. While Dr Burrows interpreted the titubation as potentially non-organic, in my clinical opinion, such features are commonly associated with guarding or cervical dystonia and may also be seen in Complex Regional Pain Syndrome.. A diagnosis now supported by both clinical findings and the opinion of her treating pain specialist, Dr Mir.
…. The initial assessment in 2021 was conducted remotely…. While the cervical spine showed normal movement initially and CRPS was not diagnosed, the WorkCover Guidelines stipulate that CRPS requires symptoms to be present for at least one year. My subsequent in-person assessments, which showed marked symptoms consistent with CRPS, justify a revised diagnosis…
While Dr Burrows has highlighted perceived inconsistencies, these findings are not uncommon in patients with CRPS or chronic pain disorders….”

SUBMISSIONS

[22] applicant ALD dated 30 April 2025 page 7.

Applicant

Mr Morgan relied heavily on the contents of the clinical notes to establish firstly that the entries by Ms Anderson’s first GP did not adequately reflect the complaints made. He also relied on the scans and nerve conduction studies that were performed as a result of the complaints by Ms Anderson. He referred to Davis v Wagga Wagga Council[23] as to the caution that should be applied to the content of clinical notes and contrasted the note-taking skills exhibited by the GP, Dr Abrahams with that of Dr Tharmarajah, at the same practice, Wentworthville Medical & Dental Centre. Dr Tharmarajah had recorded complaints of pain in the “upper cervical musculature,” and her records were more detailed.
[23] [2004] NSWCA 34.
He referred to the attendance at Westmead hospital by Ms Anderson on 2 January 2021 where she had reported to the Emergency Department herself because of her symptoms. The fact that an MRI scan of the neck was taken at that time reflected the concerns held by the emergency doctors that there might have been some cervical involvement, Mr Morgan submitted. The fact that no abnormality was detected did not equate to a finding that there had been no injury, he submitted, and it was not suggested by the evidence that
Ms Anderson suffered anything more than a soft tissue injury. The complaints by
Ms Anderson were consistent with her having suffered such a soft tissue injury. There was a continuity of complaints, Mr Morgan submitted, demonstrated by the referral to Dr Dowla on 14 July 2021 and his recording of a burning feeling in the left side of the neck. Mr Morgan submitted that such evidence was sufficient to establish the occurrence of an injury and it was up to the Medical Assessor to assess its severity. Dr Assem’s reports of 20 September 2024 and 11 April 2025 were further support in this regard.

Respondent

Mr Hart said that Ms Anderson's case really consisted of her own subjective complaints. No pathological change however had been demonstrated to enable her to satisfy her obligation to establish that an injury had occurred. This was particularly so in view of the findings of significant exaggeration and non-organic conduct reported by her GP. Mr Hart submitted that a mere anatomical connection between the shoulder and neck did not demonstrate a neck injury, and caution needed to be exercised in weighing Ms Anderson’s complaints against the reports of exaggeration and unreliability by Ms Anderson. There had been no pathological explanation for the source of her complaints notwithstanding that there had been an immediate investigation thereof when she attended at Westmead Hospital. The essential complaint was of numbness at the hospital which suggested a possible involvement of the neck and the occurrence of a traction injury and radiculopathy. That possibility was negated by the radiology. Mr Hart submitted that Ms Anderson’s first statement of 27 April 2022 was of more probative value as it predated the current dispute and was unvarnished by the litigation process. The second statement of 7 June 2024 Mr Hart submitted was affected by the litigation process and involved an amount of reconstruction two years after her first statement, as it was only in that statement that she mentioned the visit to Westmead Hospital.
Mr Hart acknowledged that caution had to be exercised if any reliance were to be made on the contents of clinical notes, citing Mason v Demasi,[24] but that nonetheless adverse findings could be made. Mr Hart submitted that throughout the notes of the spectre of exaggeration was present. He submitted that Dr Tharmarajah’s notes were more detailed, but there was a considerable amount of evidence including examination as well as the notes of the complaints. Ms Anderson was seen by three GPs in clinical practice and the highest probative value relied on by Ms Anderson was a complaint of cervical musculature pain and tenderness on palpation. There was no complaint of neck injury and indeed no finding of any soft tissue injury. Mr Hart referred to the detail of the evidence in support of his submission and he referred again to the results of the MRI scan taken at the Westmead Hospital. He submitted that the subjective complaint was not enough to establish injury. The entries in the clinical notes recorded entirely subjective complaints and there were no records that would justify a finding on an objective basis that there had been her cervical or thoracic injury. The histories taken by the GP were specific to the injuries Ms Anderson was complaining of. Mr Hart referred to the reports of Dr Witjetunga and Dr Dowla, submitting that in neither case were findings about the actual neck made, either inferentially or specifically.
[24] [2009] NSWCA 227.
Dr Burrows for the respondent found Ms Anderson to be unreliable, Mr Hart observed.
Dr Burrows said she was exaggerating and the psychological condition that she acknowledged herself would cause some hesitation before her complaints could be accepted without any independent support, of which there was none. Mr Hart submitted that support for Dr Burrow’s findings regarding the exaggeration could be found from Ms Anderson’s first GP, Dr Abraham, and he referred to the handwritten facsimile that Dr Abraham had sent to the insurer confirming that Ms Anderson was exaggerating her symptoms. Dr Abrahams view was significant, Mr Hart submitted, as she had the most contemporaneous contact after the injury.
Mr Hart submitted that Dr Assem had changed his opinion, and he referred to Dr Assem’s evidence in that regard. He submitted that I would not be persuaded that there had been any pathological change in the cervical spine caused by the injury.

Mr Morgan in reply

Morgan submitted that it was Dr Burrow who was inconsistent as he found there was no shoulder injury which was a contradictory approach to that injury when compared to other evidence. Mr Morgan submitted that Dr Abraham was “happy to trash” Ms Anderson’s presentation, but “couldn’t be bothered” to make full entries of what she had been told by
Ms Anderson. Thus Dr Abraham’s handwritten denunciation could not be given much weight.
Mr Morgan referred to the report of Dr Wijetunga, but he contrasted that with an entry in clinical notes by Dr Tharmarajah of 25 March 2021 which noted on examination that
Ms Anderson was very tender on palpation through the left shoulder and upper cervical and thoracic musculature. This was an illustration of the reason for the caution about clinical notes described in Mason v Demasi, Mr Morgan said, as Dr Wijetunga did not record any history of neck involvement.
Mr Morgan observed that the first consultation between Dr Assem and Ms Anderson was conducted by Zoom, and Dr Assem later addressed the inconsistency and thus laid any concerns to rest. Mr Morgan submitted that this was a case where the worker in her statements described the circumstances of her injury. The submission that complaints of pain were insufficient to establish a pathological change begs the question, Mr Morgan said, as to why the complaints of radiating pain caused nerve conduction tests and an MRI scan to be taken to exclude structural damage. The complaints of positive clinical signs were such as to require an investigation, Mr Morgan argued, and that was sufficient to establish that there had been a pathological change.

Mr Hart by leave

Mr Hart responded that whilst the first consultation with Dr Assem had indeed been by Zoom, nonetheless there was no history taken about the involvement of the cervical spine. Mr Hart contrasted the approach taken by the insurer to the findings by Dr Burrow that there had been a soft tissue injury to the left shoulder. That injury had been established in the contemporaneous notes and was accepted by Dr Burrow, albeit that Dr Burrow considered it had resolved. Accordingly, as injury had been established, it became a matter for assessment by a Medical Assessor.

Mr Morgan by implied leave

Mr Morgan argued that there was no evidence of a distinct structural pathology in the left shoulder. Further argument developed and I accordingly ordered the parties to lodge authorities regarding the requirement for a change in pathology to be part of the definition of an injury.
On 3 July 2025 submissions were duly lodged by Mr Morgan, which will be incorporated in the following discussion.

DISCUSSION

The issue in this case resolves itself to a consideration of what evidence is required to establish that an injury has occurred. Ms Anderson’s case, at its highest, consists of complaints of pain.
Ms Anderson asserted in her first statement dated 27 April 2022 that she hit the corner of one of the dollies that were being pushed by her two colleagues between the top of her shoulder and the middle of her biceps on her left hand side. She said that her left arm “and the left side of my neck” went numb from the pain.
She reported her injury on the same day, 17 December 2020, at 10.15am, soon after the occurrence of the injury. Her description at that stage was that the collision with the dollies “jarred my arm back.” It is quite reasonable that she would not have been aware of the extent of any injury at that stage. She attended Dr Abraham two hours later at 12.08pm, complaining of left shoulder pain, which prompted an X-ray of the left shoulder to be ordered. She attended the GP practice on another three occasions in the year, 22 December 2020,
29 December 2020 and 31 December 2020, the last consultation being with Dr Tharmarajah after seeing Dr Abraham on the other occasions.
On 29 December 2020 Dr Abraham recorded that Ms Anderson was getting better slowly and at that stage was on restricted duties. On 31 December 2020 Dr Tharmarajah reported that Ms Anderson attended with her “daughter/son” and that Ms Anderson “appeared distracted during assessment and treatment”. Dr Tharmarajah recorded that on examination Ms Anderson was very tender on palpation “through L shoulder and upper cervical musculature.”

In her first statement of 27 April 2022, Ms Anderson did not mention that she then took herself to Westmead Hospital Emergency Department on 2 January 2021, about which
Dr Abraham noted on 4 January 2021, “weekend ended up in hospital gone via d/c summary ?? Coming from cervical spine.”
Dr Abraham caused an MRI scan to be taken in conformance with the suggestion from the Emergency Department, which demonstrated no abnormality.
Mr Morgan submitted that the relevant fact from the admission to the Emergency Department was not that the MRI that was eventually taken did not confirm that Ms Anderson had suffered any disc injury, but rather that her complaints were consistent with the presence of a soft tissue injury of such clinical significance that the discharge summary spoke of an impression that she was suffering from cervical spine radiculopathy, as she was complaining of “left-sided neck and arm pain.”
Whilst that interpretation is certainly possible from that entry, I note that the history and complaints taken at the hospital were consistent with the content of the report of injury to the employer, and the previous three entries from the GP practice. The discharge summary recorded the history that Ms Anderson’s left arm was thrown backwards forcibly and that she self-presented to the Emergency Department complaining “feels like left arm feels dead/heavy.” The reference to left-sided neck and arm pain appeared to refer to an examination of the cervical spine which led to the examiner’s impression that Ms Anderson might have been suffering from cervical spine radiculopathy.
In the context of an Emergency Department admission, it is not surprising that the medical officers on duty would undertake an investigation to exclude the possibility of any major injury, in this case to the cervical spine. Thus, the entry in the discharge summary did not refer to a “diagnosis”, but rather to an “impression.”
The subsequent entries in the clinical notes, recorded above from [24], tend to confirm that it was the complaint taken at Westmead Hospital of Ms Anderson’s left arm feeling dead/heavy that prompted her attendance. Also relevant amongst those entries was that of
8 February 2021 which recorded that Ms Anderson appeared to be very depressed and emotional, and that she would cry every time she described the pain. This aspect of her presentation was reflected in the decision of Member Homan, who noted that Ms Anderson’s mood was always down and she had become anxious and stressed about the future, to the extent that she was referred to a psychologist in March 2021 and that she was diagnosed with an adjustment order.
Notwithstanding, on 14 July 2021 Ms Anderson underwent nerve conduction tests with
Dr Dowla. As noted above, he took a history of injury to the left shoulder, upper chest and elbow. He did also note the complaint of persistent pain in the left shoulder “and burning feeling in the left side of her neck.” Mr Morgan repeated his submission that it was not the fact that there were no relevant results from the tests, but that the investigation by Dr Dowla had been prompted by complaints that were consistent with the occurrence of a soft tissue injury. Mr Morgan was correct in that submission, except that Dr Dowla concluded that his tests indicated a soft tissue injury in the left shoulder, not the cervical spine. Ms Anderson had been referred by Dr Abraham and the diagnoses listed by Dr Dowla were confined to:
(a)    depression, 2013;
(b)    obesity, and
(c)    tissue injury, left shoulder and left arm.
It may be that the history taken regarding the burning feeling had been taken by
Dr Dowla, as the previous most relevant entry in the clinical notes that potentially implicated the neck was that of 25 March 2021 when Dr Tharmarajah noted that
Ms Anderson was very tender on palpation through the left shoulder “and upper cervical and thoracic musculature.” Mr Morgan also referred to Ms Anderson’s complaints of pain radiating from the left shoulder to the left elbow with numbness and pins and needles, as being a similar indication of sufficient clinical significance to sustain a finding that there had been a soft tissue injury to the cervical spine.
Both counsel cautioned against the dangers of making findings about causation based on the contents of clinical notes from health providers. It was clear from Dr Abraham’s viewpoint that she was not impressed with her patient. This is evident from her response by facsimile to the insurer dated 4 March 2021, in which she agreed that Ms Anderson was exaggerating her symptoms. Dr Abraham added an acknowledgement that she might be wrong, but the three exclamation marks following that acknowledgement seemed to indicate that she did not think so.
Further, Ms Anderson became so antagonistic to Dr Abraham that Dr Abraham made the note on 12 July 2021 regarding Ms Anderson’s rudeness and anger towards her.
The need for caution however does not eliminate the use of clinical notes in making findings about causation. In Qannadian v Bartter Enterprises Pty Limited [2016] NSWWCCPD 50 at [53] DP Michael Snell said:
“53. Mason [v Demasi] is from a line of appellate authority dealing with the use of clinical notes in the fact finding process. A number of these authorities are referred to in Winter v New South Wales Police Force [2010] NSWWCCPD 121 (which was reversed on appeal, on a different basis), where Roche DP at [183] said:
‘It is important to remember that clinical notes are rarely (if ever) a complete record of the exchange between a patient and a busy general practitioner. For this reason, they must be treated with some care (Nominal Defendant v Clancy [2007] NSWCA 349 at [54]; Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]; King v Collins [2007] NSWCA 122 at [34]–[36]).’
37.The authorities (including Mason) do not preclude the use of such evidence in the fact finding process, nor do they provide that such evidence should not be relied on, in the absence of evidence from the author of the clinical notes. The authorities require the use of caution by a fact finder, including having regard to the circumstances in which such notes are brought into existence.”
I disagree, with respect, with Mr Morgan’s submission that Dr Abraham had failed to record what she had been told. True it is, that in a busy medical practice some matters of history that were not germane to the medical problem being managed might well not be recorded, and be overlooked. However in the present case, the predominant feature of Ms Anderson’s presentation to both Dr Abraham and Dr Tharmarajah increasingly became her emotional lability. As indicated, the clinical entries noted variously that she would become “distracted”, “very emotional during treatment”, “emotional and cry”, “confused”, and “very TOP (tender on palpation)”. These entries were common to both Dr Abraham and Dr Tharmarajah and it seems that Mr Morgan’s submission was based on Dr Abraham’s opinion as to exaggeration. In the light of the evidence there appeared to be ample justification for such an opinion.
Whilst therefore the content of the clinical notes was of itself sufficient to raise some doubts as to the reliability of Ms Anderson’s case, there were further discrepancies of some significance.
Firstly, as to the contrast in statements. Ms Anderson did not claim in her first statement that her neck was involved in mechanism of the accident. Her description on 27 April 2022 was:[25]
“… I hit the corner of one of the dollies between the top of my shoulder and down to the middle of my bicep on the left-hand side of my body. My left arm and the left side of my neck went numb from the pain.”
[25] ARD page 1.
Further, in that statement she did not mention her visit to the Emergency Department of Westmead Hospital on 2 January 2021.
Whilst she said that the left side of her neck went numb, in her second statement dated
7 June 2024 she said:[26]
“As a result of the collision initially one of the dollies hit my top left-hand side of my shoulder. I tried to take the dolly off me when the other dollies which were still being pushed by Dean and Jacob struck the back of my neck on the left side and I was pinned on the left-hand side of my body with the dollies, specifically on the left side of my neck, left shoulder, inner part of my left bicep and left elbow.”
[26] ARD page 7.
Thus, Ms Anderson’s description of the injury had developed from being struck on the top of her shoulder to being struck on the back of her neck. This assertion was inconsistent not only with her first statement, but with her report of injury to the employer, the history taken by
Dr Abraham about two hours after its occurrence, and all other histories taken within the evidence, save the final of the three histories taken by Dr Assem, which will be discussed below.
Mr Hart submitted that the additional allegations about the neck, including the visit to the Emergency Department, demonstrated that Ms Anderson had become affected by the litigation process over the years and accordingly her second statement involved an element of reconstruction. Without more, such a submission of itself had some substance, but in the circumstances of this case, when added to the other reservations I have about the evidence, is of considerable force.
A second issue concerns the opinions of Ms Anderson’s expert witness, Dr Mohammad Assem. As noted above, in his first report of 27 September 2021 Dr Assem was specifically asked about the cause of the injury to the left shoulder and cervical spine. His answer regarding the cervical spine was unequivocal, namely:
“[Ms Anderson] did not report any symptoms involving her cervical spine and demonstrated a normal range of cervical movement.”
Mr Morgan sought to explain that comment by submitting that this consultation had been conducted over Zoom, but Dr Assem’s opinion was not wholly based on examination, it was rather that she had not reported any symptoms. Dr Assem also felt able to determine by Zoom that a normal range of cervical movement had been demonstrated, which he subsequently resiled from, but the failure to give a history of symptoms did not depend on the vagaries of a consultation on the Internet.
Dr Assem’s second report was dated 30 June 2023, and he repeated the history he had taken in 2021, namely:
“She reported a significant impact over the left biceps and a second impact to the left side of her body and head.”
The diagnosis given by Dr Assem on this occasion was a chronic pain syndrome specifically affecting her left shoulder, accompanied by signs of sympathetic dysfunction. On
27 September 2021 it had been similar, namely:
“Ms Anderson sustained a soft tissue injury to her left shoulder that is complicated by a chronic regional pain [sic].”
On this occasion however Dr Assem assessed for the purposes of lump sum compensation, the cervical spine. He did not explain why he did so, but aggregated 7% WPI to his assessment regarding the left shoulder of 10% WPI.
In his third report of 20 September 2024, Dr Assem provided a history that differed from that he gave in his prior two reports, namely:
“… The impact pinned her against the left side of her body, causing intermediate and significant pain in her neck, left shoulder and upper arm. She also experienced numbness in her left arm and neck, indicating a substantial soft tissue injury…”
As indicated when considering Dr Burrow’s opinions, Dr Burrow stated the obvious fact that Dr Assem had contradicted himself. The further report by Dr Assem of 11 April 2025 I did not find convincing. Dr Assem stated, as noted above, that the mechanism of injury was “consistent with the onset of symptoms involving the cervical spine, particularly as the pain extended into the upper trapezius and posterior scapular region, which are anatomically linked to the cervical structures.”
The difficulty with that explanation is that Dr Assem had specifically negated any involvement of the cervical spine, as no history of such involvement had been given to him on
27 September 2021. Further, the history he took in both that report and the following report of 30 June 2023 was sufficiently detailed to limit the mechanism of injury to “a significant impact over the left biceps and the second impact to the left side of her body and head.”
Dr Assem’s belated attempt on 20 September 2024 to include the neck as part of the mechanism of injury raised the question as to why he simply did not say that the impact of the head also involved the neck. Either way, there was no satisfactory explanation as to why Dr Assem had refuted the suggestion that there had been an injury to the cervical spine in his report of 27 September 2021.
Dr Assem also attempted to explain that Dr Burrow had in his report of 20 February 2023 noted a complaint of pain in the “trapezial region.” Dr Assem noted that this was a distribution commonly associated with cervical spine pathology and went on to say that it was “clinically plausible” that a primary soft tissue injury to the shoulder could have led to a secondary cervical strain through altered movement patterns or compensatory muscle use. The difficulty with this explanation is that it has not been alleged that the cervical spine condition was consequential, and in any event such a possibility had not hitherto been considered by
Dr Assem, and in the circumstances under which the suggestion was made, it has very little probative value.
Dr Assem’s further explanation was that in 2024 Ms Anderson demonstrated objective clinical findings, including markedly reduced cervical range of motion, titubation and muscle guarding. He posited that there was a possibility of “progressive manifestation” even had there been an initial absence of symptoms particularly in cases involving CRPS.
It is not clear whether CRPS is involved in this case, although the Medical Assessor will be asked to consider that possibility with regard to the left shoulder. However the eleventh hour suggestion that it also involves the cervical spine is unconvincing.
As to the inconsistencies that were identified by Dr Burrow, again Dr Assem relied on the presence of CRPS or chronic pain disorder to explain that inconsistencies could present as a result of psychological overlay and neurological sensitisation. Dr Assem said that repeated assessments, “including those by her treating general practitioner, physiotherapist and pain specialist” validated the functional impact of Ms Anderson’s symptoms. Such an opinion is nothing more than an ipse dixit and generalisations such as those employed by Dr Assem do not supply the factual support required for such a sweeping statement.
I found Dr Burrow’s opinions to be preferable. In his report of 20 February 2023 he found there was no evidence ”of a distinct, isolated, structural pathology to the left elbow, arm, shoulder or the cervical spine.” On 1 December 2023 he took a history with specific accent on any cervical involvement. He said:[27]
“The initial trauma was to the medial aspect of the left arm and the elbow and chest. At no point was there a wrenching injury or direct trauma to the neck.”
[27] Reply page 54.
Dr Burrow noted further that there had been no neck symptoms per se and none had been investigated initially. He mentioned the MRI scan taken after the admission to Westmead Hospital and said that the scan was done to exclude radiculopathy as a differential diagnosis. As I have already noted, that too was my view of the probabilities.
For the above reasons I am satisfied that Ms Anderson has failed to establish that the condition of the cervical spine is causally related to the subject injury. I am grateful for the industry demonstrated by the parties in providing the additional submissions regarding the requirement that a sudden or identifiable pathological change be established in order to prove that Ms Anderson suffered a frank injury to her cervical spine. I note the dicta by Armitage CCJ in Castro v State Transit Authority (2000) NSWCC 12 that confirms that proposition. I note too the well-settled principle that a causal connection may be found without any medical evidence at all or where the medical evidence can go no further than to admit that such a causal connection is possible.[28] However there is no principle that complaints alone can establish injury, and with all due respect to Mr Morgan’s submissions, that, in the final analysis was the only basis for the claim.
[28] See EMI Ltd v Bes [1972] NSWLR 238; Fernandez v Tubemakers of Australia [1976] 10 ALR 303; Seltsam Pty Ltd v McGuiness [2000] NSWCA 29.
There is an award or the respondent with respect to the claim for cervical spine compensation.
I accordingly make the above orders.

[2025] NSWPIC 359

29 July 2025