Davoudi v Douglass Hanly Moir Pathology Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Davoudi v Douglass Hanly Moir Pathology Pty Ltd [2023] NSWPIC 691
APPLICANT:	Nelly Davoudi
RESPONDENT:	Douglass Hanly Moir Pathology Pty Limited
PRINCIPAL MEMBER:	Josephine Bamber
DATE OF DECISION:	22 December 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly compensation and one consultation with a specialist in relation to alleged injuries on 6 May 2022; applicant involved in subsequent motor accident on 8 June 2022; respondent accepts injury to lumbar spine but arguing its effects have ceased; respondent disputes injury to cervical spine, shoulders and secondary psychological condition; Held – award for the respondent in relation to allegations of injury to the cervical spine, bilateral shoulders and secondary psychological condition; claim made under section 60 for a consultation with Dr Darwish is reasonably necessary; respondent is to pay the applicant weekly compensation pursuant to section 37.
DETERMINATIONS MADE:	The Commission determines: 1. Award for the respondent in relation to allegations of injury to the cervical spine, bilateral shoulders and secondary psychological condition on 6 May 2022. 2. The effects of the lumbar spine injury agreed to have been sustained in the course of employment on 6 May 2022 have not ceased. 3. The claim made under s 60 of the Workers Compensation Act 1987 for a consultation with Dr Darwish is reasonably necessary as a result of the work injury on 6 May 2022. 4. The respondent is to pay the applicant weekly compensation from 8 November 2022 to date and continuing pursuant to s 37 of the Workers Compensation Act 1987 at the rate of $595.39 per week. 5. medical expenses on production of accounts and/or receipts.

STATEMENT OF REASONS

BACKGROUND

Ms Nelly Davoudi, the applicant, worked for the respondent, Douglas Hanly Moir Pathology Pty Limited as a blood collector on a part time basis. She was also studying part-time in relation to a Bachelor of Psychology degree. On 6 May 2022 she moved a large chair from her workspace for a patient to sit on when she alleges she sustained injury to various parts of her body. The respondent has accepted she sustained injury to her lumbar spine but denies she sustained injury to her cervical spine (neck) and shoulders. It also denies she has sustained a secondary psychological condition.
The matter is somewhat complicated by the fact that Ms Davoudi was involved in a motor vehicle accident on 8 June 2022.
In her Application to Resolve a Dispute (ARD) she seeks weekly compensation from 8 November 2022 on an ongoing basis pursuant to s 37 of the Workers Compensation Act 1987 (1987 Act), citing that her pre-injury average weekly earnings (PIAWE) is $595.39. However, this is the 80% rate taken from the PIAWE of $744.24. The applicant also seeks treatment expenses of $350 for a referral to Dr Darwish.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

This matter proceeded in arbitration hearing before Member Churches on 29 May 2023. At that time Mr Jarryd Malouf, counsel, instructed by Andrew Joy, solicitor, appeared for Ms Davoudi and Mr Tom Grimes, counsel, instructed by Stephanie Dunn, solicitor, appeared for the respondent.
Ms Davoudi’s counsel made oral submissions, and the respondent made partial oral submissions and completed his submissions with written submissions dated 9 June 2023. Ms Davoudi’s counsel filed written submissions in reply dated 14 June 2023.
Member Churches subsequently became unwell and died. He was not able to deliver a determination in this matter. On 19 July 2023 the Workers Compensation Division Head caused an email to be sent to both parties to advise them that Member Churches was unable to complete the matter and sought their agreement to the matter being allocated to another Member to determine the matter. On 20 July 2023 Mr Joy wrote to the Personal Injury Commission (Commission) to advise that the parties agreed to another Member determining the matter, stating it was not necessary for that Member to hold a telephone conference with the parties.
The matter was subsequently allocated to me. I have read the documents filed in the matter, listed below. I have also listened to the sound recording from 29 May 2023. I am satisfied I have sufficient material to determine the matter “on the papers”.
I am also satisfied that the parties have had sufficient opportunity since to explore settlement as it is apparent 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)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents dated 18 May 2023 filed by the applicant (AALD-A);
(d)    Application to Admit Late Documents dated 19 May 2023 filed by the respondent (AALD-R);
(e)    written submissions filed by the respondent dated 9 June 2023, and
(f)    written submissions filed by the applicant dated 14 June 2023.
Sound recording of the oral submissions on 29 May 2023.

Oral evidence

There was no oral evidence.

FINDINGS AND REASONS

Ms Davoudi’s statements

Ms Davoudi relies on five statements. She is aged 29, having been born in Iran and coming to Australia when she was about three years of age. She completed year 12 of high school and has completed a Certificate III in Pathology and a Diploma in Childcare Education. She was studying a Bachelor of Psychology at Western Sydney University and expected to complete this degree at the end of 2022. In 2004 she was diagnosed with depression and anxiety and confirms that once the stressors were removed she no longer experienced those symptoms. At the time she was treated by a psychologist. She states she does not recall having any back, shoulder or neck pain before commencing work with the respondent.
She says she has had a number of casual jobs including waitressing, uber driving, retail assisting and childcare support.
In 2020 she commenced employment with the respondent as a blood collector working 28 hours per week.
On 6 May 2022 she says she attempted to move a very large chair out of her workspace for a patient to sit on. She states whilst manoeuvring the chair she experienced a sharp and shooting sensation in her lower back which radiated down both of her legs and up towards her neck and bilateral shoulders. She says at [19] of her first statement that she quickly sat down and waited for the spasms to subside. She adds “However, I was unable to move and both of my shoulders and legs, neck and lower back because they were so tender and sore”. She told her supervisor and sent him the incident reports and he told her to go home and rest.
She says on 10 May 2022 she attempted to return to work but could not make it past 10.30am because the pain in her back had intensified causing constant spasms throughout her lower back, bilateral legs, bilateral shoulders and neck. She says she consulted her general practitioner, Dr Nicholas Harvey at Auburn Health Centre because her regular doctor, Dr Malahat Bagherian, had no availability.
On 19 May 2022 she underwent a CT scan of her lower back.
On 27 May 2022 she underwent an MRI scan of her lower back.
Ms Davoudi says she had further treatment with Dr Harvey and she told him she still had chronic pain to her lower back with shooting pains down her legs. At [24] she says she told Dr Harvey that her neck and shoulders remained painful. She says she was told to rest and take pain medication.
Ms Davoudi says she commenced to consult Dr Bagherian and she sent her for an MRI scan of her neck and ultrasound of her left shoulder, which were undertaken on 10 and 11 June 2022. She says she still had intermittent pain and restriction to her neck and both shoulders. On 20 June 2022 she underwent an ultrasound of her right shoulder and commenced physiotherapy with Joseph Lee. At [28] she describes experiencing excruciating pain in her low back and she could not complete the physiotherapy session and she was taken by ambulance to Concord Repatriation Hospital where she remained for three days.
She describes changing doctors as Dr Bagherian did not want to deal with the workers compensation process and so she saw Dr Bishoy Marcus on 22 August 2022 who referred her to a physiotherapy clinic at Rhodes and to a neurosurgeon. She says she consulted the physiotherapist, Davis, for her lower back, neck, bilateral shoulder and leg pain.
On 15 November 2022 she received a cortisone injection to her back.
In her first statement dated 30 November 2022 Ms Davoudi sets out her symptoms at that time and lists her disabilities. In her supplementary statement of the same date, she repeats her disabilities and responds to the insurer’s s78 notice, with which she disagrees. Much of this statement is really amounting to submissions rather than an evidentiary statement, which is not a helpful approach. However, she asserts that Dr Wallace only took eight minutes to examine her and the only measuring device he used in examining her was a tape measure.
She adds that when she saw Dr Marcus and “Davis” she told them every time that her neck and shoulders hurt and were stiff. She says she could barely turn her head. She says she had never suffered from neck or shoulder problems before the work injury, so she made sure she discussed the symptoms with these practitioners as she did not know how to treat such issues. At [18] she seems to accept that she did not initially mention pain in her bilateral shoulders in her first consultation with Dr Marcus, but she says she consistently reported ongoing pain in most of her visits.
At [23] she states her view that she does not have the capacity to return to her workplace and describes the role of a blood collector. She says she no longer has the ability to concentrate to manage the meticulous tasks involved. She says since her injury she loses focus easily and her attention span is now very low, and she is very forgetful, and her memory is always clouded. At [24] she says her focus is now entirely directed to her constant pain in her lower back, neck and shoulders. She says she cannot sit or stand for prolonged periods due to the pain and she needs to be able to lie down freely to minimize her low back pain. She also sets out her psychological symptoms at [25]. She says she does not think she could return to work in her condition at that time.
In neither of these statements dated 30 November 2022 does she refer to her involvement in the motor vehicle accident on 8 June 2022.
In her statement dated 21 February 2023 she again details her disabilities. She refers to the motor vehicle accident that she was involved in on 9 November 2021 [sic, ?8 June 2022] and says at [11] that prior to this accident she could not carry heavy pots or groceries due to debilitating pains in her lower back. She adds she could not bend over to put on her pants, and she was struggling to lift her arms to put on shirts due to the sharp pain in her neck and shoulders. She says the motor accident had no impact on her physical injuries, as she felt the same level of pain.
In this statement she also describes again her psychological symptoms from the work injury and says at [16] that the motor accident triggered a completely different set of psychological symptoms as she says the motor accident was done on purpose and she was scared the perpetrator would come to her house and she was diagnosed with post-traumatic stress disorder.
Notwithstanding Ms Davoudi is only 29 years of age, she considers she would struggle in all forms of employment due to the combination of her physical and psychological symptoms.
Ms Davoudi has also included in her ARD a statement she gave to the motor vehicle insurer’s investigator dated 16 August 2022. She refers at [8] to the motor vehicle accident occurring on 8 June 2022. In her last statement she corrects the reference at [18] where she refers to the motor accident occurring on 9 November 2021, stating the correct date is 8 June 2022.
She states she was driving to her doctors in Hassell Grove when the motor accident occurred. She describes the accident as involving her changing lanes to her right in front of a white Isuzu truck with plenty of room to do so. However, the truck collided with the rear of her car in what she regarded as road rage, which caused her to be scared and so she pulled her vehicle off the road to her left and telephoned the police. She describes the truck driver approaching her vehicle threatening her. She drove to Merrylands Police Station and reported the incident however she says her back pain got worse, and they had to call an ambulance to convey her to Westmead Hospital, where she was treated and released that day.
She says at [28] her back issues have nothing to do with her CTP claim and are pre-existing. She says she was shaken up in this incident and she is now scared to drive on the road. She suffers ringing in her ears, hot flushes and she has constant nightmares and chest pain, and she has no confidence in herself, and she is “not the same person I was”. She says she has been seeing Nick Chesrie, psychologist for her issues and she has been diagnosed with post-traumatic stress disorder with symptoms of depression and anxiety.
In her last statement dated 1 May 2023 she addresses inconsistencies in her earlier statements.[1] At [7] she refers to minor errors in the CTP statement. She says, “due to these errors, I did not sign the MVA statement supplied by the insurer because I did not trust that the information was correct especially after such simple things were wrong.” However, the only errors she points out are the date of the motor accident, spelling of her name, her date of birth and licence plate number.
[1] AALD-A p1.
In the CTP statement she states at [14] “other than my back I was seeing my doctor about, my personal health at the time was good.” I find it is significant that she does not correct this version. I find the impression she was giving the motor vehicle insurer was that she only had a back issue before the motor accident. She does not mention her neck, shoulders or psychological symptoms.
On 14 June 2022 Ms Davoudi completed her CTP claim form.[2] She describes her injuries as “chest pain, fear for my life, trembling and shaking constantly, night terrors, hot flushes, ringing in the ears, no courage to do things anymore, panic attacks.” She said she did not suffer from a similar illness or injury at the time of the accident. On 29 June 2022 the CTP insurer accepted her claim.[3]
[2] AALD-R p51.
[3] AALD-R p 23.

Incident report

In the incident report signed by Ms Davoudi on 6 May 2022 she describes moving the chair. She only refers to having sustained back pain and identifies the bodily location as “lower back”.[4] She states she had severe back pain “moving onto her legs”. She states the back pain occurred a few minutes after she moved a big chair from her room into the waiting room.
[4] Reply p 1.

Treating medical evidence

On 10 May 2022 Dr Nicholas Harvey has recorded that Ms Davoudi had to lift and carry a large chair a short distance when she had low back pain for several minutes, then low back stiffness and she went home three hours later.[5] He records that she said she was very stiff in her low back the next morning when she got out of bed. She went back into work but could not stay. Dr Harvey recorded his examination findings “R leg- pain on elevation to 45 degrees; L leg-pain on elevation 60 degrees; full power both legs; pain in both legs & lower back on flexing knees”. His assessment was she had an acute back sprain. He prescribed analgesics and rest. Dr Harvey issued a WorkCover NSW – certificate of capacity which only refers to low back sprain.[6]
[5] Reply p 76.
[6] ARD p 111 and Reply p 102.
On 17 May 2022 Ms Davoudi saw Dr Harvey again when she was still complaining of lower back pain and stiffness on examination, she was sore over her SI joints and same results as previously. Further consultations were conducted on 19 and 24 May 2022. In the latter consultation Ms Davoudi told the doctor she had increased pain radiating up her back to her shoulders and down the back of her legs. The doctor’s assessment was still low back strain.[7] His medical certificates of 17[8] and 24 May 2022[9] also only referred to low back sprain.
[7] Reply p 77.
[8] ARD p 108.
[9] ARD p 106.
On 19 May 2022 the radiologist Dr Chan report the results of the CT Lumbosacral spine scan. His conclusion was “sacralised L5 vertebral body which can be a source of mechanical type-like symptoms. Minor disc bulges L3/4 and L4/5 but without neural impingement.”[10]
[10] ARD p 90.
On 27 May 2022 radiologist Dr Lam reported on the lumbar spine MRI scan.[11] His conclusion was there was a partially sacralised L5 vertebral body with rudimentary L5/S1 disc. At L4/5 there was moderate disc degeneration with a right paracentral disc extrusion extending slightly posterior to the L5 vertebral body resulting in impingement of the right L5 nerve root within the lateral recess. He recommended a nerve root block or epidural injection for diagnostic purposes and potentially therapeutic purposes.
[11] ARD p 91.
On 1 June 2022 she complained to Dr Harvey of pain radiating up her spine to her neck, to left trapezius and then down left arm with the left hand feeling numb. The doctor notes “objective: pain on moving L shoulder”.[12] He added that an MRI scan revealed bulging at L4/5 disc.
[12] Reply p 78.
On 10 June 2022 the left ultrasound report was issued referring to no rotator cuff or tendinosis.[13]
[13] ARD p 93.
On 15 June 2022 Dr Bagherian referred Ms Davoudi to Precision Physio noting she developed pain in both shoulders, upper back and lower back.[14] He noted the cervical MRI scan was normal.
[14] ARD p 136.
On 11 June 2022 the MRI cervical scan was performed at the request of Dr Bagherian.[15] It showed no abnormality. The history was “injury, neck pain with bilateral upper limb pain.”
[15] ARD p 94.
On 20 June 2022 the ultrasound of the right shoulder was performed finding subacromial bursitis.[16]
[16] ARD p 173.
On 20 June 2022 Cheul Yui (Joseph) Lee, physiotherapist from Precision Physio, recorded in his assessment notes that a few minutes after Ms Davoudi moved the chair at work she had shooting pain started at the back and followed by pins and needles at the neck and back and down both legs and arms. He also takes the history she had bladder and bowel incontinence one week later. Mr Lee suspected cauda equina compromise.
Ms Davoudi completed a client information sheet which refers to “lower back/upper back, shoulder”.[17] On the form relating to medical history she has ticked yes to suffering from the following:
[17] ARD p 131.
“If you are seeking treatment for low back pain or leg pain, do you have any:
numbness or tingling in her buttock or genital region?
bowel and bladder problems?
pain, swelling and redness in other joints?
eye discomfort, watery eyes, eye pain with light?
Balance problems?
Do you get leg pain that is caused by walking & relieved by resting?
Is your back stiff in the morning for longer than half an hour?
If you are seeking treatment for neck or arm pain, do you have any:
Weakness in your arm/s?
Balance problems?
Altered sensation in both hands?
Altered sensation in both feet?
Episodes of:
Blurred/double vision
Dizziness/vertigo
Drop attacks (sudden loss of power)
Nausea”[18]
[18] ARD p 132.
She also indicated that she sometimes has skin rashes and blackouts. So concerned was Mr Lee that he sent Ms Davoudi to the emergency department and wrote to Dr Bagherian to inform him.[19]
[19] ARD p 135.
Mr Lee records another session on 29 June 2022. He notes he wishes to see the MRI scan. In an email of the same date to the insurer he states that her symptoms are much greater than the signs and it seems like she is catastrophizing the pain in her back. Mr Lee says he could not perform a thorough physical examination which is mainly limited by her high level of pain. He said his treatment has been directed towards education about movement is not causing any damage and it is good to recover at work. Mr Lee says he has spoken to the employer and rehab consultant, Natalie, who is thinking about providing Ms Davoudi with alternative job roles which only require sedentary to light work.[20] On 1 July 2022 he notes Ms Davoudi telephoned to say she felt they mocked her, and she was going to see another physiotherapist.[21]
[20] ARD p 124.
[21] ARD p 123.

On 20 June 2022 Dr Daniel David from Priority Medical Centre, Harris Park, issued a medical certificate about the motor vehicle claim certifying she has no current capacity for any work from due to psychological symptoms. A factor affecting her recovery was cited as “constant recalling of traumatic events”.[22]
[22] AALD-R p 27.
On 20 June 2022 Ms Davoudi was admitted to Concord Repatriation General Hospital for a couple of days with the presenting problem as “acute on chronic back pain ? discogenic disease”.[23] Detailed notes are recorded about her symptoms that her back pain was “associated with migraine-like headaches, occasional tinnitus, photosensitivity, groin paresthesia, bowel + bladder changes (urgency) and occasional dysuria.” Her CT and MRI scans were considered, and the examination findings recorded. It is stated her neurological examination:
“…was mostly limited by pain in the lower limbs with altered sensation that is inconsistent with any clear dermatomal distribution, also inconsistently report by the patient. No clear objective signs of neurological impairment seen. No convincing features of UMN lesion/SCC impingement (patient is not hyper-reflexic, anal tone intact). Examination not convincing for a peripheral neuropathy.”[24]
She had been admitted under the care of Dr Kane, rheumatologist, and the hospital ceased her Tramadol and commenced her on simple analgesics and metsal heat rub.
[23] ARD p 125.
[24] ARD p 127.
On 24 June 2022 Dr Bagherian from Hassall Grove issued a medical certificate referring to the work incident moving the chair but in his description of injury he states she “suddenly felt severe pain in her lower back and upper back and neck and shoulder area”.[25] In the section of the form relating to factors affecting recovery he has written “anxiety and reactive depression due to pain and inability to move without pain, feels isolated”. He makes no reference to the motor vehicle accident.[26]
[25] ARD p 102 and Reply p 112.
[26] Reply p 145.
On 28 June 2022 Dr Daniel David, Priority Medical Centre, gave Ms Davoudi a referral to Nick Cherrie advising she had mood symptoms for the past 10 days following her involvement in the motor vehicle accident.[27] On 8 July 2022 Mr Cherrie completed an Allied Health Recovery Request for the CTP claim he includes in his list of her symptoms depression and anhedonia, very poor sleep and anxiety during driving and in social settings.[28] In the section dealing with capacity he mentions that she was off work due to an unrelated injury. He notes her studies have suffered due to anxiety, she has very poor sleep, lack of motivation for self-care and future planning, nil leisure, partly due to back injury and partly due to anxiety and avoiding driving due to anxiety. The CTP insurer approved treatment with a psychologist and psychiatrist.
[27] AALD-R p 29.
[28] AALD-R pp 109- 113.
On 8 July 2022 Ms Davoudi attended a consultation with Logic Lounge Psychology where Nick Cherrie practices. He has written the diagnosis “PTSD? Anxiety, Unrelated back injury”.[29] On 22 July 2022 another entry includes the reference to “back injury not really recovering”.[30]
[29] ARD p 186 and Reply p 135.
[30] ARD p 187 and Reply p 136.
On 22 July 2022 Dr Bagherian issued another medical certificate about the work incident in the same terms as previously.[31] Again he makes no reference to the motor vehicle accident.
[31] ARD p 99 and Reply p 112.
On 27 July 2022 and 19 August 2022 Dr Seyed Ahmad Mirmohammed Hosseini (aka Dr Mir) from Priority Medical Centre[32] issued medical certificates with the same certification as previously. On 19 August 2022 Dr Mir referred Ms Davoudi to Dr Rastogi for management of her anxiety and PTSD.[33]
[32] AALD-R pp 12, 19.
[33] AALD-R p 22.
On 28 July 2022 Dr Bagherian referred Ms Davoudi to Nick Cherrie referring to the injury at work two months ago and:
“…due to the severity of pain and discomfort she started to feel very depressed and anxious. She is currently quite depressed as she is not sure about her future and her pain is not settling down. She can hardly move or do her household duties and is quite dependent on her husband.”[34]
[34] AALD-R p 107.
On 16 August 2022 the Logic Lounge Psychology records state “injured back at work… preventing her from doing things”.[35]
[35] ARD p 188 and Reply p 137.
On 26 August 2022 Ms Davoudi attended on Dr Bishoy Marcus at Edmondson Park he records the history:
“Patient was trying to lift a heavy chair to relocate it from her room to the waiting area during the course of her normal duties at work when she felt pain in her back and was going down into her leg. Subsequently developed shoulder pain and due to chronicity of injury has developed reactive generalised anxiety and depression symptoms.”[36]
He makes no mention of the motor vehicle accident.
[36] Reply p 120.
Dr Marcus provided a report dated 12 September 2022.[37] He is a consultant family physician who states that Ms Davoudi present to him on 22 August 2022 in relation to her work injury. He states she only complained to him about her lumbar spine and right shoulder, she did not mention her left shoulder or cervical spine. Dr Marcus also advised that she presented with symptoms secondary to reactive anxiety and depression secondary to her injury. He expressed an opinion that she seemed to have nerve root impingement and needed to consult a neurosurgeon. He does not mention the motor accident in this report. On 17 November 2022 Dr Marcus provided a further report he says in his initial consultation Ms Davoudi did not mention her left shoulder or cervical however, she did in subsequent consultations.[38] He says he concurs with Dr Gehr’s report about causation, that her problems are the work-related injury.
[37] Reply p 63.
[38] ARD p 87.
Dr Marcus has clinical notes in the Myhealth Liverpool practice where he saw her on 22 August 2022 in which he notes his examination findings particularly of the lumbar spine. In relation to the neck, he states no signs of neck pain or neurology notes. His diagnosis after performing various tests that she had right shoulder subacromial bursitis. He does not examine the left shoulder. He notes she has poor mental health consistent with anxiety/ depression. He adds he is aware in the last month or so she had her car ram raided and has an ongoing CTP claim and sees a psychologist for that and he states he has given a referral to the same psychologist.[39] On the same day he issued a referral to Integrated Sports Physiotherapy to manage her right subacromial bursitis and right L4/5 disc bulge with impingement.[40] A referral was also issued to Nick Cherrie to manage her anxiety/depression secondary to her workplace accident.[41]
[39] ARD p 140.
[40] ARD p 149.
[41] ARD p 154.
On 20 September 2022 Dr Marcus records detailed notes about his review of Ms Davoudi.[42] She was struggling with her mental health and her uni work. Referrals were given to Professor Mark Sheridan[43] and Dr Balsam Darwish,[44] as well as for a CT guided right L4/5 perineural cortisone injection due to L4/5 irritation/impingement clinically and on MRI for diagnostic/therapeutic purposes.
[42] ARD p 146.
[43] ARD p 161.
[44] ARD p 162.
On 21 October 2022 Mr Davis Chun Fung Ng provided a report about physiotherapy treatment he gave to Ms Davoudi. He said she reported symptoms over her neck, bilateral shoulders and lumbar spine. He said it is crucial to note that during the sessions she reported severe pain despite the light pressure. He attributed this to her increased sensitivity to pain.[45]
[45] ARD p 86.
On 30 August 2022 the Logic Lounge Psychology records refer to having difficulty leaving the house, she does not want to drive. Reference is also made to her back pain and that she cannot bend over, and it affects her sleep.[46]
[46] ARD p 189 and Reply p 138.
On 10 October and 7 December 2022, she attended Logic Lounge Psychology it is noted her pain is very severe, affecting her ability to concentrate/work and she is worried about having an injection.[47]
[47] ARD pp 190-191 and Reply pp 139-140.
On 9 February 2023 Nick Cherrie sent an email to Alison Mareco at Allianz Australia Insurance Ltd, the CTP insurer, and explains that when Ms Davoudi first presented to their clinic it was unclear if she was there for the workcover claim of CTP claim. He says, “she stated it was for the CTP”. He adds, “All of my treatment for her has been chiefly focused on the trauma of her traffic accident and the resultant psychological distress.”[48]
[48] Reply p 20.
On 2 February 2023 Dr Marcus issued a medical certificate certifying no current work capacity from 22 January 2023 to 2 March 2023.[49] This relates to the diagnosis of the work-related injuries of “right subacromial bursitis, right L4/5 disc bulge with foraminal narrowing on right leading to impingement, reactive generalised anxiety disorder and major depression-pending liability”.
[49] ARD p 119.

Dr Schiff

Dr Barbara Schiff provided an Injury Management Consultant (IMC) report to the insurer dated 4 July 2022.[50] Dr Schiff refers the insurer to an independent medical examiner to provide an opinion about diagnosis and causation of injury as she says this is outside her role as an IMC. She says Ms Davoudi stated she had complaints of lower back, both shoulders, right leg more than left leg, general body aches, psychological issues in relation to chronic pain. She says based on her presentation that day to Dr Schiff Ms Davoudi was unfit to work. She noted that she had a significant pain focus and maladaptive pain behaviours and her complaints exceeding the radiology findings. Dr Schiff records that Ms Davoudi is studying psychology and will complete the course by the end of 2022. She states that an active clinical examination was barely able to be performed because of the nature of her presentation. She states the lack of any real mobility on the shoulders was not in keeping with the pathology.
[50] Reply p 49.
Dr Schiff has an extensive list of Ms Davoudi’s current problems including being unable to walk, do household duties, feed her dog, walk her dog, move from sit to stand, unable to drive, unable to shower or dress, essentially bedridden and pain on her lower back with radiation upwards and down towards her toes.
Dr Schiff noted inconsistencies in her presentation which she sets out in considerable detail at page 14 of her report.[51] These led the doctor to conclude that she had emotional overlay and abnormal pain behaviours. For instance, passive movements were exacerbated by hyper responses to the lightest touch and her gait changed in its presentation as she walked.
[51] ARD p 82 and Reply p 61.
The motor accident was not described to Dr Schiff.

Dr Wallace

Dr Wallace, orthopaedic surgeon, provided a medico-legal report for the respondent dated 16 September 2022.[52] He refers to her history of sustaining a lumbar injury when moving a large chair at work. He adds that she also claims to have noted the onset of pain at her cervical spine radiating to both shoulders at the time of this work incident. He gives the opinion that she sustained a musculoligamentous strain of her lumbar spine which has now resolved and an aggravation of pre-existing degenerative disc disease at L4/5 which has also resolved. He says the mechanism of injury, dragging a heavy chair is not consistent with being the cause of any significant lumbar spinal pathology. He says there were no signs of radiculopathy at the time of his examination. He states she exhibited significant pain behaviour and there were inconsistent clinical findings with significant discrepancy on straight leg raising in the supine and sitting positions.
[52] Reply p 34.
Dr Wallace opines that there is no objective evidence that she suffered any injury to her cervical spine or bilateral shoulders. Because he finds the work- related injury has resolved, he finds no incapacity for employment from the work- related injury to her lumbar spine.
Dr Wallace provided a supplementary report dated 8 May 2023 without a further examination of Ms Davoudi. He refers to her having the left shoulder ultrasound two days after the motor accident, which showed no significant abnormality. He also notes she underwent an MRI scan of the cervical spine on 11 June 2022, which was three days after the motor vehicle accident, and he says it showed no abnormality. He also records that she underwent the right shoulder ultrasound on 20 June 2022 which he said also revealed no abnormality.[53]
[53] AALD-R p 3.
Dr Wallace states he maintains his view that the neck and shoulders were not related to the workplace injury on 6 May 2022. He finds that it is highly likely that Ms Davoudi’s lumbar spine condition was aggravated by the subsequent motor accident and that accident was the cause of a musculoligamentous strain of her neck with pain radiating to her shoulders. He referred to the fact that she did not undergo investigations in relation to these body parts until after the motor vehicle accident. Dr Wallace states that Ms Davoudi would have sustained a back injury as a result of the motor accident even if she had not suffered her work injury.
He maintains his view that the work injury to her lumbar spine was a minor injury that has resolved.

Dr Grama

Dr Grama, psychiatrist, provided a medico-legal report to the insurer dated 28 September 2022.[54] Despite taking a detailed history from Ms Davoudi, it appears Dr Grama was not told about the motor accident. In answer to question 8 he states “Ms Davoudi did not report, and I am not aware of any non-work-related factors that might be contributing to her psychiatric condition or affecting her recovery”. He noted that Ms Davoudi considered pain from her physical injuries was the main barrier preventing her return to work. He states in light of Dr Wallace’s opinion he considered he expected her emotion disturbance will terminate.
[54] Reply p 24.

Dr Saboor

Dr Assad Saboor is a psychiatrist who has provided a medico-legal report for Ms Davoudi’s solicitors dated 21 October 2022.[55] He notes a history of the work incident involving her low back when lifting the chair and that she also experienced neck and shoulder pain. While the doctor has a history of her past psychiatric history he writes “she denied having had any psychosocial stressors around this period of time and any non-work- related stressors or problems in her life that could have contributed to her current presentation.” However, he has no history of the motor accident.
[55] ARD p 64.
Dr Saboor thought at that time she was totally incapacitated for work. He recommended she see a neurosurgeon and a pain management specialist.
In a supplementary report dated 9 March 2023, Dr Saboor comments on documents that he was sent, noting she had a car accident on 9 November 2021 and 8 June 2022. He says based on the notes from her psychologist she presented with symptoms of post-traumatic stress disorder after the car accident and secondary psychological injury due to pain. He said considering these records he was of the opinion that her current work capacity is predominantly due to her physical injury causing pain in combination with her secondary psychological injury and her post-traumatic stress disorder due to the car accident.

Dr Gehr

Dr Gehr, orthopaedic surgeon, has provided several medico-legal reports on behalf of Ms Davoudi. In his first report dated 27 September 2022 he lists the documents referred to him which do not appear to include Dr Harvey’s records. He records that Ms Davoudi informed him of the motor vehicle accident, which did not affect her injuries from the workplace incident with the chair. He found no pain behaviours or exaggerations. He noted she could not walk on her toes or squat. On examination he found positive impingement in both shoulders.
Dr Gehr records that Ms Davoudi complained of paracervical neck pain and on examination her found evidence of guarding and hyper paresthesia at C5-6 on the right side. He also diagnosed lumbar spine discogenic pain with guarding, dysmetria and positive nerve tension test in her lower limbs.
At that time Dr Gehr stated that Ms Davoudi was not fit to return to normal duties. He recommended she see a neurosurgeon due to the pathology at L4/5, persistence of her symptoms.
In the subsequent report dated 21 November 2022,[56] Dr Gehr answers a series of questions and adheres to his earlier opinion. He disagrees with Dr Wallace’s conclusions particularly that moving the chair would not be sufficient to cause significant lumbar pathology. He explains that sometimes the forces may not be huge, but injury can occur particularly dragging a heavy chair in an awkward manner. He states she said she lifted it, pulled it and pushed it and so he says multiple forces would have been involved. Dr Gehr also comments that at her age one would not expect to see degenerative changes in the lumbar spine until a person’s mid 30s or 40s. So, he opines that changes on the MRI scan are not degenerative. However, he does agree with Dr Wallace that there were no signs of radiculopathy. But he says he did not find evidence that her back injury had resolved.
[56] ARD p 56.
In relation to Dr Wallace’s opinion that Ms Davoudi did not injure her cervical spine or shoulders, he relies on her statement and evidence of the physiotherapist and treating doctor. He said lifting a heavy chair could cause such injuries.
A further supplementary report dated 27 February 2023 was provided by Dr Gehr.[57] He was sent the statement of Ms Davoudi about the motor accident and supplementary statement from her and he adheres to his view, relying on her evidence, that she did not sustain any physical injury in that accident.
[57] ARD p 61.
Dr Gehr’s final supplementary report is dated 13 May 2023.[58] In this report he acknowledges that it has been corrected that the motor accident occurred one month after the work accident. He says the only explanation he has for no investigations being conducted in regard to the cervical spine and shoulders was maybe she did not have a chance to do so. In any event, he maintains his earlier expressed views.
[58] AALD-A p 3.

Applicant’s oral submissions

Oral submissions were made by the applicant’s counsel. He noted that the respondent accepts there was a lumbar injury on 6 May 2022, but it submits that the effects of the injury have ceased. Counsel submitted that the respondent’s position seems to be that the insurer’s evidence accepts there was a psychological injury, however that it may have ceased.
Ms Davoudi’s counsel also recorded that the respondent has disputed the claimed injuries to the neck and left and right shoulder injuries.
It was submitted that the respondent has not put on evidence that Ms Davoudi has capacity to work and so it is argued should she establish the claimed injuries were sustained in the course of her employment on 6 May 2022, there should be a full award for weekly compensation entered in favour of Ms Davoudi.
Counsel relied on Ms Davoudi’s statements describing the injury at work with the chair and that she does assert she told Dr Harvey of neck and shoulder symptoms. Counsel conceded that the medical records do not refer to neck and shoulder pain until after the motor accident. However, in his later written submissions counsel does refer to some medical records before the motor accident making mention of symptoms beyond than to just the lumbar spine.
Counsel submitted that the pathology evident in the lumbar spine is relevant to the determination as to whether the effects of the lumbar spine injury have ceased. It was submitted that Dr Wallace does not engage with this evidence nor with Ms Davoudi’s statements specifically that part dealing with Dr Wallace’s appointment. Her evidence is that while her low back is her main injury, she says she told her doctors about the other claimed body parts.
In terms of her capacity for employment, counsel submits that Dr Saboor supports the proposition that Ms Davoudi cannot work due to her psychological symptoms. It was submitted that the respondent does not have evidence to the effect that all her psychological symptoms are due to the motor vehicle accident.

In relation to the motor vehicle accident, it was submitted that her evidence should be accepted that her symptoms after the work injury did not change after the motor accident. And that the physical forces of the motor vehicle accident were slight, a low speed accident. It was submitted that the fact when she was at the police station after the motor vehicle accident and experienced increased back pain, does not mean that was due to the motor accident as she was already experiencing back pain before the accident.
It was submitted that the histories she has given to the treating doctors is consistent with her statements. Counsel went through the treating medical evidence, which I have summarised above.
Ms Davoudi’s counsel relies on the opinions expressed by Dr Gehr in his reports which can be summarised as:
(a)    that in the work incident she sustained injury to her lumbar spine, shoulders and her neck;
(b)    the motor vehicle accident was not the cause of her injuries or affected her work injuries;
(c)    he finds the lumbar injury was not a simple back strain due to the pathology found on the scans;
(d)    that Ms Davoudi cannot return to her employment, and
(e)    he disagrees with Dr Wallace’s opinion.
In relation to the psychological injury, counsel referred to Dr Saboor’s opinion that she has developed a psychological injury as a result of her work-related back injury. She was unfit to return to work at the time the doctor examined her. Counsel relies on the opinion that her current work incapacity is mostly due her work related physical injuries and secondary psychological injury and she also suffers post-traumatic stress disorder from the motor accident.
Dr Grama agrees there is a secondary psychological injury in the nature of an adjustment disorder. It was argued that the height of Dr Grama’s opinion is that when physical injuries cease the psychological symptoms should cease but that Dr Grama does not actually say she no longer suffers from a work-related psychological condition.
Counsel addressed the opinion of Dr Wallace and called it strange, that the doctor found a minor lumbar strain which had resolved. He submits that the Commission cannot accept this because before and after this time Ms Davoudi was still getting treatment for her lumbar spine. It was submitted if it was found the lumbar spine is an ongoing issue, then it is appropriate to find the secondary psychological condition is ongoing.
It was submitted that Dr Wallace’s further report when he finds that the motor vehicle accident is more likely to have given rise to a whiplash type injury. Counsel submits there is no evidence to support this and it is contrary to Ms Davoudi’s statements.
In relation to incapacity, counsel seeks a full award as he submits that there is no positive evidence that she can get back to work. An award is also sought for s 60 expenses.

Respondent’s oral submissions

The respondent submitted that the applicant’s submissions are based upon Ms Davoudi being a creditable witness. It was submitted that Ms Davoudi’s first statement makes no reference to the motor vehicle evidence and that her list of disabilities from the work incident includes many psychological symptoms and so it is relevant that she does not disclose the impact of the motor vehicle accident on her psyche. Her statement includes such symptoms as nightmares and waking frequently in the night.
It is submitted that only in her third statement does she refer to the motor accident and she tries to differentiate the psychological symptoms triggered by the motor vehicle accident as opposed to after her work injury. Counsel called this statement self-serving.
It is submitted that her counsel has not referred to any psychological symptoms being experienced before the motor vehicle accident in the medical records. Also, it was submitted that as the work injury only occurred one month before the motor accident you would not expect her to have been suffering an adjustment disorder before the time of the motor accident.
It was submitted that the first mention of psychological symptoms is the referral to Nick Cherrie which refers to her having psychological injury due to the motor vehicle accident 10 days earlier. The record of the psychologist on 8 July 2022 only has a history of the motor vehicle accident. There is a history of an unrelated back injury but no history of secondary psychological symptoms from the back injury.
Counsel submits that the next psychological session also does not disclose secondary symptoms due to the work injury. But nightmares are referred to and that she does not like to drive. It is submitted that these records support the argument that her psychological symptoms result from the motor vehicle accident.
The certificates of capacity issued by Dr Mir relate to the motor vehicle accident referring to psychological trauma, adjustment disorder, exacerbation of anxiety and depression. Counsel submits that no pre-existing factors were given about the work accident. He also submits that it is relevant that Dr Mir certified Ms Davoudi as unfit for employment from 20 July 2022 to 19 August 2022 and a factor delaying recovery was the constant recalling of traumatic events. It was submitted at the same time another certificate of capacity was issued by a different doctor at a different practice referring to the work injury and including reactive depression and it the motor accident is not disclosed. It was submitted that these two certificates are dated the same day and so she has gone to two different medical practices on the same day and each do not have a history about the other incident.
It is submitted not only has Ms Davoudi in her first two statements failed to disclose the motor accident and she has gone to different doctors on the same day for the motor accident and to the other the work accident. It is submitted that she cannot be accepted.
It is submitted the referral to Nick Cherrie from Dr Bagherian does not mention the motor vehicle accident in this referral.
Attention was drawn to her statement to the CTP insurer, that other than her back her health was good before the motor accident. It was argued that it was significant that she did not disclose to them any pre-existing secondary psychological condition. It is submitted that Ms Davoudi is telling the respective insurer’s different information and that she cannot be accepted.
In relation to Dr Grama’s report it was before Ms Davoudi has provided her statement disclosing the motor vehicle accident but after her first two statements where no such disclosure was made. Dr Grama has no reference to the motor accident at all. It was submitted that even though Dr Grama accepts the applicant he did so without having a correct history. It is submitted that in such circumstance Ms Davoudi cannot rely upon the doctor’s opinions. It was noted that the doctor states that she only related her psychological symptoms to her back and shoulder pain. It was submitted that the motor vehicle accident was threatening by her own accounts, reported to the police and concerning which she had significant treatment. Therefore, it was submitted that it is a significant omission to fail to tell Dr Grama of the motor accident.
Counsel referred to Dr Saboor’s report and submitted it also shows a failure to Ms Davoudi disclosing the motor accident and denied any non-work related stressors.
It was also submitted that the contemporaneous treating evidence does not reveal any psychological symptoms before the motor accident yet the notes after the motor accident do include references to psychological complaints. It is submitted that this affects her credit not only about the secondary psychological injury claim but her credit is affected in relation to her alleged physical injuries.
Counsel contrasted the pleading about the work injury in the ARD form when compared to the history in the incident report. In the incident report she does not refer to immediate onset of severe pain in the neck and shoulders and no mention of the sharp and shooting sensation radiating up to her neck. Counsel submitted that the first doctor, Dr Harvey, she consulted has no history of neck or shoulder injury. It was also submitted that this doctor sent her for investigations of her lumbar spine and that if she had the pain she alleges in the neck and shoulders it is a reasonable inference she would have been sent for investigations at the same time and she was not.
The respondent’s submissions could not be completed orally due to time constraints.

Respondent’s written submissions

The respondent’s counsel has provided written submissions dated 9 June 2023. He refers to the oral submissions made by him relating to the credit of the applicant, providing inconsistent histories as to the secondary psychological injury and the delay in reporting any symptoms, apart from the back, until after the unrelated motor vehicle accident.
The respondent seeks for the Commission to find an award for the respondent in respect of the alleged injuries to the applicant’s neck, left and right shoulders and the secondary psychological conditions. He also submits there should be an award for the respondent in respect of the claim for weekly compensation and medical expenses.
In relation to the allegation of injury to the neck, the respondent refers to cases which deal with the proposition that because memory becomes fallible over time, contemporaneous records are valuable to the decision maker. Counsel sets out the following evidence to support his submission that the contemporaneous evidence does not support a finding that Ms Davoudi did sustain an injury to her neck on 6 May 2022:
(a)    the incident report does not refer to neck pain or injury;
(b)    the clinical notes from the Auburn Health Care Medical Centre does not mention the neck on 17 May 2022 and 24 May 2022;
(c)    there were radiological investigations of the back but none for the neck until after the motor accident on 8 June 2022, noting an MRI scan was performed on 11 June 2022;
(d)    Dr Wallace is of the opinion Ms Davoudi did not injure her neck in the work incident due to lack of objective evidence;
(e)    Dr Wallace considered that Ms Davoudi sustained a musculoligamentous strain in her neck in the motor accident with referred pain to her shoulders and this is consistent with a whiplash type injury;
(f)    Dr Marcus’s referral to Dr Sheridan dated 20 September 2022 does not refer to the neck;
(g)    Dr Gehr’s report dated 27 September 2022 contains no history of injury to the neck under the heading “history of accident”, and
(h)    Dr Gehr provides no explanation for the delay in reporting the neck injury.
In relation to the alleged injury to the right and shoulder, counsel makes the same submissions as set out above in relation to the lack of mention of shoulder symptoms and investigations until after the motor vehicle accident.
Counsel submits that Ms Davoudi is exaggerating her symptoms and lists evidence he says supports this conclusion such as the ultrasound of the left shoulder and the MRI of the neck did not reveal any concerning pathology and Dr Wallace also found no abnormality on ultrasound of the right shoulder. Dr Schiff’s report dated 4 July 2022 sets out that doctor’s opinion that Ms Davoudi exhibits significant catastrophising of pain throughout her body, inconsistent with the radiological findings. Active clinical examination was barely able to be performed by Dr Schiff due to her presentation. Dr Wallace also found she exhibited pain behaviour and had significant inconsistency such as with straight leg raising between the supine and sitting positions and the doctor found she was voluntarily exaggerating her symptoms.
In relation to the issue of incapacity, counsel submits Ms Davoudi suffers no incapacity due to the alleged injury because it disputes the existence of injury to the neck and shoulders and the secondary psychological condition. It submits that Dr Wallace’s opinion should be accepted that her lumbar spine injury was a minor strain injury which has resolved. It also relied upon his opinion that Ms Davoudi has no current work incapacity due to any work related injury to her spine and shoulders.
Counsel refers to the fact that Ms Davoudi in her statement dated 30 November 2022 says she was currently studying a Bachelor of Psychology and expects to complete this at the end of 2022 and this is also the history recorded by Dr Schiff and to the CTP insurer. It is argued that there is no evidence that she has ceased studying or has had difficulties due to the alleged injury. The respondent submits that therefore, she has demonstrated capacity to complete at least sedentary duties.
Furthermore, it is submitted that because Ms Davoudi after the motor accident told the police her back pain had become worse and they had to call her an ambulance is a factor to suggest the effect of the motor accident was more significant than alleged by her.
The respondent submits in view of these points, Dr Gehr’s opinion about her capacity for employment caused by the work related injury should not be accepted. In addition, it submits Dr Gehr does not assist the Commission to determine what work duties are suitable employment. Finally it is submitted that Dr Saboor’s opinion does not support a finding about her capacity due to the alleged psychological injury because the doctor’s opinion is unreliable because he did not have a history about the motor accident nor does he provide a specific opinion that the psychological symptoms are the cause of any incapacity.
The respondent seeks for the Commission to make an award for the respondent in respect of injury to the neck, shoulders, and secondary psychological injury claims and to also enter an award for the respondent in respect of the claims for weekly compensation and medical expenses.

Applicant’s written submissions

Ms Davoudi’s counsel rejects the respondent’s submissions relying heavily on Ms Davoudi’s statements that she did injure all the claimed body parts in the work incident moving the chair. At [8] he submits it is her evidence that she did tell Dr Harvey about her neck and shoulders but he offered no treatment for these and she then started to consult Dr Bagherian who conducted investigations for her neck and shoulders.
Counsel refers to Ms Davoudi’s contention of the short time of Dr Wallace’s appointment of eight minutes and that he only used a tape measure.
He relies on Ms Davoudi’s evidence of her physical state before the motor accident and that the motor accident did not cause any physical injuries. He submits that her statement given to the motor accident insurer should be accepted as true because it was given completely independent of the workers compensation case and at [20] he argues it would have been contrary to her interest not too advise the motor accident insurer of any physical injuries if they had been sustained in the motor accident. He adds that in this statement at [22] Ms Davoudi describes the impact of the motor accident as a slight bump which pushed her vehicle forward slightly. He also relies upon her statement that her back pain is due to the work accident and has worsened over time, as well as her evidence distinguishing the psychological effects of the work injury and that caused by the motor accident.
Counsel submits that the respondent’s submissions are in error because they assert that Ms Davoudi did not complain about any other body part excepting her lumbar spine before after the work accident on 6 May 2022 and before the motor accident on 8 June 2022. Counsel draws attention to the entry in the clinical notes of pain radiating to Ms Davoudi’s shoulders recorded on 24 May 2022 and on 1 June 2022 to pain radiating to the neck, left trapezius and arm with pain moving her left shoulder.
Counsel sets out from [27] to [43] other treating evidence supporting the relationship of the symptoms in the neck and shoulders to the work accident. I have not reproduced this part of the submissions because I have already summarised the treating medical evidence above. Caution needs to be exercised with some of this evidence because while the doctors did relate various symptoms to the work accident not all of them had a history of the motor vehicle accident. Furthermore, at [40] when counsel refers to the medical certificates he only does so in the context of them certifying no capacity for employment rather than summarising the diagnosis recorded on the certificates.
Ms Davoudi’s counsel relied on the opinion expressed by Dr Gehr in his various reports that the work accident caused injury not only to the low back but to the neck and shoulders. He disagrees with Dr Wallace that the effects of the work related back injury has ceased and relies on the findings of the MRI scan to assert the back injury was not just a strain.
Counsel submitted that Dr Saboor supports the claim that Ms Davoudi sustained a secondary psychological condition as a result of the physical injuries she sustained in the work accident and that she is incapacitated for employment. Reliance is also placed on Dr Saboor’s report dated 9 March 2023 that the motor accident caused a different psychological diagnosis.
In respect to the respondent’s medical evidence, counsel submitted that Dr Grama has the same diagnosis as Dr Saboor, that Ms Davoudi suffers an adjustment disorder as a result of the work place injury. It is submitted that Dr Grama did not actually find the effects of the work related secondary psychological condition has ceased, even though he anticipated it would if the back pain ceased. It is submitted that Dr Wallace’s opinion that the back injury has ceased was made without any reasoning being provided and is not a persuasive opinion. Counsel points to his failure to engage with the pathology found on the MRI scan of the lumbar spine.
It is submitted that when determining Ms Davoudi’s capacity for employment the opinions of Dr Marcus, Dr Gehr and Dr Saboor ought to be accepted.
An award is sought in favour of the applicant in respect of injuries to the neck and both shoulders and secondary psychological injury and an award for the payment of weekly compensations in the sum of $744.24 from 8 November 2022 onwards and an award for the applicant for medical expenses as claimed.

Determination

I find there is need to approach this matter with caution because of the conflicting accounts given by Ms Davoudi. I find it is very significant that in the incident report she completed on the day of the work incident she only refers to her having sustained back pain and identifies the bodily locations as “lower back”. The fact that she refers to the pain moving onto her legs suggests to me that she gave some thought to filling out the form by providing this detail. This indicated she was advising that her back pain was affecting her legs. I find if she had also been symptomatic in her neck and shoulders it is more likely than not on the balance of probabilities that she would have listed these areas on this form.
In addition, Ms Davoudi saw Dr Harvey four days later. He has quite a detailed account that she experienced low back pain and then stiffness and she went home three hours later after the incident at work with the chair. He records that she said she was very stiff in her low back the next morning. The fact that the doctor has recorded such details suggests to me that his recording of his examination of her was not cursory and I find that it is more likely than not on the balance of probabilities that had she complained of cervical or shoulder symptoms Dr Harvey would have recorded it. To support this conclusion, I note that Dr Harvey has detailed examination findings about her back and legs, which I have set out at [37] above. Dr Harvey found she had an acute back sprain. He issued a WorkCover certificate of capacity which only refers to the back sprain. Again I consider had the doctor been told by Ms Davoudi that she had injured her neck and shoulders he would have recorded it on such an official document such as the medical certificate.

Ms Davoudi saw Dr Harvey again on 17 and 19 May 2022 at which time he does not record anything about her neck and shoulders. On 24 May 2022 Ms Davoudi told Dr Harvey that she had increased pain radiating up her back to her shoulders and down the back of her legs. I find it is significant that the doctor still regarded Ms Davoudi as suffering from a low back strain. Just because a person complains of pain radiating up her back to her shoulders does not mean she has a shoulder injury, clearly Dr Harvey did not think so.
I find it is evident that Dr Harvey took his role as her treating doctor seriously because as I have mentioned he has detailed records, but also because he did order investigations of her lumbar spine. The CT scan and MRI were conducted on 19 May 2022 and 27 May 2022 respectively, with the later suggesting a right paracentral disc extrusion extending slight posterior to the L5 vertebral body resulting in impingement f the right L5 nerve root.
On 1 June 2022 Dr Harvey does record Ms Davoudi complaining of pain radiating up her spine to her neck, to the left trapezius and down the left arm and the doctor records an objective finding of pain on moving the left shoulder. This entry provides added support for the proposition that if Ms Davoudi had injured her neck and shoulders on 6 May 2022 and told Dr Harvey of that he would have recorded such complaints, because clearly the doctor did record these complaints. I find it hard to accept the implication of Ms Davoudi’s statement that the doctor was somehow dismissive of her complaints when he had initiated investigations of her lumbar spine.
Because I have found that Ms Davoudi did not include in her investigation report or tell Dr Harvey of a neck and bilateral shoulder injuries occurring on 6 May 2022, I find this raises a serious doubt as to whether she did in fact injure these body parts in the work incident.
I have significant concerns that Ms Davoudi is not a reliable witness because of such omissions coupled with the fact that she appears to have told the CTP insurer in her motor vehicle claim that apart from the back injury her health was good before the motor accident. She does not mention having had a neck or shoulder injuries.
I accept that there is insufficient evidence to find that she sustained physical injuries in the motor accident and I do not accept any such suggestion by Dr Wallace. However, it is very troubling that if she in fact had been suffering psychological symptoms before the car accident due to her work related low back injury that she did not disclose this to the CTP insurer. Ms Davoudi’s suggestions in her statements that she has suffered two different psychological injuries has to be treated with caution because she is not an expert. Also, as the respondent submitted there is no record before the motor accident of her suffering such symptoms. I find had she been suffering psychological symptoms and told Dr Harvey of them it is more likely than not he would have recorded them.
A troubling account given by Ms Davoudi is that given to the physiotherapist Mr Lee. Not only does he take the history that a few minutes after she moved the chair she had shooting pain in the back, she told him it was followed by pins and needles at the neck and back and down both legs and arms. This is certainly a more florid account than she gave to Dr Harvey. I have set out at [47] above all the symptoms that she ticked yes to on Mr Lee’s questionnaire. This presentation is totally inconsistent with that to Dr Harvey and caused Mr Lee so much concern that he had her admitted to Concord Hospital.
I find the Concord Hospital records very significant because she was admitted under a rheumatologist, so it is the first specialist consideration of her presentation. The discharge report was completed by the rheumatology registrar on behalf of Dr Kane and at [51] I have set out the findings that her neurological examination “was mostly limited by pain in the lower limbs with altered sensation that is inconsistent with any clear dermatomal distribution, also inconsistently report by the patient. No clear objective signs of neurological impairment seen…” I also consider it significant that the hospital ceased her Tramadol medication and commenced her on simple analgesics. I find that this assessment of Ms Davoudi belies that she has genuinely suffered the extent of symptoms she complains of and provides further evidence to treat her accounts with caution.
Dr Gehr has not commented on Dr Harvey’s records or these Concord Hospital records. They are included in Ms Davoudi’s ARD. While I do not accept Dr Wallace’s opinion that the effects of the lumbar injury have resolved and I accept Ms Davoudi’s counsel’s submission that Dr Wallace has not engaged with the pathology of the lumbar spine shown on the MRI, I have difficulty accepting all of Dr Gehr’s opinion because he has not considered such important records.
The other concern I have is Ms Davoudi states she had a cortisone injection to her back on 15 November 2022 yet Dr Gehr’s examination of her was on 27 September 2022 and all his later reports were not done with examination of her. Dr Saboor, Dr Grama, Dr Wallace, and Dr Schiff all examined her before November 2022. An injection to her back was suggested by the radiologist who performed the lumbar MRI scan for diagnostic and possibly therapeutic purposes and so a report following that injection would have been useful to consider the diagnosis. Ms Davoudi recounts in her statement dated 30 November 2022 that she still experiences the back pain. At [35] she refers to constant tingling and spasming in her low back, with pain radiating up her back into her neck and both shoulders and down into her legs. Interestingly, Dr Gehr stated there were no signs of radiculopathy on his examination.
Mr Fung physiotherapist also reported in October 2022 that during his sessions Ms Davoudi reported severe pain despite light pressure. He attributed this to increased sensitivity but he does not seem to know about the findings of Concord Hospital. Dr Schiff also reported considerable inconsistencies in her presentation and abnormal pain behaviours.
For Ms Davoudi who is now only 29 to consider herself not to be able to work is of concern. Mr Lee her first physiotherapist expressed the view she was catastrophizing the pain in her back and suggested to her it would be good to recover at work, unfortunately Ms Davoudi ceased treatment at this practice.
It is also concerning, as was submitted by the respondent, that her medical certificates for the motor accident and work accident issued at the same time in June 2022 do not refer to each other incident and she seems to have been to different medical practices for each. On 20 June 2022 Dr David certified she had no current capacity to work due to the motor vehicle accident due to her psychological symptoms such as constant recalling of traumatic events. Yet this was at the same time when she complained of such severe symptoms to Mr Lee that he caused her to be admitted to Concord Hospital.
Another point of concern raised by the respondent was that Mr Cherrie, who was providing psychological treatments, writes on 8 July 2022 the diagnosis of post-traumatic stress disorder, anxiety and records “unrelated back injury”. While he records later that month that the back injury is not really recovering he writes to the insurer on 9 February 2023 “All of my treatment for her has been chiefly focused on the trauma of her traffic accident and the resultant psychological distress.” It is also of concern that Ms Davoudi did not tell Dr Saboor or Dr Grama about the car accident and the treatment from Mr Cherrie in relation to the same. I find this reinforces my view that she is an unreliable witness.
The difficulty in a case such as this is that the treating practitioners and medico-legal specialists are highly dependent on the histories given by the worker. None of those treating Ms Davoudi after Dr Harvey seem to have an awareness of his initial clinical notes or her own incident report. Nor does Dr Gehr refer to them.
Ms Davoudi has the onus of proof. In relation to the onus of proof in Nguyen v Cosmopolitan Homes (NSW) Pty Limited[59] McDougall J stated at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[59] [2008] NSWCA 246, Nguyen.
Because of the inconsistencies in Ms Davoudi’s case, and relying on Dr Harvey’s records and Ms Davoudi’s incident report in particular, I do not feel an actual persuasion that she did in fact sustain an injury to her neck and shoulders in the work incident on 6 May 2022. I do however accept that her low back injury has not ceased. The pathology did reveal some impingement. As to whether she has proved she has a secondary psychological condition because of the back injury is a difficult issue to resolve. I have found she is not a reliable witness particularly as she seems to have been selective as what she tells the many practitioners she has seen. Mr Cherrie’s correspondence to the insurer support that his treatment has been focused on the effects of the psychological injury sustained in the motor accident.
I find I cannot rely on Dr Grama’s conclusions because he was not told about the motor accident. Dr Saboor was also not informed by Ms Davoudi about the motor accident and she actually denied any non-work related stressors. Given her significant psychological symptoms that she complained of following the car accident, I find this is extremely troubling for her to give this account to Dr Saboor and certainly affects her credit. Dr Saboor in a supplementary report says he has considered further documents and he relies on the records of the psychologist to find that her work capacity is predominantly due to her physical injury causing pain in combination with her secondary psychological injury and her post-traumatic stress disorder from the car accident. This report was given without any further consultation with Ms Davoudi and it is not clear if Dr Saboor was aware of Mr Cherrie’s letter to the insurer that his treatment was focused on the effects of the motor accident. Because of this I find I cannot have confidence in the views he has expressed. I am not satisfied that Ms Davoudi has discharged her onus of proof in relation to establishing a secondary psychological injury as a result of her back injury.
In relation to the claims for compensation made in the proceedings in relation to s 60 of $350 to have a consultation with Dr Darwish, I find this is reasonably necessary treatment. Ms Davoudi requires to be examined by a neurosurgeon who has access to all the records to provide an opinion about Ms Davoudi’s ongoing treatment and hopefully to assist in some rehabilitation to enable her to return to some work.
In relation to her claim for weekly compensation, it would have been of assistance if evidence had been placed before the Commission about her studies and if she completed her psychology degree. As I have mentioned it also would have been desirable for a specialist to have examined her after she had the cortisone injection on 15 November 2022 to advise whether it assisted the diagnosis. Dr Marcus advises in his report dated 17 November 2022 that it is too early to see if the CT lumbar injection has been efficacious or not.[60]
[60] ARD p 89.
Dr Marcus has provided the most recent medical certificate finding Ms Davoudi has no current capacity for employment. This relates to the lumbar injury but also psychological symptoms and right shoulder bursitis. Even though the doctor’s certification does include matters concerning which I have found that Ms Davoudi has not discharged her onus of proof in relation to the issue of “injury”, I find nonetheless her lumbar injury is causing her capacity for employment to be affected. The MRI scan revealed some impingement at L5 although
Dr Gehr did not find radiculopathy.
Ms Davoudi was only working 28 hours per week at the time of the work injury and notwithstanding the concerns I have expressed about the evidence, including her tendency to exaggerate, I find that Ms Davoudi does not have the capacity to return to her pre-injury employment due to her persisting lumbar injury. The respondent did not make any submissions in the alternative to relying on Dr Wallace’s opinion, which I have not accepted. With a degree of reservation, I nonetheless accept Dr Marcus’s certification that she has no current work capacity. Even though he includes the right shoulder and psychological symptoms on his most recent certificate, I accept it is the effects of the lumbar injury which have caused incapacity. Accordingly, I make an award in her favour pursuant to s 37 at 80% of her PIAWE in the amount of $595.39 per week from 8 November 2022 to date and continuing.

[2023] NSWPIC 691

22 December 2023