AAI Limited t/as AAMI v Malachi

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	AAI Limited t/as AAMI v Malachi [2024] NSWPIC 536
CLAIMANT:	Axle Malachi
INSURER:	AAMI
MEMBER:	Alan Cowley
DATE OF DECISION:	30 September 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accidents Compensation Act 1999; damages assessment; claimant alleges injuries as a passenger of a car rear-ended by the insured’s vehicle; insurer admitted liability; nature and extent of injuries considered; claim for past and future economic loss, treatment expenses and care; claimant was paid a carers allowance to look after his father prior to accident but was not particularised; Held – no award for non-economic loss; award for future loss of earnings, past treatment and future treatment; no award for past or future gratuitous care.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION In accordance with Part 4.4 of the Motor Accidents Compensation Act 1999, the Commission’s assessment is: 1. The amount of damages assessed in respect of this claim is $52,295.80. 2. The amount of the claimant’s costs in the matter is $7,319.68, inclusive of GST.

STATEMENT OF REASONS

REASONS FOR DECISION - GENERAL ASSESSMENT

Issued in accordance with s 94(5) of the Motor Accidents Compensation Act 1999

INTRODUCTION

The Claimant alleges to have been injured in an accident when he was a passenger in a friend’s Toyota Corolla when they were rear-ended by the insured’s vehicle.
The Insurer has admitted liability.
The Claimant is self-represented.
He was examined by Dr Wallace in November 2016 and Dr Keller in September 2023 on behalf of the Insurer, neither of whom assessed the Claimant as having any whole person impairment.
The Claimant was examined by Dr Lee on his behalf in August 2016 who assessed the Claimant as having 10% whole person impairment.
The Claimant’s then Solicitors Thomas Booler Lawyers served the report of Dr Lee under cover of their letter responding to Particulars dated 6 October 2016. They noted that the Claimant’s injuries were now stable. I could assume that the Claimant’s Insurers were conceding on behalf of the Claimant that he has no entitlement to non-economic loss. I have invited the Claimant whether he intends to file an Application for Assessment of his whole person impairment with the PIC but I am not aware that I have received any response. Therefore, I assume that the Claimant concedes, as is proper, that he has no entitlement to non-economic loss.
The following issues have arisen in this matter:
a.     What is the nature and extent of the Claimant’s injuries?
b.     What is the Claimant’s past economic loss?
c.     What is the Claimant’s future economic loss?
d.     What is the Claimant’s past treatment expenses?
e.     What is the Claimant’s future treatment expenses?
f.     Is the Claimant entitled to past care?
g.     Is the Claimant entitled to future care?

BACKGROUND

I first of all I wish to emphasise to Mr Malachi, especially as he has requested that I deal with this matter on the papers and not face to face Hearing, that I am bound by the limitations of the Motor Accidents Compensation Act and the Claims Assessment Guidelines in coming to my decision.
In explaining that I do understand that the accident appears to be a fairly violent collision given a copy of the images that were provided to me of the damage to his friend’s car and the damage to the insured’s vehicle. This was not an ordinary mild rear-end collision that they suffered.
Being self-represented the Claimant, when asked to provide a final bundle of documents, provided numerous emails which were difficult to read but did not provide me with the information that would have assisted his case in supporting the various Heads or Categories of Damage that he was seeking.
In his last Statement dated 19 August 2024 and provided by a message on the Portal he describes in the accident that he was pushed back into the rear of his seat really hard and that he was very confused. At the time of the accident, he was about 20. He said that he was very young and did not understand any issues that may later arise. He admits that when the Police came and asked whether everyone was OK, he responded “yes”. The next day he said he was immobilised on his couch for about 2 weeks when his friends came and took him to a doctor.
I did have the benefit of attempting to read the handwritten notes of his GP which I will attempt to paraphrase.
“26 May 2014 MVA yesterday – passenger – wearing seatbelt. Hit from behind by another vehicle – complains of neck pain, low back pain, plus right arm, right wrist – complains of tenderness at C4 C5 C6 – right (unreadable), tenderness at L4 L5 S1, right side (unreadable), right wrist (unreadable).
1 July 2014 complains of back pain and stiffness since the June (unreadable) accident – x-ray since the lumbar spine – Brufen (unreadable).
18 July 2014 review x-ray lumbar spine (unreadable), blood pressure reading – CT lumbar spine – pain radiating to left leg.”
The x-ray by Marrickville Imaging Centre on 3 July 2014 of the lumbar spine reports a significant disc space narrowing at L5/S1 with no compression fracture seen and the S1 joints being normal.
I could find no reference to the results of any diagnostic investigation of his cervical region immediately after the accident.
The clinical notes are very difficult to read as they are handwritten. They are also out of logical order. I am therefore reliant upon the Insurer’s interpretation of their review of the various doctors that the Claimant has attended.
The first observation I wish to make however is that the Claimant was no stranger to doctors surgeries in Southwestern Sydney prior to the accident and immediately after, as well as to numerous hospital attendances at for example St George Hospital and Canterbury Hospital for various ailments both prior and since the accident.
The Insurer notes that in the Claimant’s Personal Injury Claim he denied any pre-existing injuries or illnesses involving similar parts of his body to those allegedly injured in the subject accident.
They note that to the contrary medical records note that the Claimant presented on 1 March 2014 that is just 2 months before the subject accident, with left back pain symptoms in his left shoulder blade for which he was prescribed Brufen.
Further that on 29 September 2019 he presented to St Vincent’s Hospital Emergency Department with left chest pain and palpitations after smoking marihuana and drinking an energy drink. It was noted that he uses cocaine regularly.
On 18 December2013 the Claimant was discharged from Canterbury Hospital after he presented with abdominal pain and depression.
On 13 February 2014 he presented to Quigg Street Medical Practice complaining of lethargy.
In his previous Solicitors response to a request for Particulars dated 16 October 2016 Thomas Booler noted that there was no previous accidents or incidents. They listed his injuries as injuries to the neck, left shoulder and back which I take to be soft tissue injuries.
In the Personal Injury Claim Form dated 20 July 2015 which I assume to have been filled out by the Claimant’s then Solicitors, given the neat handwriting, the injuries complained of were:
·Neck whiplash whole.
·Back middle/lower.
·Buttocks/tailbone whole.
·Shock anxiety.
·Depression.
·Fear/phobia of cars.
A diagram that accompanied the description of the injuries at question 22 showed the front portion of the Claimant’s body as having pain around the clavicle region either side of his neck and on the back view suggesting pain from the thoracic region down to the buttocks. The medical certificate that was attached to the Personal Injury Claim Form signed by Dr Hanni Abdelghani GP dated 19 June 2015 suggested that he had the following injuries:
·Neck pain with radiculopathy.
·Back and buttock pain.
·Anxiety.
I note that there was no reference to the left arm or shoulder. Nor is there any reference to the inguinal hernias which have caused the Claimant much distress and were diagnosed before the accident and treated with surgery after the accident. Further no psychological injury is now alleged.
Since the accident the Claimant presented at numerous different medical practices.
Of interest to me was that he presented to Dr Abdelghani GP on 7 July 2014 complaining of cervical spine tenderness as well as pain in multiple other bodily regions but did not mention the subject accident.
On 25 April 2015 he attended Campsie Medical Centre complaining of chest, shoulder, and upper back pain for more than one week with no recent strain or injury but with no mention of the subject accident.
On 28 May 2015 he presented to Quigg Street Medical Centre with a history of back pain and polymyalgia (rheumatic pain). Again, no reference to the subject accident.
On 11 June 2015 he underwent a CT scan of his cervical spine which showed no abnormalities.
On the same date imaging of the lumbar spine showed disc bulging but with no nerve root impingement.
On 1 August 2015 he presented to Isra Medical Services with pain in his back and buttocks radiating to his lower limbs. He advised his pain commenced a few days prior after lifting a heavy object with his friend.
On 21 September 2015 he presented to Quigg Street Medical Centre with major depression present for 2 weeks with no mention of the subject accident.
On 8 October 2015 he was discharged from Canterbury Hospital where he had presented with a left-hand injury. He told hospital staff that he had slipped and fallen, landing on both arms and forearms.
On 16 October 2015 he attended Campsie Medical Centre with a suspected fracture of the left hand however later imaging showed no fracture.
An ultrasound scan of the Claimant’s left shoulder performed on 15 December 2015 showed evidence of tendonitis of the supraspinatus tendon but otherwise no significant abnormalities.
The Insurer further stated that on 1 February 2016 Dr Abdelghani provided a report to the Insurer confirming the Claimant did not mention any injuries resulting from the subject accident until 5 June 2015 that is over a year after the subject accident occurred. Dr Abdelghani believed the Claimant developed symptoms as a result of muscle strain of the cervical and lumbar spine areas. This seems to be at odds with the clinical notes produced by A-to-Z Medical Centre Lakemba, a practice in which Dr Abdelghani is a member. His clinical notes of 5 June 2015 report on the accident on 25 May 2014. However, a colleague had also reported on 7 July 2014 from the same practice where the Claimant had attended because of cervical spine and tenderness and restrictions of movement as well as back pain with sciatica and joint pain with restricted movement. No reference was made to the motor vehicle accident as such but the diagnosis was as follows:
·Back and buttock pain.
·Right arm.
·Left thigh injury.
·Left shoulder pain.
·Whiplash injury.
That attendance is about 6 weeks post-accident.
But the Claimant had attended a GP with bad handwriting whose name is not disclosed at JMD Medical Centre at Marrickville.
Medical records show numerous attendances upon various doctors including surgeon Professor Berney who noted that the Claimant been complaining of groin pain for at least 2 years before the accident, and which pain continued long after surgery by Dr Berney. I therefore conclude that the bilateral inguinal hernias were not as a result of the subject accident.
From at least November 2016 the Claimant admitted to taking Endone, Xanax, and Valium as well as Benzedrine and opioid abuse generally because of his “pain everywhere” which he was purchasing from the street. He was also smoking marihuana daily but he refused to attend a pain clinic and did not want to see a Psychologist or a Psychiatrist.

WHAT IS THE NATURE AND EXTENT OF THE CLAIMANT’S INJURIES?

The Claimant is his own worst enemy. He describes acute back pain since the accident.
He has been examined by 3 expert doctors. His former Solicitors sent him to Dr Yukkai Lee in August 2016.
The Insurer referred him to Dr Ray Wallace Orthopaedic Surgeon In November 2016 and more recently have referred him to Dr Keller Occupational Physician in September 2023.
In recording his history, he stated to Dr Lee that he was in so much pain that he went to see a doctor the following day. The records of JMD Medical Centre at Marrickville bear this out as there is a recording from an unknown doctor that on the day following the accident namely on 26 May 2014 he attended at the clinic and reported on the accident and his pain.
Unfortunately, by the time he got to Drs Wallace and Keller he was reporting to them that he didn’t see his doctor for some weeks, at least that is the history that they have taken. That history is clearly incorrect.
Dr Lee who examined the Claimant 2 years and 3 months post-accident noted that he was tender around the left shoulder and had restricted range of movement of the left shoulder. He gave a diagnosis of mild rotator cuff injury to the left shoulder and that gave rise to 5% whole person impairment.
With respect to his lower back Mr Malachi gave a history of quite severe back pain. Dr Lee noted that there were mild bulging discs at L2/3 down to L4/5 on a CT scan of the lumbar spine taken on 10 June 2015.
He noted that while Mr Malachi had had some physiotherapy to his upper body and shoulder, he had not allowed anybody to touch his lower back because of the pain. Dr Lee opined that he should now be given proper physiotherapy to his lower back at a cost of about $1,000. I note that was never done.
With respect to the cervical spine Dr Lee found that although there was tenderness there was no restriction and therefore his whole person impairment assessment was 0%.
With respect to the lumbosacral spine, he did note tenderness at around the L5 region with muscle spasm and some restriction of movement. He diagnosed DRE Category 2 and with a whole person impairment rating of 5%. Thus, a total of 10%.
Dr Wallace noted that Mr Malachi was unable to afford treatment although he visits his local medical officer once a month with regard to his spinal condition. In November 2016 he was taking Endone, Valium, Ibuprofen and Panadol. He took a history from the Claimant of persisting pain at the L3/4/5 spinus process radiating to the paravertebral region bilaterally. Examination of the lumbar spine showed tenderness at L3/4 but otherwise his range of movement etc was normal. He therefore diagnosed the Claimant as having musculoligamentous strain to the lumbar spine now resolved and the same with the cervical spine now resolved.
Under a heading Causation he noted that Mr Malachi had suffered musculoligamentous strain injuries at his cervical and lumbar spine which had settled within 6 months of his injury. There is no previous history taken or opinion that these injuries had settled within 6 months and I question why Dr Wallace came to that opinion. He obviously thought he was 0% whole person impaired.
The Claimant saw Dr Andrew Keller in September 2023 he complained that his back was intermittent but up to 10/10 in intensity. The pain is aggravated by home duties and radiates into his left foot. He had limited tolerances. He was able to do the cooking and cleaning but can only offer psychological support for his father who is independently mobile. Range of movement was normal for both the cervical and lumbar regions. He said that he was much fitter now than before and that he had significantly improved in the last 2 years. He reported that he had had a significant battle in the past and currently when he took Panadeine Forte or Endone for exacerbations and had difficulty ceasing them.
Dr Keller stated that it was not possible for him (Dr Keller) to state whether he suffers pain. Given that this is a subjective issue, that is understood. He noted age related spondylosis that may cause him intermittent symptoms but his presentation on that day showed a full range of motion in the neck and back without radiculopathy. His diagnosis was that “it is plausible that he suffered a lumbar spine soft tissue strain temporarily exacerbating pre-existing lumbar spine degeneration”, he believed that the injury had resolved in the 9 years since the accident.
Mr Malachi continues to complain of severe pain in his back for which he blames the subject motor vehicle accident. Although this is a subjective complaint and there are little objective findings nonetheless the impression I have is that Mr Malachi has continued to complain about his back ever since the accident and has been careless and haphazard in his treatment of the pain he has been experiencing. In particular he has obviously abused opiates, even resorting to buying them off the street, in order to alleviate his subjective complaints of pain.
I do not know why his former Solicitors are no longer acting for him. I am aware that the firm of Thomas Booler Lawyers went through a tumultuous time in or about 2016 including unsubstantiated complaints made against their Principal Mr Marcel Joukhador who as a result lost his practicing certificate and then had it reinstated years later.
If Mr Malachi had been better directed by a Solicitor and disciplined in the way in which he approached his claim then the findings may have been different.
However, given the only evidence that I have I can only conclude that Mr Malachi did suffer a soft tissue injury particularly to his lower back, which may or may not have been an exacerbation of a previous weakness, but nonetheless meant that he experienced severe pain and weakness for many years.
However, dealing with the evidence as best I can at some time since the accident in 2014 and today his back injury has either resolved or should have resolved if he had had the appropriate treatment. Certainly, the soft tissue injury to his neck has resolved; the soft tissue to his left shoulder has not been properly examined, and the soft tissue injury to his lower back persists.

PAST AND FUTURE ECONOMIC LOSS

The Claimant apparently worked at KFC for several weeks in 2011. Since that time, he has not ever worked again. At the time of the accident, he was a career receiving benefits from Centrelink, to assist his father with whom he apparently lived. That continues.
In my assessment but for the accident the claimant would eventually have obtained some work, whether in the past, while also caring for his father, or at some time in the future when his father’s need for caring ceases.
But in my assessment, he will be at a disadvantage in the open labour market because of his lack of an employment record, but more importantly because of his back injury.
I could make an award for any amount between $1 and thousands of dollars. As previously mentioned, the claimant has not been provided with proper treatment, either by his treaters or the insurer. In addition, although he has sought treatment from time to time he has been careless in persisting with treatment and seeking treatment.
I award nothing for past economic loss, but $50,000 for the future for the reasons set out above.

PAST TREATMENT EXPENSES

The Insurer has not paid for any past treatment expenses despite an obligation to do so from the time they admitted liability on 5 October 2016.
The Insurer notes that there is a deemed Medicare Notice on file which expired on 22 May 2016 totalling $2,468.55. They correctly point out that it is the Claimant who is to establish which of those expenses are causally related to the subject accident and as there has been no submissions I make no findings as to any treatment expenses charged to Medicare.
An amount of $295.80 was charged to Medibank the Claimant’s private health insurer for physiotherapy. The Insurer states that the treatment was not reasonable and necessary and was only provided 2 years post-accident and therefore unlikely to be of any benefit.

I note Dr Lee thought physiotherapy would be of benefit and therefore I allow $295.80.
The Insurer notes that the Claimant has purchased drugs “off the street”. No evidence is provided for the expense. In any event damages cannot be awarded for illegal transactions and I make no allowance.
Therefore, the total of past treatment expenses is $295.80.

FUTURE TREATMENT EXPENSES

Again, the Claimant has not particularised any claim for future treatment. Both Insurer’s doctors Wallace and Keller do not recommend any funds for future treatment. They note that passive physical therapies would be appropriate.
I note that Dr Lee opines that $1,000 of treatment expenses for physiotherapy to treat the Claimant’s lumbar spine (which to date has not been treated) would be of benefit to the Claimant. I allow that sum even though it is 9 years since the subject accident.
I also allow a further $1000, for over-the-counter analgesics in the hope that the claimant no longer buys illegal drugs off the street. My reasoning is that the claimant has demonstrated a need for pain killers and anti-inflammatories.

PAST AND FUTURE CARE AND ASSISTANCE

The Claimant has not particularised any claim for past care and assistance.
It was noted that immediately after the accident the Claimant’s then girlfriend was providing assistance to the Claimant but the amount of time on a weekly basis or the period over which it extended has not been particularised and therefore, I can make no allowance.
During the whole of the time from prior to the subject accident to date the Claimant has in fact been paid a carers allowance to look after his father. In those circumstances it would be wholly inappropriate for the Claimant to be compensated for care that has neither been particularised nor provided.

ASSESSMENT OF DAMAGES SUMMARY

I assess the claim as follows on the findings set out above:

Non-Economic Loss  $0
Economic losses
·Past loss of earnings (incl. superannuation and Fox v Wood)              $0
·Future loss of earnings (incl. superannuation)  $50,000
·Past treatment  $295.80
·Future treatment  $2,000
·Past gratuitous care  $0
·Future gratuitous care  $0

TOTAL DAMAGES ASSESSED $52,295.80

COSTS AND DISBURSEMENTS

I assess the Claimant’s legal costs and disbursements in accordance with s 149 and 150 of the Act and the Motor Accidents Compensation Regulation 2015 in accordance with the attached sheet and my reasons for any disputed claims are as follows:
a.I allow the regulated fee of Dr Lee, IME
b.I intend to allow costs for Stages 2,3 and 4, as suggested by the insurer.
c.I don’t allow the non-attendance fee, as that can’t be attributed to the insurer.

[2024] NSWPIC 536

30 September 2024