1. Mr Borvayeh's oral evidence was that he swore by almighty God that in Iran, he never had any back pain, is irreconcilable with the history recorded in the clinical records of his treating practitioners;

1. Mr Borvayeh's oral evidence that 2018 was the best days of his life, was contradicted by the clinical records indicating that in 2018, he was suffering from severe lower back pain, post-traumatic stress disorder, depression and was not sleeping well. He was also being prescribed significant medications for these conditions at the time;

1. In cross examination, Mr Borvayeh was unable to indicate when in the period from 2017 to 2019, he worked at Roy Pizza in Brunswick for a period of four to eight weeks. The TAC submitted that he should have been able to do better than that broad time period;

1. Mr Borvayeh's evidence was regularly evasive or non-responsive. His evidence was unreliable in every respect; 2. The photographs produced to the Tribunal by Mr Borvayeh have an unknown providence. Their probative value is low. The TAC asked Mr Borvayeh for the metadata of the digital photographs, but Mr Borvayeh has never produced it; and 3. The purpose for which Mr Borvayeh produced the photographs, to indicate that he was fit, well and healthy before the transport accident is also contrary to the medical evidence prior to the accident.
2. The Tribunal is satisfied that Mr Borvayeh was a particularly unreliable historian as to his pre transport accident symptoms of the injury to his lower back and his mental/psychiatric injury. While it is accepted that health professionals may on occasion make an error or include an assumption about a patient's history, symptoms or treatment in their clinical notes, or a patient may not always provide the same history to a health practitioner due to what condition is pre-eminent in their minds or for some other legitimate reason, in this case the contradictions are far more significant. The inconsistencies between Mr Borvayeh's evidence and the clinical notes are fundamental in many ways, including whether he continued to suffer lower back pain after 2016, the treatment he received and the medical history he provided. On a number of matters, there is a consistency of description of symptoms, history and medications in the clinical notes of different health practitioners prior to the transport accident, which would indicate that the practitioners were not in error, when recording the history and current symptoms being provided by Mr Borvayeh. It is clearly the evidence of Mr Borvayeh which is incorrect about these inconsistencies.
3. While his lack of memory of other matters, such as dates of employment and names of employers who employed him for short periods, was of far less significance.

DID THE TRANSPORT ACCIDENT AGGRAVATE OR EXACERBATE THE PRE-EXISTING LUMBER SPINE CONDITIONS

1. Mr Borvayeh's description of the transport accident was that he was driving on a road with a speed limit of 40 km/hr. As he approached a speed bump, he slowed, and his car was struck with great force from behind. The other vehicle had been travelling at high speed and lost control. It collided with a parked car and then spun and again struck Mr Borvayeh's car. Mr Borvayeh immediately experienced severe back pain and shortness of breath. He was taken by ambulance to Northern Hospital and admitted. The next day, he discharged himself from hospital, however when the medication wore off, he experienced severe pain and returned to Northern Hospital for further treatment. Mr Borvayeh described that over time, he has experienced numbness and pain in his right leg and urinary issues.
2. As discussed above, Mr Borvayeh described ongoing lower back symptoms from the transport accident, which he has indicated have impacted on his daily life and wellbeing and have had financial, employment, personal and emotional consequences, see [21] above.
3. The TAC submitted that it relied upon the opinion of Dr Joseph Slesenger, Specialist Occupational Physician, in medico-legal reports dated 27 June 2021, 8 July 2021 and 22 July 2022. Further, the TAC submitted that:

1. Dr Slesenger's evidence was cogent, considered and not challenged by Mr Borvayeh; 2. He had given Mr Borvayeh the benefit of the doubt by finding that there had been an aggravation of the injury to the lumbar spine. He found that the injury had resolved a short time after the motor vehicle accident; 3. Dr Slesenger in his first report expresses concerns regarding the accuracy of the history provided by Mr Borvayeh. He was then provided with additional materials to reach an opinion; 4. Dr Baglar, Mr Borvayeh's GP after the transport accident, did not commence treating Mr Borvayeh until a couple of weeks after the accident; 5. The applicant's case was not assisted by the medical reports of Dr Al-Sharifi, his previous GP, Dr Woodgate, his pain management specialist, Dr Tahir, his rheumatologist, or Dr Hooper, his psychologist. No doctor who treated Mr Borvayeh prior to the transport accident, has provided a medical report or clinical notes which support Mr Borvayeh's evidence of his condition prior to the transport accident; 6. Mr Borvayeh in his oral evidence admitted not telling Dr Baglar about his past history. He stated that he did not think he needed to; 7. Dr Baglar's medical report, dated 6 June 2022, stated that Dr Baglar was unaware of any pre-existing condition prior to receiving the 'questionnaire'. He said that Mr Borvayeh never mentioned that he had severe neck and low back problems prior to the transport accident. For a person to be admitted to hospital due to pain arising from degenerative changes, his condition must have been well advanced. Dr Tahir supported Mr Borvayeh's application for Centrelink and council assistance with home help. Dr Baglar understood from this that Mr Borvayeh was so disabled prior to the motor vehicle accident that he was unable to perform any cleaning activities. Dr Baglar stated that he was not denying the impact of the accident on Mr Borvayeh's life, however, it is very obvious that he was already severely disabled prior to the accident. Mr Borvayeh was not known to Dr Baglar prior to the accident, so he did not witness the level of his pre-existing disability firsthand. It is therefore impossible for Dr Baglar to estimate the actual contribution of the transport accident on his life; 8. The TAC submitted that if in June 2022, it was impossible for Dr Baglar, Mr Borvayeh's GP, to estimate any contribution of the transport accident to any aggravation, it was therefore impossible for the Tribunal to do so. This is particularly due to the misguided and, at times, dishonest evidence of Mr Borvayeh; 9. Only by undertaking a before and after analysis could any findings be made in this case. There is no indication in the evidence of radiological changes and Dr Slesenger's evidence was that there were no objective signs of injury; 10. The TAC summarised the long history set out in the clinical notes from the Lorne St clinic, where Dr Al-Sharifi was Mr Borvayeh's GP. The clinical notes indicate that over the period from 2016 to 2020, Mr Borvayeh regularly complained of severe back pain, requested stronger medication for this back pain including Endone, was prescribed Tramadol throughout the period and on occasion Lyrica and Mobic and, was referred to a rheumatologist, an orthopaedic surgeon and a pain management specialist; 11. The chronology in the clinical notes indicates that in the period from 2016 to 2020, Mr Borvayeh made constant complaints about severe lower back pain and received significant medication and referrals to other practitioners regarding this pain; 12. The clinical notes are supported by the medical reports of other practitioners. Dr Hooper, Mr Borvayeh's psychologist, stated in her report, dated 7 June 2017, that since Mr Borvayeh's integration into the community following his period in immigration detention, his condition has not improved as he was not initially allowed to work or study and since being granted the right to work, his physical health has not enabled him to do so. He reported severe back pain which fluctuated in intensity and had a detrimental impact on his lifestyle and functioning. Mr Borvayeh expressed to Dr Hooper frustration at not being able to work and get on with his life. The TAC submitted that this report records Mr Borvayeh telling his psychologist that his physical health prevented him from doing any work; 13. The osteopath, Syed Hammad Hussain, records in the medical report dated 23 February 2018, that Mr Borvayeh presented with chronic, dull central lower back pain that is aggravated with rotation and side bending and occasional sharp pain in the central lower lumbar area; 14. In her medical report, dated 6 June 2018, Dr Hooper stated that Mr Borvayeh is strongly impacted by pain. He attended appointments in a lot of pain; 15. Dr Tahir's medical report, dated 23 November 2018, relevantly states that Mr Borvayeh was reviewed for lower back pain, with an MRI scan showing minimal generalised disc bulging at L3-4 and L4-5. He was prescribed prednisolone and will start water aerobics and a Xylocaine patch; 16. Dr Tahir's medical report, dated 23 November 2018, relevantly states that Mr Borvayeh was reviewed for lower back pain with features of moderately severe generative disc disease. He was walking on crutches and had recurrent falls; 17. Ms Linda Ho, physiotherapist, in a medical report, dated 1 March 2019, relevantly states that her assessment findings were of chronic lower back pain with referral down legs, right side more affected. An MRI scan shows mild disc bulges, but the patient presents with marked irritability and limited function. Unable to sit for more than 15 minutes, unable to stand more than a few minutes and walking with a single crutch. He is unable to work. Ms Ho did not believe that Mr Borvayeh would achieve sustained improvement with just five subsidised sessions and asked whether referral to the Austin Pain Management Clinic had been considered; 18. A report from the Emergency Department of the Northern Hospital, dated 26 May 2019, states that Mr Borvayeh attended that day with acute on chronic back pain. Mr Borvayeh's oral evidence to the Tribunal was that he attended the hospital on one occasion with back pain and later found out that it had been a kidney stone. There is no reference in any of the medical material to kidney stones. The TAC submitted that this explanation for the hospital attendance was a fabrication by Mr Borvayeh; 19. The clinical records and medical reports indicate that prior to the transport accident, Mr Borvayeh had a significant disability, whether it had organic origins or a chronic pain syndrome; 20. Dr Tahir in a medical report, dated 27 May 2019, stated that he reviewed Mr Borvayeh that day with complicated health issues. His major problem was that he was admitted to Northern Hospital the previous night with moderate severe lower back pain. He was escorted to the appointment with Dr Tahir by his family friend, as he could not drive. Mr Borvayeh had lower back pain and bilateral hip pain; 21. Mr Neil Lorimer, physiotherapist, in his report dated 3 June 2019, stated that the objective assessments recorded significant losses in lumbar spine, active range of motion, dysfunction of L1 to L5/S1, positive straight leg raising bilaterally, reduced lower limb strength and dulled reflexes and poor standing/sitting tolerance. He presents with sensitivity to light touch and finds it extremely difficult to maintain any form of posture for short periods of time thus directly affecting his overall function. He presents with a significant amount of lower back pain which is directly affecting his capacity to work and carry out his activities of daily living independently. Treatment appears to have had very little impact;

1. Dr Hooper stated in her report, dated 20 June 2019, that Mr Borvayeh reported a great deal of frustration and despair about his situation, especially the chronic severe back pain which limited his ability to care for himself. He was brought in by a friend who took time off work to bring him to the appointment. Mr Borvayeh stated that there had been no change in the severity of his back pain. His mental health issues remained at the severe end of the spectrum, and he reported feeling overwhelmed and helpless, and needing assistance with ADLs, but had no one close to him to provide this, and was ineligible for other assistance, such as NDIS, due to his visa status. Mr Borvayeh was suffering from depression, insomnia, and PTSD, and his condition was maintained by chronic pain, restricted mobility, and social isolation. His self-care was poor and is at risk of deterioration if he is not provided with additional assistance, showering, cleaning, cooking, et cetera, as well as emotional support. He has quite a helpless presentation;

1. In the year prior to the accident, the applicant was receiving considerable treatment from physiotherapists, a psychologist, a rheumatologist, and his GP, at a minimum for his overall significant disability, in terms of pain, function, and needing assistance, and inability to do any work at all, and a man who, at that stage, was in his early 30s.

1. Dr Tahir's medical report, dated 29 August 2019, relevantly stated that he reviewed the applicant that day. Mr Borvayeh had moderate/severe low back pain and was currently walking with crutches and needed high analgesia. He was given a prescription for Endone, as he has severe lower back pain. This contradicts Mr Borvayeh's evidence that he received a script for Endone once and did not like it and threw it away. That evidence is irreconcilable with Dr Tahir's report and the clinical notes of Dr Al-Sharifi, stating that Mr Borvayeh was demanding more Endone;

1. Dr Asadi provided a medical report, dated 7 September 2019. The report relevantly states Mr Borvayeh presented as a medium built man who walked with a stick and appeared to be in pain. He notes that he was applying for disability support pension; 2. Dr Tahir's medical report, dated 2 March 2020, relevantly stated that Mr Borvayeh has significant pain which has affected his functional quality of life. He is currently managing very well on Endone, 5 milligram daily. Mr Borvayeh was given a script; 3. The TAC submitted that Mr Borvayeh's significant pain continued into 2020. Dr Al-Sharifi makes a referral to Dr Woodgate, dated 15 April 2020, for management of Mr Borvayeh's chronic pain and not just for review of Tramadol medication; 4. Dr Woodgate's medical report, dated 8 May 2020, relevantly provides a 10 year history of low back pain, which started following being tortured in Iran. The pain is consistently 10 out of 10 and slightly improved with medication. His pain is mostly across his lower back and associated with numbness in his lower limbs. Mr Borvayeh's sleep is poor or erratic. Mood is poor. He has seen multiple specialists and allied health treaters regarding his pain. Past history is notable for post-traumatic stress disorder. Currently medication is Tramadol, 200 milligram slow release, sometimes taking four or five of these per day including purchasing on the black market, Endone, Cymbalta, Mirtazapine, and Seroquel;

1. Dr Woodgate recorded that Mr Borvayeh lives alone. His long-term partner broke up with him. He occasionally has a friend visit, who does various domestic activities around the house and helps him with some personal care. He smokes around 15 cigarettes a day. The impression was persistent non-specific low back pain in a setting of previous significant trauma. He tells me that he finds the Tramadol helpful. Dr Woodgate found that it sounds as though Mr Borvayeh will often use beyond the amount he is prescribed. Dr Woodgate suggested restricting Mr Borvayeh's Tramadol prescription to twice a day with only weekly pick-ups, and monthly prescriptions;

1. The TAC submitted that Mr Borvayeh's condition was objectively spiralling at this stage, clearly deteriorating. Further that, on any view, it is fairly dire, and this is only a few months before the transport accident. Dr Woodgate is proposing restricting Mr Borvayeh's prescription to twice a day; 2. The TAC submitted that as Dr Baglar noted when he was apprised of Mr Borvayeh's past medical history, it was impossible to estimate the contribution from the transport accident on his life; 3. Prior to the transport accident, the clinic picture of Mr Borvayeh from the clinical notes and medical reports is so jumbled with chronic pain and chronic disability, albeit the focus was the lower back. The clinical picture is clearly dire prior to the accident. The applicant is reporting the need for assistance with both his psychological and physical conditions, he is walking with a crutch, he is walking with a stick, he is requiring more medications, he is unable to work, and the picture before the accident is not different to that after the accident; 4. The only thing that changes is he is getting his medication from a different GP, as he had a fight with Dr Al-Sharifi. There was Dr Eshraghi for two or three attendances between the two GPs, but there is no report from him, and that is where it ends. The TAC submitted that all of that flies in the face of what the applicant says in his statements, which he swore was true and correct; and 5. Mr Borvayeh's evidence of living a healthy, active, and fulfilling life, including gym training, boxing, preparing for Olympia competitions, before the transport accident, must be complete nonsense. There is no way that statement can be reconciled with the clinical picture over many years prior to, and leading up to, the accident.
2. The clinical notes also refer to contemporaneous complaints of Mr Borvayeh regarding impacts of the back conditions on his activities of daily living after the transport accident. These complaints do not rely upon Mr Borvayeh's recall of his symptoms, treatment or activities prior to the transport accident.
3. The Tribunal considered the medical reports and scans provided for the period after the transport accident, as follows:
   1. Dr Baglar's clinical notes from December 2020, relevantly indicate that Mr Borvayeh was complaining of severe lower back pain and he was prescribed significant pain medication;
   2. The MRI scan of the lumbar spine, dated 2 March 2021, indicated low grade degenerative disc disease and low-grade bilateral facet joint arthropathy L4/5 slightly worse on the right. This conclusion was not indicative of any change from the MRI scan taken prior to the transport accident, 27 January 2016;
   3. Dr Baglar's medical report, dated 6 June 2022, discussed above, in which the doctor concludes that as the information regarding Mr Borvayeh's history of pre-existing very severe lower back pain was unknown to him, he was unable to assess the contribution of the transport accident to Mr Borvayeh's physical state;
   4. Mr David de la Harpe, orthopaedic surgeon, examined Mr Borvayeh on 26 February 2022. He provided a medical report, dated 26 February 2022, which relevantly stated that Mr Borvayeh complained of neck pain, lower back pain and numbness in this hands and legs. His reported treatment had been some physiotherapy, medications including Targin, a topical patch for analgesia and a sleeping tablet. Mr Borvayeh relied on his cousin to do domestic chores and even wash him. There was no other significant past medical history. On examination, Mr Borvayeh presented as totally incapacitated with a very slow, apprehensive gait. He had difficulty sitting down and getting up from a chair. Mr Borvayeh had a range of movements of 45 degrees of the lumbar flexion and 0 degrees of the lumbar extension limited by apprehension and pain. There was no neurological abnormality of the lower limbs with respect to tone, power, reflexes, sensation and coordination. His MRI scan of the lumbar spine would pass as normal for his age. Mr Borvayeh should be seen by a multidisciplinary pain team, which will include psychological counselling; and
   5. Dr Slesenger's third medico-legal report, dated 22 July 2022, indicated that he had, by that time, reviewed the further material provided to him. Dr Slesenger concluded that taking into account Mr Borvayeh's unreliable narrative, the past history of chronic pain to the lumber spine, the level of pre-injury disability identified in the clinical records, the low speed nature of the impact and the inconsistencies in the examination of Mr Borvayeh, he was of the opinion that it was likely that he had suffered an aggravation of chronic lower back pain from the transport accident, which was now resolved.
4. Taking the above evidence into account, the Tribunal is not able to be satisfied that Mr Borvayeh's lower back injury sustained in the transport accident persists. This is the case for the following reasons:
   1. Mr Borvayeh's unreliable evidence to the Tribunal regarding his lower back condition, symptoms, treatment and functional impact prior to the transport accident, means that the Tribunal cannot be satisfied of the injury on the basis of Mr Borvayeh's evidence to the Tribunal;
   2. A comparison of the clinical notes and medical reports for the period before the transport accident and after the transport accident do not support a conclusion that the transport accident caused an ongoing aggravation or exacerbation of the lower back condition. The only conclusion open on a comparison of the descriptions of the symptoms, treatment and functional impact of the lower back condition before and after the transport accident, is that as of a short period after the transport accident, Mr Borvayeh's back condition returned to as it was prior to the transport accident; and
   3. A comparison of the radiology reports obtained before the transport accident and after the transport accident do not support a conclusion that the transport accident caused an ongoing aggravation or exacerbation of the lower back condition. The radiology reports do not indicate structural damage to Mr Borvayeh's lumbar spine in the transport accident.
5. There was otherwise a lack of evidence to support any findings that the injury to the lower back caused by the transport accident had persisted. Therefore, the aspect of the decision under review which denied the claim in relation to the lower back must be affirmed.

DID THE TRANSPORT ACCIDENT CAUSE, AGGRAVATE OR EXACERBATE A CERVICAL SPINE CONDITION

1. The mechanism of the transport accident is discussed above at [26].
2. Mr Borvayeh described ongoing neck symptoms from the transport accident, which he indicated had impacted on his daily life and wellbeing and had financial, employment, personal and emotional consequences, see [21] to [22] above.
3. The TAC submitted that it relied upon the opinion of Dr Joseph Slesenger, Specialist Occupational Physician, in medico-legal reports dated 27 June 2021, 8 July 2021 and 22 July 2022. Further, the TAC submitted that:
   1. Dr Slesenger had given Mr Borvayeh the benefit of the doubt by finding that there had been a soft tissue injury to the cervical spine. He found that the injury had resolved a short time after the transport accident;
   2. Dr Slesenger in his first report expresses concern regarding the accuracy of the history provided by Mr Borvayeh. He was then provided with additional materials to form an opinion;
   3. Dr Baglar, Mr Borvayeh's GP after the transport accident, did not commence treating Mr Borvayeh until a couple of weeks after the accident;
   4. The applicant's case was not assisted by the medical reports of Dr Al-Sharifi, Dr Woodgate, Dr Tahir, or Dr Hooper;
   5. Mr Borvayeh in his oral evidence admitted not telling Dr Baglar about his past medical history. He stated that he did not think he needed to;
   6. Dr Baglar's medical report stated that Dr Baglar was unaware of any pre-existing condition prior to receiving the 'questionnaire'. Mr Borvayeh never mentioned that he had severe neck and low back pain prior to the transport accident. Mr Borvayeh was not known to Dr Baglar prior to the accident, so he did not witness the level of his pre-existing disability firsthand. It is therefore impossible for Dr Baglar to estimate the actual contribution of the accident on his life;
   7. The TAC submitted that if in June 2022, it was impossible for Dr Baglar, to estimate any contribution of the motor vehicle accident to any aggravation, it was therefore impossible for the Tribunal to do so. This is particularly due to the misguided and, at times, dishonest evidence of Mr Borvayeh;
   8. The TAC submitted that Mr Borvayeh had severe neck pain prior to the motor vehicle accident. It relied upon the reference to pre-existing severe neck pain in the medical report of Dr Baglar, Mr Borvayeh's GP after the motor vehicle accident, a single reference to neck pain in Dr Al-Sharifi's clinical notes, dated 10 April 2017, and a reference to chronic neck pain in a medical report from Dr Tahir, dated 25 February 2019; and
   9. Mr Borvayeh's witness statement, dated 18 August 2022, stated that he suffered an aggravation of multiple injuries and includes neck in the list of injuries.
4. The reference to severe neck pain by Dr Baglar appears to arise from documents provided to him from lawyers for the purpose of his report. The TAC indicated that it was unable to say what information was provided to Dr Baglar. The Tribunal finds that Dr Baglar's evidence of severe neck pain prior to the transport accident has no probative value, as the source and nature of this information is unknown. Dr Baglar had not treated Mr Borvayeh before the transport accident and did not take a history of pre-existing neck pain.
5. The reference in the clinical notes of Dr Al-Sharifi to neck pain is a single isolated reference in clinical notes spanning from 2016 to 2020. There is no reference to symptoms, investigation, treatment or a diagnosis in relation to a neck condition. The condition does not appear in the summary of the past medical history on the opening pages of the clinical record. The Tribunal finds that this reference in the clinical notes on 10 April 2017, has little probative value to consider whether Mr Borvayeh had an existing neck condition more than three and a half years after this consultation. The isolated nature of the reference in the context of Mr Borvayeh's regular appointments with Dr Al-Sharifi, would at most indicate an isolated event of some neck pain, which did not require assessment, treatment or investigation.
6. Similarly, the reference to chronic neck pain in the medical report of Dr Tahir, dated 25 February 2019, is isolated and there if nothing further recorded as to examination, symptoms, treatment or diagnosis of a neck condition. A neck condition is not referred to in any of Dr Tahir's other medical reports provided prior to the transport accident, including the reports dated 27 May 2019, 28 August 2019 and 2 March 2020. None of the reports include a neck condition in the list of problems at the beginning of the report. The Tribunal finds that this reference in Dr Tahir's medical report has little probative value in considering whether Mr Borvayeh had an existing neck condition more than 18 months after the consultation. The isolated nature of the reference in the context of Mr Borvayeh's other consultations with Dr Tahir, his regular appointments with Dr Al-Sharifi and his consultation with other health professionals, would at most indicate an isolated event of some neck pain, which did not require assessment, treatment or investigation.
7. Unlike with the lumbar spine condition, there was no radiology evidence of a condition of the cervical spine prior to the transport accident.
8. In relation to the neck injury claimed to be caused by the transport accident and any current neck condition to be the result of the transport accident, the Tribunal notes the following matters:
   1. The Emergency Department records for Northern Hospital, dated 1 December 2020, stated that Mr Borvayeh was the driver of a vehicle travelling at slow speed when struck from behind by another car at slow speed. Nil to minimal panel damage, nil airbags deployed, able to self-extricate. Nil head strike or loss of consciousness. Pain everywhere. Given Penthrane and IV fentanyl en route. Lumbar back pain, cervical spine tender and moderate pain to slightest touch;
   2. The Emergency Department summary, dated 2 December 2020, stated that Ambulance Victoria noted that Mr Borvayeh had self-extricated from vehicle and was lying on nature strip when ambulance arrived. He complained of pain everywhere and probably left lateral neck pain and a C-collar was applied by Ambulance Victoria. Mr Borvayeh later self-discharged from hospital and removed collar. The examination findings were that Mr Borvayeh was almost hysterical with the C-collar application at triage. He ambulated slowly and with a limp to the cubicle. He complained of pain on very light touch on midline neck, mid thoracic and lumbar spine, left clavicle and shoulder. He also complained of numbness of digits on left hand and appeared very stiff on his left shoulder. He was able to lateral rotate neck 45 degrees with pain;
   3. A report of a CT scan performed on 24 December 2020, states there was observed a small central disc protrusion at C5-6 mildly touching the ventral spinal cord. No neural exit foraminal stenosis;
   4. The report of an MRI scan of the cervical spine, dated 2 March 2021, relevantly states a conclusion of a shallow broad-based protrusion contacting the cord with very slight distortion;
   5. The report of an MRI scan of the cervical spine, dated 1 February 2022, relevantly states that the C4/5 disc has minor disc/osteophyte complex indents theca. No effect on cord, mild bilateral neurocentral osteophytosis produces minor foraminal stenoses without radiculopathy. The comment includes minor degenerative changes at C4/5;
   6. Dr Baglar medical report, dated 30 March 2021, relevantly states that Mr Borvayeh sustained injuries due to a motor vehicle accident in December 2020. His injury related to his cervical spine. TAC was requested to approve a consultation with a spinal surgeon;
   7. Dr Baglar's medical report dated 19 July 2021, stated that he first saw Mr Borvayeh on 15 December 2020 for his ongoing care and management of injuries sustained in a motor vehicle accident. Mr Borvayeh told Dr Baglar that after the accident, he felt immediate excruciating neck pain along with back and left shoulder pain. He was taken to Northern Hospital, where he presented with diffuse pain in the neck and left shoulder, mid and lower back. He presented at the Emergency Department the next day, with ongoing left clavicular pain and lateral neck pain. He was diagnosed at the time with muscle and musculoskeletal pain and complaints of numbness in his left hand and fingers. Dr Baglar placed Mr Borvayeh on narcotic medication due to his stated unrelenting pain. Dr Baglar concluded that Mr Borvayeh had a capacity to sit and stand/walk but cannot bend, squat, kneel, reach above shoulder level, use his injured left arm, and did not have flexible neck movements;
9. As discussed above, the Tribunal is not satisfied that leading up to the transport accident, Mr Borvayeh was suffering from a cervical spine condition or injury. The ambulance, hospital and doctors' notes for the period shortly after the motor vehicle accident, indicated that Mr Borvayeh had immediately complained about neck pain and severe neck pain. Investigations were undertaken including a CT scan and two MRI scans. Over the next almost five years, Mr Borvayeh has continued to complain about neck pain and severe neck pain to his GPs as well as the Pain Management Clinic and the Emergency Department at Northern Hospital. He has continued to be treated for the neck pain, including being prescribed medication, undertaking physiotherapy and a pain management program. Further, in April 2025, Dr Mehr assessed Mr Borvayeh as continuing to suffer from a cervical spine condition. The matters in Dr Slesenger's evidence and reports were not put to any of Mr Borvayeh's treating doctors who had alternative or different opinions; and
10. This evidence is to be weighed against Dr Slesenger's evidence of one examination of Mr Borvayeh in June 2021, when he formed the opinion that Mr Borvayeh had suffered a soft tissue injury in the transport accident, but this had now resolved. Dr Slesenger appears to have largely formed this opinion on the basis that he could not find any objective support for an ongoing cervical spine injury. If there had been an ongoing cervical spine injury, Dr Slesenger would have expected consistency in the clinical examination, he would not have expected to see give-way weakness in the upper limbs and he would have expected to see consistency in terms of the range of movements. Dr Mehr, who examined Mr Borvayeh in April 2025, stated that he found it quite difficult to perform the clinical examination of Mr Borvayeh and had the same radiology reports which Dr Slesenger referred to, and found that there was an ongoing injury to the cervical spine. The Tribunal notes that difficulties in performing a physical examination of Mr Borvayeh's stated injuries go back to the night of the transport accident and as evidenced by the observations of the paramedics, the triage nurse and the Emergency Department doctors.
11. The Tribunal is satisfied on the basis of the above evidence that:
    1. As discussed above, Mr Borvayeh's evidence of his pre-injury conditions was unreliable. However, as discussed above, the Tribunal is satisfied that immediately prior to the transport accident, he was not suffering from a neck condition;
    2. The medical evidence at around the time of the transport accident allows for the possibility that the accident caused the injury. The Tribunal finds that the evidence indicates that it was very likely that the transport accident caused an injury to the neck. The Tribunal is satisfied that Mr Borvayeh suffered any injury to his neck in the transport accident on 1 December 2020;
    3. The medical evidence since the transport accident is consistent with Mr Borvayeh regularly complaining to health professional about his neck pain or severe neck pain and undertaking investigations, treatment and referrals for the neck pain. The clinic notes, medical certificates and reports of Dr Baglar, when his opinion based on incorrect information provided by the lawyers is excluded, as well as of Dr Sam Hermiz, Mr Borvayeh's current GP, and Dr Mehr, each support a finding that Mr Borvayeh has regularly complained of neck pain and severe neck pain and that he has an ongoing neck injury;
    4. Mr Borvayeh had a neck condition at the time of the hearing in this Tribunal. There is an organic basis to this condition, although it seems likely that there is also a psychological component; and
    5. There is no evidence of Mr Borvayeh suffering any new neck injury at any point after the transport accident.
12. Therefore, the Tribunal is satisfied that Mr Borvayeh continues to suffer from an aggravation of a neck injury caused by the transport accident. The Tribunal will therefore set aside that aspect of the decision under review and substitute a new decision that the cervical spine claim is accepted.

DID THE TRANSPORT ACCIDENT AGGRAVATE OR EXACERBATE THE PRE-EXISTING MENTAL HEALTH/PSYCHIATRIC CONDITIONS

1. Mr Borvayeh's written submissions, which he adopted as part of his evidence in chief, included the following:
   1. Impact on Daily Life and Wellbeing

Before the accident, gym training, boxing, and preparing for Olympia competitions. Since the accident, I live with chronic pain, limited mobility, and dependence on others for daily tasks.

This has caused deep emotional distress, anxiety, depression, and a significant reduction in my quality of life. Social participation, work, and hobbies are no longer possible.

I am unable to perform physical work or maintain employment. Previously financially independent, I now rely on Centrelink benefits, which are insufficient to cover essential costs.

I have paid for car repairs, medications, physiotherapy, and other medical expenses personally, and all receipts are available.

...

The accident has caused persistent depression, anxiety, and loss of confidence. I feel isolated, frustrated, and emotionally drained. Social withdrawal and relationship difficulties have occurred, and ongoing mental health support is required.

My injuries limit work, study, and physical activity, reducing long-term earning capacity and career prospects. Dependence on financial assistance has created instability. Activities that once defined my identity and happiness are now difficult or impossible, lowering my quality of life.

1. The TAC, in summary, submitted that prior to the transport accident, Mr Borvayeh had received considerable psychiatric treatment and had been diagnosed with post-traumatic stress disorder and a depressive disorder. The pre-accident medical reports evidence that the pre-existing physical and psychiatric medical conditions severely impacted Mr Borvayeh's mobility and level of function. He was incapacitated for all work and was applying or intending to apply for a disability support pension.
2. The TAC relevantly submitted that:
   1. Dr Baglar in his report, dated 6 June 2022, notes that Dr Sam Asadi's psychiatric report states that Mr Borvayeh had pre-existing post trauma stress disorder prior to the transport accident and was in the process of applying for a disability support pension. This shows that Mr Borvayeh's mental state was so severe as to be qualified for disabled status;
   2. Mr Borvayeh gave a very specific history to Dr Asadi, which the TAC submitted could only have come from Mr Borvayeh. Mr Borvayeh told Dr Asadi that he suffered from significant trauma in Iran between the ages of 20 and 22. He and his family were bashed and threatened by authorities. Mr Borvayeh complained of a current depressed mood, irritability, anhedonia, flashbacks, nightmares, free-floating anxiety, poor appetite, weight loss, poor tolerance to noises and crowds and insomnia;
   3. Dr Al-Sharifi's clinical notes for the period 2016 to September 2020, include a reference to Mr Burvayeh suffering long term depression and anxiety since 2012, numerous references to depression, insomnia, anxiety, with treatment of prescriptions for Tamaze, Avanza, Mirtazapine, Seroquel and Cymbalta, a referral to Dr Hooper, a psychologist, in 2016;
   4. Dr Hooper stated in her report, dated 7 July 2017, that Mr Borvayeh reported that he first experienced depression and anxiety as a result of his experiences in immigration detention. He described symptoms which indicated that he was suffering from depression, insomnia and post trauma stress disorder, as a result of the torture he experienced in Iran. His condition is maintained by his chronic pain. Mr Borvayeh condition is quite severe and so the prognosis is poor;
   5. Dr Hooper in her medical report, dated 20 June 2019, stated that Mr Borvayeh reported a great deal of frustration and despair about his situation, especially the chronic severe back pain which limited his ability to care for himself. He was brought in by a friend who took time off work to bring him to the appointment. Mr Borvayeh stated that there had been no change in the severity of his back pain. Mr Borvayeh's mental health issues remained at the severe end of the spectrum, and he reported feeling overwhelmed and helpless, needing assistance with ADLs, but had no one close to him to provide this, and he was ineligible for other assistance, such as NDIS, due to his visa status. He was suffering from depression, insomnia and PTSD, and his condition was maintained by chronic pain, restricted mobility, and social isolation. His self-care is poor and is at risk of deterioration if he is not provided with additional assistance, showering, cleaning, cooking, et cetera, as well as emotional support. He has quite a helpless presentation;
   6. Dr Asadi's medical report, dated 7 September 2019, relevantly stated that he believed that Mr Borvayeh was suffering from post-traumatic stress disorder as well as a major depressive disorder in the context of chronic back pain. Mr Borvayeh complained of depressed mood, irritability, anhedonia, flashbacks, nightmares, free-floating anxiety, poor appetite, weight loss, poor tolerance to noises and crowds and insomnia. His medical and psychological conditions are debilitating and he has significantly impaired function. He is unlikely to recover from his psychological problems as long as he is plagued by the chronic pain. The TAC submitted that Dr Asadi, Mr Borvayeh's psychiatrist, gives an opinion just a little bit over 12 months prior to the car accident, and clearly reports a man who is significantly mentally and physically disabled; and
   7. On 15 April 2020, Dr Al-Sharifi referred Mr Borvayeh to Dr Woodgate. The referral letter referred to a history including depressive anxiety disorder in 2012, post-traumatic stress disorder in 2019 and major depression in 2019. Dr Woodgate's medical report, dated 8 May 2020, notes the history of post-traumatic stress disorder and that Mr Borvayeh is being prescribed Cymbalta, Mirtazapine and Seroquel. Mr Borvayeh has poor and erratic sleep and poor mood.
3. The Tribunal further notes regarding Dr Asadi's medical report, dated 7 September 2019, that at the consultation Mr Borvayeh was dishevelled. He said he did not have any motivation to attend to his personal hygiene. He had a preoccupation with his current predicament, including chronic pain as well as flashbacks of the past traumas. Mr Borvayeh is suffering PTSD as well as a major depressive disorder in the context of chronic back pain.
4. Dr Hermiz's clinical notes indicate that in the years since the accident, Mr Borvayeh has continued to be prescribed Cymbalta and Mirtazapine, and Duloxetine has also been added. The notes continue to refer to depression and poor sleep. Mr Borvayeh was referred to Dr Sam Ibrahim, psychiatrist, in 2024 for depression and PTSD, insomnia, stress, anxiety, poor sleep and lack of concentration.
5. A mental health transition discharge summary from Northern Health, dated 9 February 2024, stated that Mr Borvayeh reported symptoms of poor sleep, nightmares from the accident, nil appetite, increased anxiety, racing thoughts and suicidal thoughts. The summary stated that the impression was that Mr Borvayeh was experiencing a depressive episode in the context of chronic pain and disability following the transport accident. His ability to look after his own needs is significantly compromised. The personal history notes a nil mental health history.
6. A medical report from Dr Samir Ibrahim, consultant psychiatrist, dated 13 August 2024, relevantly states that Mr Borvayeh suffered physical injuries in the transport accident. He has many frustrations as he cannot lead a natural life: self-care, hygiene, cannot go to the toilet, cannot shower alone, and has many depressive illnesses. Mr Borvayeh is depressed, irritable and short tempered, and easily provoked, cries all the time, with despair, helplessness and hopelessness, and lost his plan and hope to the future. He has a sense of suffocation, poor concentration and memory. Mr Borvayeh has many nightmares and insomnia with panic attacks at night, with palpitation, tremors, muscle tension and feels very distressed. He fears to sleep now. He has become a recluse and isolated socially and withdrawn. Mr Borvayeh talks to his family, and they support him. He lost sexual potency and lost libido and has weak erection. Mr Borvayeh grieves his previous life, capabilities, and dreams about being in Australia. Dr Ibrahim's stated diagnosis was an adjustment disorder, depression and anxiety, with possible post-traumatic stress disorder.
7. The medical report of Dr Mehr, dated 16 April 2025, relevantly states that there is some evidence of depression, anxiety and PTSD post-injury.
8. The Tribunal does not have before it a medical report from a practitioner who treated or examined Mr Borvayeh's mental state both before and after the transport accident. Mr Borvayeh's evidence as to his mental state prior to the transport accident is unreliable, as discussed earlier in these reasons. In short, he gave evidence that he was not suffering from any mental health problems prior to the transport accident and even stated that 2018 was the best time of his life. This was completely inconsistent with the clinical notes and medical reports from a number of practitioners for the period from 2014 to 2019, including detailed evidence as to his mental health symptoms, referrals to a psychologist and a psychiatrist, and the medication he was prescribed.
9. A comparison of the clinical notes and medical reports for the periods before the transport accident and after the transport accident do not support a conclusion that the transport accident caused an ongoing aggravation or exacerbation of Mr Borvayeh's psychological conditions. Although there was some variation in Mr Borvayeh's reported symptoms at times after the transport accident and some changes in his relevant medication, these changes are insufficient to support a finding that the transport accident caused an ongoing aggravation or exacerbation.
10. The Tribunal is therefore not satisfied that the transport accident caused an ongoing aggravation or exacerbation of Mr Borvayeh's psychological conditions. The denial of this aspect of the decision under review must therefore be affirmed.

DID THE TRANSPORT ACCIDENT AGGRAVATE OR EXACERBATE THE PRE-EXISTING LEFT SHOULDER INJURY

1. Mr Borvayeh's witness statement relevantly states that as a result of the transport accident, he suffered an aggravation of bilateral shoulder injuries. Prior to the transport accident, Mr Borvayeh had experienced left shoulder pain. In 2018, he underwent a left shoulder injection which provided relief.
2. The TAC submitted that:
   1. Dr Slesenger had given Mr Borvayeh the benefit of the doubt by finding that there had been a possible soft tissue injury to the left shoulder. He found that the injury had resolved a short time after the transport accident;
   2. Dr Slesenger in his first report expresses concerns regarding the accuracy of the history provided by Mr Borvayeh. He was then provided with additional materials to form an opinion;
   3. Dr Baglar, Mr Borvayeh's GP after the motor vehicle accident, did not commence treating Mr Borvayeh until a couple of weeks after the accident;
   4. The applicant's case was not assisted by the medical reports of his treating doctors Dr Al-Sharifi, Dr Woodgate, Dr Tahir or Dr Hooper;
   5. Mr Borvayeh in his oral evidence admitted not telling Dr Baglar about his past history. He stated that he did not think he needed to;
   6. Dr Baglar's medical report, dated 6 June 2022, stated that Dr Baglar was unaware of any pre-existing condition prior to receiving the 'questionnaire'. Mr Borvayeh never mentioned that he had severe shoulder pain prior to the motor vehicle accident. Mr Borvayeh was not known to Dr Baglar prior to the accident, so Dr Baglar did not witness the level of his disability firsthand. It is therefore impossible for Dr Baglar to estimate the actual contribution of the accident on Mr Borvayeh's life;
   7. The TAC submitted that if in June 2022, it was impossible for Dr Baglar to estimate any contribution of the motor vehicle accident to any aggravation, it was therefore impossible for the Tribunal to do so. This is particularly due to the misguided and, at times, dishonest evidence of Mr Borvayeh;
   8. Dr Al-Sharifi's clinical notes indicate that Mr Borvayeh complained of left shoulder pain in May 2018;
   9. Mr Borvayeh underwent a left shoulder Xray and ultrasound in May 2018 and shortly afterwards had a left shoulder injection. The Xray report stated no significant bony or joint abnormality seen and found thickened subdeltoid bursa with bursal bunching or abduction consistent with bursitis and impingement; and
   10. A report of Dr Tahir, dated 25 February 2019, relevantly states that Mr Borvayeh had shoulder pain in 2013. He also states that he has severe left shoulder subdeltoid and subacromial bursitis on ultrasound.
3. Dr Asadi states in his report, dated 7 September 2019, that Mr Borvayeh had told him that he had fallen in the shower and was now suffering from left shoulder pain due to bursitis. Dr Hooper's clinical notes for 4 June 2018, relevantly state that Mr Borvayeh had a fall in the shower and injured his left shoulder. He was referred for an Xray and cortisone injection but felt it has not helped.
4. The Tribunal notes that the only references to shoulder pain or a shoulder condition prior to the transport accident are referred to in the previous two paragraphs. It does not appear from the clinical notes that Mr Borvayeh was complaining to his GP about shoulder pain. In relation to the left shoulder injury, Mr Borvayeh's evidence about his pre transport accident condition is largely consistent with the medical evidence.
5. As noted above, Dr Baglar stated in his report, dated 6 June 2022, that as Mr Borvayeh had severe shoulder pain prior to the transport accident and he had not treated him before the transport accident, he was unable to assess the actual contribution of the transport accident on his life. Dr Baglar did say that at that time, Mr Borvayeh was really disabled by shoulder pain.
6. Dr Baglar's report dated 19 July 2021, states that Mr Borvayeh had told him that after the transport accident, he had excruciating left shoulder pain. Dr Baglar did not include a current diagnosis regarding the left shoulder in this report.
7. The clinical notes of Mr Borvayeh's GP after Dr Baglar, Dr Hermiz, contain a complaint about shoulder pain. Dr Mehr reported in April 2025, that Mr Borvayeh suffers from constant shoulder pain. He did not indicate an opinion about this pain.
8. The notes from the Northern Hospital, dated 2 December 2020, indicate that Mr Borvayeh presented with left shoulder pain one day after the car accident.
9. On 2 December 2020, the day after the transport accident, Mr Borvayeh underwent a left shoulder and clavicle Xray at Northern Hospital. The report stated that there appears to be a slight widening of the left AC joint as compared with the right, but no upward displacement is seen. There does appear to be soft tissue thickening and the features suggest a grade 1 AC joint ligament injury. No fracture detected. The result of the Xray of the left shoulder on 2 December 2020, indicates changes to the left shoulder from the 2018 left shoulder Xray.
10. The TAC submitted that Mr Borvayeh had shoulder pain prior to the motor vehicle accident.
11. The Tribunal is not satisfied that Dr Baglar's statement in this report dated 6 June 2022, that from the correspondence he had now received from lawyers Mr Borvayeh had very severe shoulder pain prior to the transport accident. That proposition has not been made out on the evidence before this Tribunal. It is unclear the material Dr Baglar had before him in reaching this conclusion. There is sufficient evidence for the Tribunal to find that on a number of occasions from 2013, Mr Borvayeh had complained to health practitioners of left shoulder pain.
12. The Tribunal is satisfied on the basis of the above evidence that:
    1. Mr Borvayeh's evidence of his pre-injury conditions was unreliable. However, as discussed above, the Tribunal is satisfied that Mr Borvayeh had a limited number of episodes of left shoulder pain in the six years prior to the transport accident. He was not regularly complaining to health professionals regarding left shoulder pain;
    2. The medical evidence at around the time of the transport accident, allows for the possibility that the accident caused an aggravation of the left shoulder injury. The Tribunal find that the evidence indicates that it was very likely that the transport accident caused an injury to the left shoulder. The Tribunal is satisfied that Mr Borvayeh suffered any injury to his left shoulder in the transport accident;
    3. The radiology taken after the transport accident indicates that changes have occurred to the left AC joint since the Xray taken prior to the transport accident;
    4. Mr Borvayeh had a left shoulder condition at the time of the hearing in this Tribunal;
    5. The medical evidence since the transport accident is that there have been a number of occasions when Mr Borvayeh has complained about left shoulder pain to health professionals. These complaints have been far less regular than his complaints about his cervical and lumbar spine. The clinic notes of Dr Baglar and Dr Sam Hermiz, Mr Borvayeh's current GP, each refer to some complaints of pain in the left shoulder, but far less regularly than complaints about the cervical and lumbar spine. Dr Baglar's report dated 6 June 2022, stated that Mr Borvayeh is 'really disabled with his neck, lower back, bilateral shoulder pain and the transport accident at least took the level of his disability one step further'. The Tribunal notes the statement of Dr Baglar in this report that from the correspondence he had now received from lawyers, Mr Borvayeh had very severe shoulder pain prior to the transport accident is rejected as not established on the evidence. Dr Mehr indicated that in April 2025, Mr Borvayeh complained of constant left shoulder pain with a limited range of movements of the shoulder; and
    6. There is no evidence of Mr Borvayeh suffering any new left shoulder injury at any point after the transport accident.
13. Therefore, the Tribunal is satisfied that Mr Borvayeh continues to suffer from an aggravation of a left shoulder injury caused by the transport accident. The Tribunal will therefore set aside that aspect of the decision under review and substitute a new decision that the left shoulder claim is accepted.

1. The Tribunal will set aside the decision of the respondent made on 25 February 2022 to deny liability for the cervical spine, lumbar spine, hip, shoulder and mental/psychiatric injuries and substitute a new decision that the claims for the cervical spine injury and left shoulder injury are accepted and the claims for the lumbar spine, hip and mental/psychiatric injuries are denied.
2. For the reasons outlined above the Tribunal will make orders to:
   1. set aside the decision of the respondent made on 25 February 2022 to deny liability for the cervical spine lumbar spine, hip, shoulder and mental/psychiatric injuries and substitute a new decision that the claims for the cervical spine injury and left shoulder injury are accepted and the claims for the lumbar spine, hip and mental/psychiatric injuries are denied.
   2. Costs reserved.