Norouzi v Philip Leong Stores Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Norouzi v Philip Leong Stores Pty Ltd [2025] NSWPIC 52
APPLICANT:	Mohammad Norouzi
RESPONDENT:	Philip Leong Stores Pty Ltd
MEMBER:	Parnel McAdam
DATE OF DECISION:	18 February 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; medical expenses; claim for future treatment (posterior lumbar decompression); respondent had lodged additional forensic medical report in breach of clause 44 of the Workers Compensation Regulation2016; report admitted for the purposes of history; respondent addressed submissions to observations made on examination; those did not constitute matters of history per Waldron v Agrimac International Pty Limited; whether treatment reasonably necessary; Diab v NRMA Ltd; Held – proposed treatment reasonably necessary.
DETERMINATIONS MADE:	The Commission determines: 1. The respondent pay the applicant’s medical expenses pursuant to s 60 of the Workers Compensation Act 1987 associated with the posterior lumbar decompression 1 Level L4-5 as recommended by Dr Diwan plus reasonably necessary ancillary costs. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

The matter in dispute in this case is a relatively straightforward one, of the type that the Personal Injury Commission (Commission) sees regularly and will often resolve via consent. Mr Norouzi is in significant amounts of pain, has had a specific treatment recommended by his treating team, and that treatment has been disputed.
The respondent’s position in this case appears to have been taken on the basis of a few different issues, but primarily Mr Norouzi’s presentation before an independent medical expert, who took a dim view of the reliability of Mr Norouzi.
Mr Norouzi suffered an injury to his lumbar spine on 15 June 2021. Liability for that injury has been accepted, and the respondent continues to pay weekly compensation benefits to Mr Norouzi. Mr Norouzi’s dispute in the Commission concerns a request for lumbar decompression surgery at the L4/5 level as recommended by his treating orthopaedic surgeon (amongst others).

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the surgery recommended by Dr Ashish Diwan, being a posterior lumbar decompression 1 level L4/5 is reasonably necessary pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act).
It is noted and agreed that there is no dispute as to injury, and no dispute that the need for surgery arises as a result of the injury suffered by Mr Norouzi in the course of his employment with the respondent.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

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. The parties undertook brief discussions about resolving the matter, but no resolution was forthcoming.
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.
At the hearing of the matter, Mr Hickey of counsel appeared for the applicant instructed by Turner Freeman Lawyers, and Mr Jones of counsel appeared for the respondent, instructed by BBW Lawyers.

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, and
(b) Reply and attached documents.
During the hearing, the applicant identified that the respondent had relied on two forensic medical reports, in breach of reg 44(1) of the Workers Compensation Regulation 2016 (the 2016 Regulation). The respondent elected to rely on the report of Dr Hitchen, dated 17 June 2024, and the parties agreed that the reports of Dr Rimmer could be admitted only for the purpose of their history, consistent with McCarthy v Patrick Stevedores No 1 Pty Limited [2010] NSWWCCPD 96. I will discuss that point later, as during submissions, it became apparent that the extent of “history” was subject to some interpretation issues.
I will discuss the relevant evidence that the parties took me to during submissions in brief below, and in further detail where relevant in my reasons for decision.

Statements of Mr Norouzi

Mr Norouzi provides three statements in this matter, dated 20 January 2023, 13 April 2023, and 14 November 2024.
The first statement sets out Mr Norouzi’s employment history, including with the respondent as a voice picker, largely in the liquor department. He describes an incident on 15 June 2021, where he was picking wince cases that weight between 7kg and 11kg, when he felt a sharp pain in the lower back. He also describes an incident on 17 June 2021 when he fell from a chair. The statement goes on to describe the treatment received and subsequent progress, including some psychological symptoms.
Mr Norouzi’s second statement deals with a trip he took to Iran in December 2021, first raised in the earlier statement. Mr Norouzi explains why he travelled to Iran (to support his sister, who was suffering from post-traumatic stress disorder) and how he coped with the travel (by taking Gabapentin at an increased dosage and by moving around as much as possible).
Mr Norouzi’s third statement provides a further history of continuing pain and symptomatology, as well as explaining why he obtained a further opinion from Dr Diwan and the ongoing psychological symptoms he experiences.

Reports of Dr Anil Nair

Dr Nair provides a report dated 22 August 2024 as an independent medical expert. The report specifically addresses the surgery requested by Dr Diwan.
Under the heading “physical exam”, Dr Nair notes the following: “He arrived early. He was casually presented. He was cooperative and forthright. There were no inconsistencies.” In this report, Dr Nair considers the initial MRI from 29 June 2021. The 2023 MRI was not available. A series of questions are asked of Dr Nair. On the specific issue before me (reasonably necessary), he provides:
“The proposed surgery is reasonable and necessary and would be accepted by a quorum of spinal surgeons. As Mr Norouzi has had symptoms for over three years, the surgery would be deemed appropriate. I would, however, recommend up-to-date medical imaging prior to performing surgery as the medical imaging is dated.”
Dr Nair provides a further report dated 12 September 2024, following review of the updated MRI report taken in May 2023. He discusses the findings on that MRI report and repeats his above opinion.

Report of Dr Shahzad

Dr Shahzad is an occupational physician. He provides a report on behalf of the applicant dated 16 December 2022. In respect of the duties undertaken by Mr Norouzi, he records:
“Generally, there are four bottles per case (box), weighing approximately 7-11 kgs each.”
Dr Shahzad considers the June 2021 MRI report. He states “It is likely he would require surgery and would be unable to return to work without any further clinical improvement”. At that time, Dr Shahzad’s recommendation for future treatment was “L4/5 decompression and fusion by a spinal surgeon at an approximate cost of 25,000$ including surgeon, theatre and anaesthetist fees.”
Dr Shahzad also provides a report assessing permanent impairment which is not relevant for the present dispute.

Report of Dr Saboor

Dr Saboor is a consultant psychiatrist who provides an opinion concerning Mr Norouzi’s alleged secondary psychological injury on behalf of the applicant. I did not anticipate that the report would have much relevance to the issues in dispute, being injuries of a physical nature, but the respondent provided submissions with reference to Dr Saboor’s opinion and accordingly I have considered it.
Dr Saboor provides a diagnosis of “Adjustment disorder with depressed and anxious mood in partial remission”. He was asked about further treatment. He recommends psychological treatment. He also notes “He should also have some treatment for his back injury”. Given Dr Saboor’s qualifications, this cannot be interpreted to support the specific treatment claimed in a medical sense, but rather that as part of addressing his psychological symptomatology, he would benefit in having some treatment provided in his back.

Reports of Dr Singh

Dr Singh is a treating orthopaedic surgeon. He works at the same practice as Dr Hsu (who’s name also appears on the letterhead to Dr Singh’s reports). Whilst the applicant initially made references to Dr Hsu in his submissions, it was later clarified that these should be taken as references to Dr Singh.
Dr Singh first saw Mr Norouzi on 22 July 2021, around one month after the initial injury. He commences his report with the following:
“Thank you for referring Mr Norouzi who has an acute L4/5 disc injury with herniation resulting in left followed by right leg sciatica which is graded 10/10 on the visual analogue scale.”
He takes a history of initial left leg sciatica, transferring to worse on the right side. He forecasts the potential for surgery very early in the treatment progression of Mr Norouzi:
“Ultimately he may require surgery. Surgery would be an L4/5 decompression and fusion operation. Physical work is likely to accelerate and increase the likelihood of requiring surgery at an earlier date. I do not believe he has any work capacity at this time. I shall review him after 4 to 6 weeks.”
Dr Singh saw Mr Norouzi again on 26 August 2021. He describes Mr Norouzi as being “apprehensive about any intervention and this is reasonable”. He goes on to state:
“The numbness in his leg has improved slightly. He wishes to proceed with surgical treatment and this is reasonable.
Ultimately, this gentleman is likely to require surgery in the form of L4/5 decompression and fusion. However, given his age, he will trial further physiotherapy and he will let me know how he gets on. I shall review him after six weeks”
Based on the preceding sentence noting apprehension about surgery, I take it that there is a typographical error and at this time Mr Norouzi did not wish to proceed with surgical treatment.

Reports of Dr Huang

Dr Huang is a treating neurosurgeon. Mr Norouzi was first seen by Dr Huang on 10 July 2023. Dr Huang took a history of injury consistent with what is reported elsewhere. There is a potential minor discrepancy in the onset of right sided symptoms, which is said to have occurred in February 2022. This does not undermine Dr Huang’s opinion. He records the following observation on examination:
“On examination today Mohammad mobilises with a walking stick into the rooms. There was some tenderness on palpation in the lumbar region with decreased ROM. Power was preserved as was reflexes in both the upper and lower limbs and he does have quite an antalgic gait although tip toe, heel and tandem gait was preserved. He did have a positive tredelenburg test in the left side as well as a positive straight leg raise test in the left.”
At this point, Dr Huang requested a bone SPECT CT be undertaken.
Dr Huang saw Mr Norouzi again on 4 September 2023. He notes that Mr Norouzi mobilises with a walking stick. He recommends treatment being a right L5 cortisone injection:
“We discussed options going forth and it would be reasonable to trial an injection which has a relatively small risk of infection, bleeding, nerve injury, CSF leak or failure, before considering surgical decompression. Given Mohammad's progressive symptoms in his right lower limb and lack of improvement a surgical decompression may eventuate.”
It is noted once again that the possibility of surgical decompression is flagged.

Reports of Dr Diwan

Mr Norouzi obtained a further treatment from Dr Diwan, which he explains in his third statement because he “had heard of a very good surgeon, Dr Ashish Diwan”.
Dr Diwan provides a report dated 2 May 2024. He records that Mr Norouzi injured himself at work in 2021 and has since been struggling with back and leg pain.
He states:
“At the nearly three year mark with spinal deformity and a large disc his surgical options may be spinal fusion or disc replacement. However, given his young age, I think it is reasonable for him to undergo a L4-5 Posterior decompression discectomy.”
This is the claim for future treatment brought to the Commission. A quotation for that procedure is also included on the same date.

Clinical notes from treating general practitioner

There are a series of clinical notes attached to the Application dating back to the initial presentation to Dr Lim on 23 June 2021. Dr Lim records symptomatology at that time of “Sharp shooting pain in lower back radiating down to L) leg, intermittently radiating down R) leg, difficulty sleeping, stressed.”
The clinical records detail Mr Norouzi’s ongoing attendances with his general practitioners, including related to his lumbar spine symptoms and prescriptions in relation to same and his ongoing secondary psychological symptoms.

Report of Dr Hitchen

As discussed above, Dr Hitchen provides a forensic medical report on behalf of the respondent, and this is the report on which the respondent relies. Dr Hitchen describes Mr Norouzi’s injury as an “alleged workplace injury” that occurred on 15 June 2021. He questions the history given by Mr Norouzi of a box weighing 7 to 10kg (which I note is a history consistently given by Nr Norouzi throughout the material) and suggests that “such a box would weight about 4.5kg”. Dr Hitchen also describes surveillance footage which shows Mr Norouzi completing his shift and driving home “without evidence of injury”.
It is apparent that immediately Dr Hitchen had questions about Mr Norouzi’s reliability:
“Mr Norouzi presentation was clearly embellished. He staggered very slowly into the consultation room leaning heavily on his walking stick held in the left hand. His brother assisted him by the arm. When giving his history he sat fairly comfortably in the chair. When it came to formal examination there was again very slow movement and facial grimacing. His brother assisted him up onto the examination couch. There was physical inconsistency, with the lightest of touch through his clothing said to cause lower back pain. This was in contrast to him being seated leading with a similar pressure against the back rest of a chair.”
Dr Hitchen considers the radiology from June 2021 and May 2023, but opines that the changes “could not plausibly be attributed to the events of 2021”. I note causation is not an issue in this dispute. Dr Hitchen’s diagnosis is “He has abnormal illness behaviour with chronic non-specific back pain.” He goes on to suggest that Mr Norouzi has been treated in some way inappropriately or incorrectly:
“No. He has been treated on the presumption he sustained some form of severe disc injury. The first MRI performed soon after the injury showed minor changes at the L4/5 disc that cannot reliably be attributed to his pain. So one can be reassured that the alleged work event did not cause any major damage to the back sufficient to warrant surgery.”
Dr Hitchen suggests that Mr Norouzi is physically fit to work full time with a 15kg lifting restriction. His opinion on treatment is:
“Surgery is not the default position. He does not have a condition that is likely to substantially improve or resolve with an operation, and thus given the low prospect of success it should not be deemed reasonably necessary. That is, one cannot be convinced that the disc anomaly at L4/5 would substantially account for his presentation. He has abnormal illness behaviour, and this will not be solved via the scalpel. He should not have his complaints further medicalised. He should be encouraged into mobility and participation in all activities that he would usually undertake including employment.”
Dr Hitchen suggest that surgery would have poor outcome because the treatment is for “isolated back pain/somatic pain”.

Reports of Dr Rimmer

The reports of Dr Rimmer were admitted only for the purpose of their history and I will only be discussing those aspects of the reports.
During the course of submissions, the respondent’s counsel referred to aspects of Dr Rimmer’s report going to observations made of Mr Norouzi. At that time I questioned whether observations on the day of examination could properly constitute “history” within the narrow confines of how the reports of Dr Rimmer were admitted. I expressed doubt about at that time, but invited the respondent to make submissions that I would consider in the context of what was admitted into evidence.
In submissions in response, the applicant submitted that was the precise caution he expressed about Dr Rimmer’s report, and referred to Waldron v Agrimac International Pty Limited [2016] NSWWCCPD 35 (Waldron). Waldron is a decision of AP Snell, which applies the leading authority on the point of McCarthy v Patrick Stevedores No 1 Pty Limited [2010] NSWWCCPD 96 (McCarthy).
In McCarthy, DP Roche considered the restriction on forensic medical reports contained in cl 43 of the Workers Compensation Regulation 2003. The restriction now contained in cl 44 is of substantially the same terms as appeared in that regulation. DP Roche considered the common law principles, allowing additional forensic medical reports, that would not otherwise be admissible due to the operation of the regulation, to be admitted as witness statements. The reports were admitted for the limited purpose of relying on the histories recorded in them.
At the time Waldron was decided, the operative clause was cl 49 of the Workers Compensation Regulation 2010. Again, it is substantially the same as the present cl 44 of the 2016 Regulation. Waldron bears some similarities to the issues in the present case, in that the respondent sought to rely on observations recorded in reports, made during an examination, relying on McCarthy. This was in the context of those reports being witness statements as opposed to forensic medical reports. AP Snell explained the operative part of McCarthy as this:
“The concept in McCarthy, of admitting such a report as a “witness statement”, is that the report becomes, for the purpose, lay evidence. Evidence from a doctor of what was said by a worker at an examination, both history and complaints, is admissible from the doctor who was present, as it would be from any lay witness who happened to be present and to record it. The report, for that purpose, ceases to be a ‘forensic medical report’ (see McCarthy at [26] and [29]). The evidence of the medical practitioner who is the author of the report becomes the evidence of a lay witness, going to what was said. It is this which places it outside the operation of cl 49.” (at [115])
Aspects of history sought to be relied upon in Waldron included findings on examination. AP Snell described those findings in the following way:
“The above findings, to adopt the language in Miller, involved a judgmental conclusion reasoned from the facts. The primary facts were the levels of movement, sensory function or tenderness observed by the doctor on examination of the patient. These were then expressed by comparing those levels to what was regarded by the doctor as medically normal. This process clearly depended on a level of expertise on the part of the examiner. A level of expertise was clearly necessary in identifying any abnormality (for example, the findings in the trapezius observed by Dr Oates). Conducting the examination was itself a matter requiring medical expertise.” (at [120])
AP Snell’s ultimate conclusion on the admissibility of the reports, for a limited purpose, was expressed as follows:
“The findings on examination of doctors involve the expression by them of expert opinion. The examination could not be appropriately conducted, and resultant conclusions recorded, by a lay witness. The admissibility of the relevant report, as a witness statement describing the history, is dependent on it being a statement of lay evidence. To the extent that the report consists of the expert evidence of a specialist medical practitioner, it falls within the definition of a ‘forensic medical report’ for the purposes of cl 49, and its use for this purpose (if there is more than one such report from the party) is precluded by cl 49(1) of the Regulations.
It follows that, the reports of Dr Oates, Dr Thompson and Dr Powell having been admitted on the restricted basis contemplated in McCarthy, the use which could validly be made of them precluded not only the expressed opinions, but also the findings on examination recorded by those doctors.” (at [122]-[123])

The submissions made by the respondent were in the context of abnormalities observed by Dr Hitchen which the respondent said were “consistent with what Dr Rimmer observes”. The respondent referred to observations made by Dr Rimmer of Mr Norouzi in the waiting room compared with how he presented on formal examination.
Consistent with Waldron, it is clear that those observations are not in the context of “witness statements” as McCarthy contemplates, but medical opinion. A lay witness would be unqualified to comment on inconsistencies in observation of an injured person, much less express an opinion contrasting formal with informal observations. The reports of Dr Rimmer cannot be validly put to the use for which the respondent made those submissions. The extent to which I have considered them is, as agreed between the parties, only to history.
That history is limited, appearing in the reports dated 9 September 2021 and 10 June 2022, and concerns the occurrence of injury on 15 June 2021, resulting in pain radiating to his right leg to calf level with a comment: “on the previous assessment he said the left leg!”. A history of a subsequent event on 17 June 2021, where Mr Norouzi fell off a chair is also recorded.
Dr Rimmer’s third report, dated 1 March 2023, refers to a history of attending Iran for four months on family matters.

Report of Dr Cameron

Dr Cameron provides a report for the respondent in his context as an injury management consultant (IMC). The referral was because “the worker has been identified at risk of delayed recovery”. Dr Cameron takes a consistent history of injury, and refers to an earlier IMC report which I do not have before me.
He provides the following opinion in respect of recommendations for further treatment:
“I rarely agree with Workers Doctors but in this case, I believe Mr Norouzi is totally unfit. He needs to see Dr Diwan ASAP. I explained to him that he would probably want to have a cortisone injection first. In my view, he has deteriorated since I last saw him, and he needs surgery.”

SUBMISSIONS

The parties made oral submissions during the hearing. They were recorded and will not be repeated in full.
The applicant commenced submissions by confirming that the only issue is whether surgery is reasonably necessary. It was noted that injury is not in dispute. The applicant took me through the relevant evidence in a helpful way and I have summarised that evidence above. The applicant submits that Mr Norouzi has a long and substantial history of deterioration of symptoms following his initial injury, he has seen a number of surgeons, and has tried to alleviate those symptoms to no avail. He has very lengthy conservative treatment with no effect, he remains on Gabapentin, and the outcome now recommended was flagged three years earlier.
In respect of the medicolegal opinions, Dr Nair refers to mechanical and radicular symptoms, which was recorded throughout the evidence. The history taken is entirely consistent with the treating evidence, and the proposed operation is aimed at improving his radicular symptoms. Dr Nair opines that the purpose is to alleviate the symptoms. The applicant submitted that the reports of Dr Rimmer should be treated with caution to only consider the true history as recorded in the reports. I have dealt with that submission above.
In respect of the report of Dr Hitchen, the applicant submits that there are immediate problems in the report. Dr Hitchen fixates on a weight that he himself estimates. The real issue with this report is the weight that I can attach to it, to the extent that it borders on advocacy. The applicant criticised the examination section and how the flagrant inconsistencies identify could be accepted. I would have concerns about the opinion expressed.
The applicant referred to Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab), referring to the relevant principles therein, submitting that in each case the requirement is evidenced in this matter.
The respondent identified that their position is that surgery is not reasonably necessary. The respondent’s first of three “cascading” submissions is that the applicant has a secondary psychological condition, and that all of the medical experts who have recommended surgery are ignorant of it or disregarded, other than Dr Hitchen. It would not be necessary to find that the applicant is deliberately feigning those symptoms, but rather it is open to accept that the manifestation of an adjustment disorder is the gross inconsistency observed by Dr Hitchen. On that basis an injection should be trialed and has not proceeded, and the applicant has leapt ahead to a “final fix” or an “ultimate outcome”.
There was some criticism of the applicant’s treating doctors in the sense that everyone has been focused on to “address the pathology” rather than the “overall scheme of things”.
The respondent took me to the report of Dr Saboor which sets out the psychological issues that Mr Norouzi suffers from, and the diagnosis provided.
The respondent referred to the report of Dr Hitchen, stepping through his conclusions. The respondent was critical of Dr Nair’s opinion, describing his history as “exceptionally brief” and his conclusion being an “overly simplistic view in a case as complicated as this”. The same criticism was leveled at the opinion of Dr Shahzad who reaches a conclusion that treatment is appropriate without considering the psychiatric opinion.
The respondent referred to the treating history and the recommendations made that Mr Norouzi undergo an injection as a “step along the way” to the ultimate outcome, being surgery. In terms of Dr Diwan’s ultimate recommendation for surgery, what he doesn’t express or consider is the ongoing pain state and what he is concerned with is the ultimate pathology.
The respondent submits that there is another step in how this case is to be managed, being a trial of injection rather than proceeding immediately to surgery. I would not be satisfied that surgery is the most appropriate course, as there still exists the undoubted psychiatric condition, the applicant’s pain state, and the inconsistent presentation features as the causative factor for the level of disability and pain. To the extent that the applicant says he wants the surgery, the respondent submits that on any view of it he is affected and it’s not one for him to make the ultimate decision, it’s to be guided by the medicine.
The applicant made brief submissions in response. He referred to the report of Dr Saboor who specifically diagnoses a psychological condition secondary to the lower back condition. Dr Saboor goes as far as to recommend treatment for his back injury. The purpose of the surgery is to alleviate pain. In that context it is not surprising that the treating surgeons are not put off by the fact that he has a secondary psychological condition.
The applicant also submitted that if the respondent wanted to bring a case based on the contribution from the applicant’s psychological disorder then that should have been supported by evidence.
In terms of the injection recommended, the applicant indicated that he did not wish to have the injection, and ultimately all doctors in the case other than Dr Hitchen recommended surgery. Dr Hitchen does not say that the injection should be undertaken as a preliminary point and then move to the surgery, he simply says no underlying condition, and he has abnormal illness behaviour. Even if the injection is a potential treatment recommendation, that does not negate the need for surgery, consistent with Diab.

FINDINGS AND REASONS

These proceedings involve a single issue (s 60 of the 1987 Act) and only part of that section, being whether surgery is reasonably necessary. The respondent does not rely on any kind of causation argument, accepting that Mr Norouzi’s need for surgery arises as a result of his injury. This is not a complex case, although the respondent’s submissions suggest otherwise.
The leading authority on the question of “reasonably necessary” is Diab. The respondent’s submissions did not specifically address that case, although in part went to multiple heads of the issues for consideration. Those, consistent with Rose v Health Commission (NSW) (1986) 2 NSWCCR 32, are:
“(a)   the appropriateness of the particular treatment;
(b)     the availability of alternative treatment, and its potential effectiveness;
(c)     the cost of the treatment;
(d)     the actual or potential effectiveness of the treatment, and
(e)     the acceptance by medical experts of the treatment as being appropriate and likely to be effective.” (at [88])
Of course the above heads for consideration do not represent the scope of the test in a statutory sense, they do provide useful guidance. As much was said in Diab at [90]:
“While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia [2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’.”
The applicant has the onus to prove their case. The respondent submits that I would not be satisfied that the treatment claimed is reasonably necessary.
I have summarised the evidence above, including the treating medical opinions and the medicolegal opinions relied on by both parties. There is almost overwhelming evidence in support of a conclusion that the applicant needs surgery. The requirement for surgical intervention has been forecast since shortly after the date of injury. It is no surprise that the applicant now wants to undertake that surgery.
Given that the only opinion that does not suggest Mr Norouzi should have treatment in one form or another is Dr Hitchen, I should deal with that first. The respondent relied on that report in reaching its determination in the s 78 notice and in submissions before me. The applicant raised some criticisms of the basis on which Dr Hitchen had reached his conclusion.
The first point raised by the applicant is that Dr Hitchen strayed into, or close to advocacy in reaching his conclusion. This is based on some commentary in the report, and in particular Dr Hitchen questioning the weight of the box that caused the injury. I tend to agree with the applicant’s dim view of the opinion of Dr Hitchen, as I share it. I am not sure that it treads into the role of an advocate, as opposed to an independent medical expert, but it is clear that Dr Hitchen had significant doubts in respect of the applicant from the outset.
His commentary suggests that the applicant would be mis-estimating the weight of the boxes he would lift: “however such a box would weight about 4.5 kilograms 6x750g”. The respondent suggested that I could take it on judicial notice that a case of wine would weigh that much. I do not accept that assertion which was rejected by the applicant. Clearly a case of wine with six bottles that each weighed 750g would weigh around 4.5kg, give or take the weight of the box. However, there are different wine sizes. There are other types of alcohol including liquor. Mr Norouzi may have lifted two boxes at once on occasion. Importantly, Mr Norouzi has continually and consistently reported the weight of the material he was required to lift as somewhere between 7 and 11kg. There is no contradicting evidence otherwise, only the supposition of Dr Hitchen.
The same reflection of doubt appears when Dr Hitchen questions Mr Norouzi’s veracity in the context of surveillance footage that allegedly showed him to have completed his shift and driven home “without much evidence of injury”. Dr Hitchen also refers to the injury as “an alleged injury” and an “alleged workplace injury”, in spite of this report being prepared after the respondent had accepted liability.
Dr Hitchen goes on to describe Mr Norouzi’s presentation as “clearly embellished”. The general tenor of the opinion Dr Hitchen took of the applicant is dim. He immediately casts doubt over whether an injury occurred at all, then if there was an injury the extent to which affected Mr Norouzi immediately, then questions the weight of the material he was lifting. It is questionable whether any of these issues were put to Mr Norouzi, to obtain an explanation for his appearance, but I doubt that that occurred.
Dr Hitchen’s report also contains some inconsistency. He comments that “It is probable his previous obesity contributed to the somewhat premature changes, although he has now lost weight from 95 to 70kg”, but fails to comment that since his weight loss, his condition has deteriorated. He suggests that Mr Norouzi would be able to work full time with a 15kg lifting limit, which is, in the circumstances of the presentation of the worker on the day, quite frankly ludicrous. It is also wholly inconsistent with all of the treating evidence, as well as the respondent’s continuing payment of weekly payments on a full incapacity basis. All of these issues give me great pause in how I should treat the opinion of Dr Hitchen.
Over and above is the use to which the respondent submits that I should put the report. This concerns Dr Hitchen’s conclusion that Mr Norouzi displayed abnormal illness behaviour, and how that should be viewed in the context of a diagnosis of secondary psychological injury. Dr Hitchen comments “Wel [sic] established abnormal illness behaviour. Suggest forensic psychiatric review.”
The problem with this submission, which represents a large portion of the respondent’s case, is that it is not supported by any medical opinion. Dr Saboor is the only psychiatric expert who has provided an opinion in this case. He provides a diagnosis of an adjustment disorder with depressed and anxious mood in partial remission. His explanation of causation is as follows:
“The pain led to loss of function. He stated that resulted in the development of adjustment disorder with depressed and anxious mood at that time.”
Dr Saboor also opines that Mr Norouzi should have some treatment for his back injury.
It is important to point out that there is no commentary on how Mr Norouzi’s psychological condition affects his presentation before doctors. No opinion has been provided that, for example, his will has been so overborne by his psychological condition that he cannot present in a consistent way before a doctor. There is no diagnosis of a somatoform disorder, but there is an accepted physical injury and an apparently undisputed secondary psychological condition. Further, as I suggested during the hearing, there is a distinct difference between an observation of abnormal illness behaviour observed by an independent medical expert and a psychiatric diagnosis. Whilst I accept it is open for a medical expert to make observations about a worker’s presentation, including inconsistency, it is my role to consider the weight that I should give to any opinion.
I do not find the respondent’s argument or the opinion of Dr Hitchen persuasive. I would also observe that in other circumstances, where there may be some financial benefit to an injured worker, this argument would be more appropriate and convincing. In present circumstances, I find it difficult to believe that an applicant would be inappropriately seeking treatment for any benefit other than to address the physical situation he finds himself in, which, by all accounts, is high levels of pain. It defies logic to suggest that Mr Norouzi would want to undergo an invasive procedure, as recommended, for any gain other than symptomatic (although I acknowledge this was not explicitly suggested by the respondent).
The respondent also suggested that Dr Hitchen provides the only report that has considered Mr Norouzi in a “wholistic way”. I do not agree with this construction of Dr Hitchen’s opinion. He has simply rejected Mr Norouzi entirely, going as far as to suggest he did not have a “significant workplace injury” and providing a diagnosis of “abnormal illness behaviour with chronic non-specific back pain”.
I would also note that this is not a case where a worker has rushed into surgery as a first option. Mr Norouzi was injured over three years ago. He has undertaken significant amounts of conservative treatment, including hydrotherapy and physiotherapy. He has had different treatment modalities recommended over time. He has obtained not one, not two, but three different opinions into the appropriate course of treatment, and has obviously treated the decision to undergo surgery with a great degree of caution.
The respondent’s submissions attempted to characterise Mr Norouzi’s actions in that way, by referring to the “final fix” and the “ultimate outcome”. I did not share that view. The potential for surgery has been on foot since 22 July 2021, when Dr Singh records that “Ultimately he may require surgery. Surgery would be an L4/5 decompression and fusion operation”. The latter is not currently recommended, and this is specifically addressed by Dr Diwan who comments that “However given his young age, I think it is reasonable for him to undergo an L4-5 Posterior decompression discectomy” (i.e. not a fusion).
The respondent also raised the possibility of other treatment modalities, in particular a cortisone injection. This was certainly considered at one stage but was rejected by Mr Norouzi. As Diab provides, that is one aspect for consideration, being the availability of alternative treatment and its potential effectiveness.
This treatment was initially recommended by Dr Huang on 4 September 2023 (that is nearly 18 months ago):
“We discussed options going forth and it would be reasonable to trial an injection which has a relatively small risk of infection, bleeding, nerve injury, CSF leak or failure, before considering surgical decompression. Given Mohammad's progressive symptoms in his right lower limb and lack of improvement a surgical decompression may eventuate.”
This is very close to not being “alternative treatment” but rather a step in the process before Mr Norouzi ultimately requires a decompression. I doubt whether it becomes a relevant consideration, in the Diab sense, on that basis. It appears to be an alternative as a “trial” only, on the basis that it has a smaller risk profile. I do not find that Mr Norouzi’s choice not to undergo that treatment and seek a “final fix”, particularly in circumstances where he has been living with pain for over three years, as sufficient to defeat his claim.
In terms of the other issues in Diab:
(a)    the treatment is accepted as appropriate by all of the medical experts and treaters who have seen Mr Norouzi, other than Dr Hitchen, who comments that “He should not have his complaints further medicalised”. I have commented on the issues I have generally with Dr Hitchen’s report above. In respect of this particular consideration, I prefer the treating opinions provided which have been entirely consistent in that Mr Norouzi will likely need surgery at some point. That point has now eventuated;
(b)    the cost of the treatment is, in the scheme of things, relatively modest. It is more expensive than cortisone injections previously discussed, but they are considered to be an intermediary step. It is less expensive than a fusion, which Dr Diwan considered but recommended against;
(c)    the actual or potential effectiveness of the treatment is supported throughout the medical evidence. Dr Nair addresses this highlighting that Mr Norouzi has radicular symptoms, and the surgery is aimed at improving those symptoms. The respondent was critical of the treating recommendations focussing on Mr Norouzi’s pathology as opposed to taking a wholistic view. I fail to understand this submission. It is the role of a treating surgeon to address pathology. Addressing pathology will likely and hopefully have consequential impacts on Mr Norouzi, including reducing his pain and impacting on his secondary psychological disorder, and
(d)    the acceptance by medical experts cannot be in doubt, given the broad support provided in the evidence from three treating surgeons, two medicolegal experts, and the applicant’s treating general practitioner.

Dr Diwan considers the above and provides a persuasive opinion:
“The recommended surgery is appropriate, effective and is accepted amongst our peers as an option to treat narrowing of the canal at L4-5 in his age group. The alternatives discussed where spinal fusion and disc replacement which do not stack up in terms of cost benefit analysis when compared to the option of decompression surgery alone. Expected health outcomes that your client can expect includes decrease in pain in the leg decrease in his low back pain and potential return to duties in a modified role.”
Dr Diwan expresses his opinion forthrightly: “His surgery is not just reasonably necessary but now more than reasonably essential.” This view is shared by Dr Cameron, who managed to put aside his issues with the applicant’s treating general practitioners, to suggest he see Dr Diwan as soon as possible, and that “he needs surgery”. I agree and accept that that is the case.

SUMMARY

For the reasons given above, I am satisfied that the surgery proposed by Dr Diwan, being a posterior lumbar decompression 1 level L4-5, is reasonably necessary.

[2025] NSWPIC 52

18 February 2025