AAI Limited t/as AAMI v Simpraga

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	AAI Limited t/as AAMI v Simpraga [2025] NSWPIC 186
CLAIMANT:	Stevo Simpraga
INSURER:	AAI Limited trading as AAMI
MEMBER:	Susan McTegg
DATE OF DECISION:	5 May 2025
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; motor vehicle accident; claims assessment; damages for economic loss; damages for future economic loss; most likely future circumstances; pre-existing condition; 70-year-old claimant was injured in a motor vehicle on 2 January 2022; injuries to cervical, thoracic and lumbar spine, both shoulders, left knee; both hips, anxiety and depression; prior accidents; following 2016 accident compensated on basis no past or future work capacity until age 67 years; Held – no capacity to maintain longer term employment where not fully recovered and given age; buffer of $20,000 for impairment past earning capacity; no change in most likely future circumstances.
DETERMINATIONS MADE:	CERTIFICATE Issued under s 7.36(1) of the Motor Accident Injuries Act 2017 Assessment of Claim for Damages made in accordance with s 7.36 of the Act 1. On the issue of liability for the claim, the AAI’s insured owed a duty of care to the claimant, breached that duty of care and the claimant sustained injury loss and damage as a result of that breach of duty. 2. Under ss 7.36(3) and 7.36(4) of the Motor Accident Injuries Act2017 (the MAI Act), I specify the amount of damages for this claim as $20,000. 3. The amount of the claimant’s costs, taking into account the amount of damages assessed in respect of this claim, assessed in accordance with the MAI Act is $12,541.10 inclusive of GST. 4. Attached to this certificate are reasons for my assessment.

REASONS FOR DECISION

INTRODUCTION

On 3 January 2022 Mr Stevo Simpraga (the claimant) was a passenger in a motor vehicle stopped by the side of the road at Moss Vale in heavy rain when the insured vehicle collided at speed with rear of his vehicle (the accident).
The claimant alleges he sustained the following injuries:
(a)    injury to the neck;
(b)    injury to the thoracic spine;
(c)    injury to the lumbar spine;
(d)    injury to both shoulders;
(e)    injury to hips;
(f)    injury to the left knee, and
(g)    anxiety and depression, symptoms consistent with post-traumatic stress disorder.
I am asked to assess damages pursuant to the provisions of the Motor Accident Injuries Act 2017 (the MAI Act) in respect of the injury sustained by the claimant.
AAI Limited trading as GIO (the insurer) is the relevant insurer with liability to pay any damages to the claimant under the MAI Act.
In a liability notice issued under s 6.20(1) of the MAI Act dated 1 February 2024 the insurer has admitted liability for the claim.
The claim was listed for assessment conference on 28 March 2025.
At the outset of the assessment conference the claimant sought to amend the claim for future economic loss. The claimant sought to claim future economic loss to age 72 years. The insurer did not object to this amendment.
The following issues were in dispute:
· whether the claimant had any residual earning capacity prior to the injury, and
· what were the claimant’s most likely future circumstances had the accident not occurred.
I am asked to assess damages in respect of the following:
(a) past economic loss, and
(b) future economic loss.

THE EVIDENCE

The claimant is now 70 years of age. He was 66 years of age, nearly 67 years at the time of the accident on 2 January 2022. He has been in receipt of the Aged Pension since
2 March 2022.

Statements of the claimant

Statement dated 21 February 2017

The claimant provided a statement dated 21 February 2017 in respect of the 2016 accident.
Mr Simpraga stated he arrived in Australia on 10 March 1999. He worked as a formwork carpenter/labourer until he sustained injury in a workplace accident on 14 December 2009. He described injuries to his cervical spine, right shoulder, left shoulder and lumbar spine. He reported he resumed work as a gyprocker in July 2012.
The claimant described his involvement in a motor vehicle accident on 16 March 2016. He states he injured his head, neck, left shoulder, right shoulder, left arm, left hip, thoracic spine, lumbar spine and left knee. He was still unfit for work at the time he made this statement.

Statement dated 19 November 2024

In his statement dated 19 November 2024 Mr Simpraga disclosed two prior accidents, a workplace accident in about 2009 when he injured his low back and a shoulder. He brought proceedings and states he was off work for about three years. Mr Simpraga returned to work as a gyprocker until he sustained injury in a motor vehicle accident on 16 March 2016.
Mr Simpraga states he had a claim which was settled in his favour.
Mr Simpraga denied he was injured in a car accident in 2003 or that he fell off a ladder in 2009.
In terms of his general health Mr Simpraga reported he had Type II diabetes which is controlled by medication.
The accident on 3 January 2022 occurred when he was a front seat passenger in a vehicle hit from behind. He stated he has been suffering anxiety and depression since the accident with flashbacks and disturbed sleep. He also described severe physical injuries.
He states he consulted his general practitioner Dr Tomka the following day, although it should be noted Dr Wong asserts the first consultation following the accident was on
10 January 2022. Certainly, the clinical notes of Dr Tomka disclose a consultation on
10 January 2022, although the claimant’s wife Bozana Simpraga states she took her husband to see Dr Tomka the day after the accident.
Mr Simpraga states he had not worked since the 2016 accident other than a trial he says he completed with a formwork carpenter Sasha Uzelac in about April or May 2021 which lasted for a couple of days and for which he was paid $50 per hour. He states the business then went into lockdown due to the COVID-19 pandemic but had that not occurred he would have continued working. Mr Simpraga asserts it was his intention to work until at least 70 years of age. Mr Simpraga asserts he would have earnt $1,500 net per week if he had been able to undertake work as a formwork carpenter and gyprocker.
Mr Simpraga states as a result of the accident he is totally incapacitated for work.
Mr Simpraga provided a supplementary statement dated 26 March 2025. He stated the agreement he had with Mr Uzelac was he would be paid $50 per hour under an ABN. He stated:
“I had worked for Mr Uzelac in the past and he was aware of my capabilities but he told me that due to my previous injuries he wished to observe my work to ensure I could work to the same standard as before.”
…I do recall being paid for the gyprocking work I performed for Mr Uzelac. I recall being paid in cash.”

Motor vehicle accidents in 2003

The claimant did not reference his involvement in any accidents other than the 2009 workplace injury and the 2016 accident in his statements.
The claimant provided updated submissions dated 26 March 2025 which states:
“The claimant understands there is an allegation that he was involved in another motor vehicle accident in 2003. He denies this.”
However, it is apparent from the available records that Mr Simpraga sustained injury to the neck and upper back in a motor vehicle accident on 22 February 2003 and injury to the head and shoulders in a motor vehicle accident on 11 March 2003. Mr Simpraga pursued claims arising out of each of these accidents and was apparently represented by Gajic and Co.

Oral evidence of the claimant

Mr Simpraga stated his current problems were with his left shoulder, his hips, his back and neck. He also stated he cannot sleep, and he dreams of accidents. He stated there is no period when he is without pain, but the more severe pain occurs about twice a week and when he takes the painkillers prescribed by Dr Tomka. He reported he saw Dr Tomka regularly.
He said because of pain in his shoulder, hips and back he cannot use his arm, he cannot do anything, he cannot walk, he gets tired and must stop. Mr Simpraga said he cannot work because he is in pain. He confirmed he is in receipt of the aged pension.
Mr Simpraga was questioned about his involvement in an accident in 2003. He ultimately agreed he was involved in an accident in 2003. However, when was asked if he complained of neck pain he said, “No I was working”. When asked if he complained of neck pain to
Dr Habib he replied “possible”. Mr Simpraga also agreed it was possible he complained about neck pain down his arms to Dr Reid in September 2004. Mr Simpraga initially stated he continued working after the 2003 accident although he subsequently agreed he may had stopped working for a short time.
I suggested there were, in fact, two motor vehicle accidents in 2003. Mr Simpraga agreed there was another accident which occurred in Mascot. When asked if he had pain after the first two accidents Mr Simpraga replied, “very little”. When asked where he experienced pain Mr Simpraga said he did not remember, and he agreed he did not have a good recollection of those two accidents.
Mr Simpraga was questioned about the 2009 workplace accident. He stated he had a little pain; he took sick leave, got better and went back to work. When he was reminded, he was off work for about three years Ms Simpraga said his absence was also because there was not much work at that time. Mr Simpraga denied he returned to work on light duties because he was unfit for heavy lifting, suggesting he would not have returned to work if he had big injuries.
In relation to the 2016 accident Mr Simpraga agreed it was a heavy collision, and he had neck pain, headaches, and pain to both shoulders. He also agreed his hips hurt after the 2016 accident, he had low back pain and problems with his left knee.
Mr Simpraga agreed he was anxious in traffic after the 2016 accident, and he experienced nightmares. However, he did not agree he was drinking more than a bottle of wine a night as recorded by Dr Kuljic. He stated he never drank wine.
Mr Simpraga agreed he applied for the Disability Support Pension (DSP) in 2016 because of the injuries to his knee, hip and back. He stated he was still on sick leave at that time but did not agree he had no intention of returning to work.
Mr Simpraga was asked about the evidence he gave at the assessment conference in 2018 in respect of his claim arising out of the 2016 accident. When asked whether he said that his symptoms were not getting better Mr Simpraga said he was scared they would not get better, but then stated his symptoms were getting better at that stage. However, when it was put to him that he did not say his symptoms were getting better at the hearing in 2018 he stated, “that was in 2018, but in 2019 and 2020 getting better”.
Mr Simpraga stated he returned to work in 2021. He said he worked at Mr Druitt Westfield in March in gyprocking and carpentry work. He said he worked three days and then Corona occurred.
Mr Simpraga said he knew the boss, Sasha Uzelac. He said he worked with him about 10 years ago on other jobs including at Hornsby and at Nowra Airport. He said he knew
Mr Uzelac now had his own company. Mr Simpraga described the work with Mr Uzelac as a work trial to see if he could work because he had been off work.
Mr Simpraga said he and Mr Uzelac were not friends, but he had seen him between 2015 and 2021 in Liverpool, at parties and socially “a little” outside work.
In relation to domestic chores Mr Simpraga stated up until 2016 he undertook chores with his wife but after 2016, he was restricted. Mr Simpraga conceded that he was not doing heavy housework at the time of the accident, only light tasks. When asked how he could return to formwork if he was not able to do house chores Mr Simpraga stated he had recovered 90%.
Mr Simpraga stated he was paid cash for the work trial. He worked eight hours a day for two or three days. When asked what work he did Mr Simpraga replied “everything, gyprock, carpentry” and noted the boss was happy he had all the tools.
When asked whether he looked for any other work after the work trial in March 2021 and before the accident in January 2022, Mr Simpraga replied “I don’t remember I did”.

Evidence of Bozana Simpraga

Statement dated 19 November 2024

Ms Simpraga is the claimant’s wife. She reported she took her husband to see Dr Tomka on 3 January 2022, the day after the accident and not on 10 January 2022 as reported by
Dr Tomka.

Oral evidence of Bozana Simpraga

Ms Simpraga has been married to the claimant for 35 years. They have four children and seven grandchildren.
Ms Simpraga stated the claimant did not have any problems with alcohol. She stated he only takes one glass of wine or beer after lunch, and she could only recall three or four times when he had drunk more over 35 years of marriage.
Ms Simpraga stated after the 2016 accident the claimant gradually started to do heavier jobs in about 2019, including mowing, laundry, cleaning, shopping and some repairs around the house. Ms Simpraga said when her husband could not mow the lawn, they paid someone to do so, and that was the case since the end of 2023.
Ms Simpraga stated following the 2016 accident her husband’s recovery was not 100% but only 80 or 90%. She said he was off work until 2021 when he started to work. Ms Simpraga said he wanted to see if he could work.
Ms Simpraga stated at the time Mr Simpraga made application for the DSP in 2017 he wasn’t sure he could go back to work because he did not have full capacity. She estimated he could not work eight hours, maybe only four hours. Ms Simpraga stated the claimant could not do light work because he couldn’t speak English. She said he did the 2021 work trial to see if he could work.

Evidence of Sasha Uzelac

Statement dated 2 November 2024

Mr Uzelac provided a statement dated 2 November 2024. He reported he owns a gyprocking business and Mr Simpraga approached him in 2021 for some work as a gyprocker. He said he agreed to give him a trial and he worked for him for a couple of days in 2021.
Mr Uzelac said the claimant was quite good but he did not stay on because of the COVID lockdown and the need to stop working. He stated if COVID had not occurred the claimant would have continued working with him. He stated he had employed him in the past and knew he was a good worker.

Statement dated 26 March 2025

In a supplementary statement dated 26 March 2025 Mr Uzelac stated he had not been able to find any record of payment relating to the claimant’s employment but considered it was possible he paid him in cash.
He stated he recalls being satisfied with the claimant’s ability to work. He said it was also important that Mr Simpraga had all the tools needed for gyprocking and formwork carpentry work.

Oral evidence of Sasha Uzelac

Mr Uzelac has worked in the construction industry since 1989 or 1990. He speaks Serbian. Mr Uzelac said he first met the claimant on a job site about 10 years ago and otherwise he occasionally saw him in the community, at the Serbian church or in Liverpool.
Mr Uzelac said he worked with Mr Simpraga on two or three jobs where he had been the foreman, nominating jobs at Nowra and Hornsby Hospital.
Mr Uzelac said in 2021 he agreed Mr Simpraga could work for him because he needed guys. He was unsure whether the contact was initiated by himself or Mr Simpraga. He said at that time he had about 10 contractors working for him.
Mr Uzelac said he was not aware of any physical difficulties Mr Simpraga had and was not aware he had been injured in a motor vehicle accident in 2016. Nor was Mr Uzelac aware
Mr Simpraga had not worked between 2016 and 2021.
Mr Uzelac said he did not work alongside the claimant, but he walked around the site to check the work.
Mr Uzelac said he paid the claimant by cash, a cash cheque, or payment by EFT. He said he only worked two or three days, and he probably gave him cash on the day. He said he would have paid him $45 to $50 per hour.
Mr Uzelac said the construction industry totally shut down in March 2021. Mr Uzelac said he had been happy with the claimant’s work.
Mr Uzelac did not contact the claimant after the restrictions were lifted to offer him work.

Certificate of Claims Assessor Goudkamp

Claims Assessor Goudkamp issued a certificate dated 5 July 2018 in respect of the 2016 accident.
Claims Assessor Goudkamp reported Mr Simpraga had suffered unremitting pain to his left shoulder and back including his thoracic and lumbar spine since the 2016 accident which had prevented him from resuming work. He reported the claimant had become depressed, sad and unmotivated.
He determined the claimant had no past or future capacity for work as a result of the 2016 accident particularly given his age and the type of heavy work in which he has always been engaged. He was satisfied the claimant was earning an average of $1,000 net per week and assessed damages for past and future economic loss until age 67 years on that basis. He also awarded damages for future commercial care for lawn and gardening maintenance services to age 80.

Centrelink records

Records produced by Centrelink confirm that the claimant has been in receipt of the age pension since 2 March 2022.

Application for personal injury benefits

In the Application dated 28 January 2020 the claimant described the accident as follows:
“On the way from Goulburn to Sydney near Moss Vale on Hume Highway I was a front seat passenger in a car driven by a friend. Because of a heavy rain condition we had to stop aside the road as many other vehicles did in order to avoid any dangers with driving in poor visibilities. While stationary another car coming from behind and with high speed hit our car from behind. From the impact our car was displaced app 10 metres.”
Mr Simpraga described his injuries as injuries to his neck, upper and lower back, both shoulders, both hips and left knee.
In response to the question “Were you suffering an illness or injury affecting the same or similar parts of your body at the time of the accident?” Mr Simpraga checked the box marked No.

Pre-accident medical evidence

The records produced by Hammondville Medical Centre include clinical notes from
14 December 2000 to 2 September 2010. The claimant complained of back pain, neck pain, bilateral foot pain, left knee pain and left shoulder pain. The records record the claimant was involved in a motor vehicle accident on 22 February 2003.
A discharge summary of Prince of Wales Hospital dated 15 December 2009 refers to the claimant’s attendance following a fall. He fell landing on his left knee with a metal frame hitting his back. He reported pain in the thoracic and lumbar spine as well as the left knee.
In a report dated 6 April 2010 Dr Matthew Giblin advised that a bone scan showed degenerative arthritis at L4 and in both AC joints and both greater trochanters. An X-ray of his right shoulder confirmed arthritic change of the AC join. An MRI scan of the whole spine showed a small right disc protrusion at C5/6 with no significant nerve root pressure and minor disc bulging in the lumbar spine at L4/5 and L5/S1. An MRI scan of the left knee confirmed an old ACL injury and a small peripheral horizontal tear of the body of the medial meniscus.
On 26 August 2010 Associate Professor John Ireland, orthopaedic specialist noted that the claimant injured his back and right shoulder in the workplace injury on 14 December 2009. He also had pain and swelling of the left knee. He thought the claimant had sustained a tear of the meniscus but also noted an old ACL (anterior cruciate ligament) injury. A/Prof Ireland performed an arthroscopy of the claimant’s left knee.
In a report dated 8 November 2010 Dr Henry Lam, pain medicine specialist, opined that the claimant suffered from a chronic persistent pain condition.
On 15 December 2010 Dr Giblin noted that the claimant underwent a left knee arthroscopy with some benefit. The claimant was complaining of bilateral shoulder discomfort.

Following a motor vehicle accident on 16 March 2016 (the 2016 accident) the claimant underwent physiotherapy with Holistic Physiotherapy for injuries to his neck, shoulders, back, left elbow, left knee and left hip.
An MRI of the cervical spine of 18 May 2016 noted cervical spondylosis with degenerative changes at C5/6.
An MRI of the right shoulder of 18 May 2016 reported:
“hypertrophic AC joint arthropathy. Minimal subacromial bursitis. Mild subscapularis and supraspinatus tendinopathy. Posteroinferior as well as superior labral tear.”
An MRI of the lumbar spine on 19 May 2016 revealed mild lumbar spondylosis.
On 31 October 2016 Dr Giblin noted that an MRI of the lumbar spine showed an annular tear at the L4/5 level and bilateral facet arthropathy at L3/4 and L4/5. An MRI of the right shoulder showed wasting of the teres minor and AC joint arthropathy and subacromial bursitis.
On 1 February 2017 Dr Drew Dixon, orthopaedic surgeon concluded the claimant was unfit for manual work. He diagnosed the following injuries from the 2016 accident:
·        head injury without loss of consciousness;
·        neck strain injury with occipital headaches and left shoulder brachialgia;
·        shoulder strain and subacromial bursitis;
·        low back strain;
·        left hip trochanteric bursitis, and
·        aggravation of left knee injury.
On 9 October 2017 Medical Assessor Wijetunga certified a 16% whole person impairment in respect of injuries to the cervical spine, the lumbar spine, the left shoulder and the left hip arising out of the 2016 accident.
Following an assessment on 3 January 2018 Dr Blagoje Kuljic, psychiatrist reported a complex psychiatric history of post-traumatic stress disorder, major depression and alcohol abuse caused by traumatic war experiences and a motor vehicle accident.
On 22 February 2021 the claimant underwent an X-ray of the pelvis and both hips.
On 23 February 2021 the claimant consulted Dr Chandra Dave, orthopaedic surgeon in respect of pain over the left greater trochanter consistent with trochanteric bursitis. He described the claimant as a retired form worker.
On 22 July 2021 the claimant consulted Dr Tomka in respect of lumbar back pain. On
9 August 2021 Dr Tomka reported the low back pain was better.

Post-accident treating medical evidence

On 10 January 2022 Dr Tomka reported the claimant’s involvement in the accident on
2 January 2022. Dr Tomka reported Mr Simpraga complained of pain in his neck, both shoulders, the upper and lower back and the left knee. He also complained of dizziness and headaches. On examination Dr Tomka noted limited range of motion in the neck and both shoulders and muscle spasm in the upper and lower back. He reported the left knee was swollen and tender.
An ultrasound of the shoulders on 17 February 2022 revealed bilateral supraspinatus tendinosis, without a tear and subacromial bursitis.
An MRI of the whole spine on 17 February 2022 revealed a posterior central/right paracentral disc protrusion at C5/C6 causing mild canal stenosis and potential impingement of the right C6 nerve root. In the thoracic spine there was a Schmorl’s node at T8 with no structural abnormality. In the lumbar spine there was a minimal disc bulge at L1/2 without stenosis, facet arthrosis at L3/4 and at L4/5 a broad disc bulge with mild canal stenosis and indentation of the right thecal sick with slight lateral recess stenosis. There was no abnormality at L5/S1.
In a report dated 3 December 2024 Dr Tomka reported he has continued to treat
Mr Simpraga every month from 2022 to 2024. Dr Tomka diagnosed the following injuries as a result of the accident:
·        post-traumatic mechanical derangement of the cervical, thoracic, and lumbar spine due to musculo-ligamentous sprain associated with pain, stiffness and muscle spasms;
·        chronic pain and restricted range of movement in both shoulders;
·        post-traumatic symptoms secondary to contusion in both hips;
·        post-traumatic tenderness and swelling with chronic pain in the left knee, and
·        vertigo symptoms that developed post-accident.
Dr Tomka reported there were no pre-existing injuries that could explain the current symptoms, notwithstanding he has been the claimant’s treating general practitioner since January 2015. He reported medical imaging confirmed findings compatible with the clinical presentation including aggravation of underlying age-appropriate degenerative changes.
Dr Tomka concluded, considering the claimant’s persistent pain and physical limitations, his age and his limited capacity for retraining he was permanently unfit for work.
Clinical notes of Holistic Physiotherapy show the claimant underwent physiotherapy treatment to his neck, shoulders, upper and lower back and left knee between
10 February 2022 and 11 December 2023.

Medico-legal reports

Dr Medhat Guirgis, orthopaedic specialist

Dr Guirgis provided reports dated 20 April 2023 and 16 December 2024. He reported a work-related injury to the claimant’s back in 2009 forcing him off work for three years. He reported the 2016 accident forced him off work for two years and then COVID-19 hit, and he had been out of work since 2016. He also reported at the time of the accident the claimant was going to re-start working but for the injuries sustained in the accident.
Dr Guirgis reported injury caused by the accident to the cervical spine, the right shoulder, the left shoulder, the lumbar spine, both hips and the left knee.
Dr Guirgis diagnosed the following injuries caused by the accident:
·        further musculo-ligamentous sprain/strain which had triggered and aggravated the effects of underlying asymptomatic age-appropriate degenerative changes;
·        post-traumatic onset of symptoms and signs of left L5 radiculopathy including positive tension signs on the left side, grade IV weakness of the left extensor hallucis longus, and sensory blunting in the left L5 territory in the foot;
·        further injuries to his shoulders causing ongoing symptoms and signs of rotator cuff syndrome with impingement;
·        post-traumatic onset of symptoms and signs of greater trochanter pain syndrome in both hips, and
·        injury to the left knee triggering the symptoms and signs of underlying asymptomatic age-appropriate degenerative changes in the patellofemoral compartment.
Dr Guirgis opined the claimant was permanently unfit for work because of his accident-related injuries.

Mr Kim Patrick, vocational assessor

Mr Patrick assessed the claimant and provided a report dated 4 December 2014. He appeared unaware of the claimant’s earlier injuries and absences from work and reported:
“Mr Simpraga was able to gain work after arriving in Australia in 1999, He started heavy manual work as a “roofer” then moved on to heavy manual work as a Formworker …progressing to Formwork Carpenter work on construction sites. He continued in this occupation up until the Covid-19 pandemic forced him off work then before the MVA he was offered formwork with an employer of which he was about to commence.”
And further:
“At the time of the MVA he had been off work since 2019 due to Covid, however he had received an offer (verified document) to return as a Formwork Carpenter. Wanted to work to at least 72 years of age to get some superannuation.”

Dr James Powell, orthopaedic surgeon

Dr Powell was qualified by the insurer and provided a report dated 30 January 2024. He noted Mr Simpraga reported constant pain about the neck region radiating to both trapezius regions and into the upper limbs down to the hands. He also reported episodes of tingling and numbness in the fingers which occur once a day and last for several minutes. Dr Powell reported pain about the right shoulder region and difficulty performing activities using his right upper limb, such as washing or elevating the upper limb to hold objects. Dr Powell reported similar symptoms in the left shoulder, though of greater intensity. He noted the pain radiated into the left upper limb. Dr Powell reported constant pain in the lower lumbar region which radiated to both hip areas, worse on the left. He also reported pain in the right and left hip regions which increases with prolonged sitting or standing. Mr Simpraga can only walk for 100m before the hip symptoms increase and he needs to rest. Mr Simpraga reported pain about the left knee with standing and walking. He finds it difficult going downstairs and feels that his knee gives way on him.
Dr Powell advised it was difficult to give a specific diagnosis. He considered there may have been an exacerbation of underlying cervical spondylosis in the cervical spine. He found no diagnosable injury in the shoulders with pain likely to be referred from the cervical spine. He thought pain symptoms in the lumbar spine were non-specific but most likely related to pre-existing lumbar spondylosis. There was no pathology identified in the hips and the claimant may have suffered a superficial soft tissue contusion to the left knee which has resolved.
Dr Powell reported the claimant had been working as a carpenter for three or four years at the time of the accident without restrictions but had not returned to work since the accident. However, Dr Powell noted this was inconsistent with the claimant’s statement and the history recorded by Medical Assessor Wong. Dr Powell considered the claimant would have been unfit for general carpentry work for one to two weeks post-accident and thereafter would have been able to return to suitable duties, limited by persisting cervical symptoms. Given the persisting cervical symptoms Dr Powell considered Mr Simpraga would be restricted in his work duties.

Dr Thomas Rosenthal, occupational physician

Dr Rosenthal was qualified by the insurer and provided a report dated 5 February 2025. He noted the long history of neck, back and shoulder conditions dating back to 2010. He noted the claimant was found to have permanent impairment in multiple body parts from his 2016 accident having regard to the assessments of Dr Dixon and Medical Assessor Wijetunga.
Dr Rosenthal noted that the claimant’s prognosis in 2017 was poor. He concluded it was not clear the claimant had made a sudden recovery from chronic pain symptoms and based on the assessments of Dr Dixon and Medical Assessor Wijetunga he was unfit for work. Accordingly, he concluded the accident had not impacted on the claimant’s fitness for work.
He concluded Mr Simpraga may have developed soft tissue injuries to the cervical spine, thoracic spine and lumbar spine, and possibly the bilateral shoulders, bilateral hips and left knee caused by the accident. However, he considered those injuries had resolved and any ongoing complaints were due to the pre-existing conditions and pre-existing degenerative changes.
Dr Rosenthal found the claimant was unfit for manual work prior to the accident and that the accident had not impacted his fitness for work.

Medical Assessment Certificate

Medical Assessor Wong

Medical Assessor Wong issued a certificate dated 11 June 2024 in which he certified the claimant had sustained a 2% WPI in respect of injury to the left shoulder. Medical Assessor Wong did not have access to the pre-accident medical records. He reported the claimant’s back injury caused by the 2003 motor vehicle accident, the 2009 workplace injury when he fell off a ladder and was off work for three years and the 2016 accident which resulted in injuries to the right shoulder and back.
Medical Assessor Wong certified the claimant sustained the following injuries caused by the accident:
·        cervical spine – sprain;
·        thoracic spine – sprain;
·        lumbar spine – sprain;
·        left shoulder – contusion;
·        right shoulder -contusion;
·        left hip – contusion;
·        right hip – contusion, and
·        left knee – contusion.
Medical Assessor Wong found no specific pain or tenderness in the hips or the left knee. They were within normal limits and not rateable for permanent impairment. He reported some pain and reduced motion in the right shoulder but found no rateable impairment.
Medical Assessor Wong reported the claimant’s involvement in the 2016 accident and his return to work to “a lighter occupation” as a gyprocker in around 2020. He reported the claimant was unemployed at the date of the accident.

The reliability of the claimant’s evidence

I had the opportunity to assess the claimant during the assessment conference.
Mr Curran, counsel for the claimant submitted the claimant was credible and his evidence plausible. Mr Curran submitted the claimant had sustained significant injuries in the 2016 accident and had made a slow, steady and partial recovery over time. He submitted the claimant had an exemplary history of return to work after prior injuries. He disputed the claimant was opportunistic asserting that if he had any opportunistic intention, he would have attempted to return to work earlier.
Mr Nesbeth, counsel for the insurer submitted the claimant’s evidence was unreliable. He noted in 2016 Dr Giblin and Medical Assessor Wijetunga noted memory issues. Furthermore, there were clear inconsistencies in the histories provided by the claimant as recorded by medical practitioners. Both Dr Powell and Dr Rosenthal reported the claimant was working full time at the time of the accident.
I note Mr Simpraga initially denied any involvement in the 2003 accidents, although he was readily able to recall some details of each accident when questioned at the assessment conference. Indeed, in submissions dated 26 March 2025 his lawyers noted Mr Simpraga denied he was involved in another motor vehicle accident in 2003. In fact, it was not one but two motor vehicle accidents and, whilst the outcome is uncertain, it is apparent he was represented by Gajic and Co and pursued claims arising out of each accident.
Mr Simpraga also attempted to downplay the extent of the 2009 workplace accident. His evidence was he had a little pain, took sick leave, got better and went back to work. In fact, Mr Simpraga was off work for about three years following that injury.
It is difficult to equate the 2018 findings of Claims Assessor Goudkamp of total incapacity for work following the claimant’s involvement in the 2016 accident with the claimant’s evidence that his symptoms were getting better at that time, or alternatively that they were getting better in 2019.
There were inconsistencies in the medical reports as to the claimant’s work history in the lead up to the accident. Whilst I am cognisant of the need to treat accounts provided to medical professionals with caution it is surprising that both Dr Powell and Dr Rosenthal reported that the claimant was working full time without restriction at the time of the accident.[1] Furthermore, Kim Patrick, vocational assessor reported the claimant worked full time until he was forced to cease work due to COVID-19 although he thereafter received an offer to return to work as a formwork carpenter. Mr Patrick was clearly not aware the claimant did not work between 2016 and 2021.
[1] Mason v Demasi [2009] NSWCA 227.
I am satisfied the claimant attempted to downplay the impact of the earlier accidents in order to persuade me of his capacity to return to work and maintain employment as a formwork carpenter or gyprocker.
I found Mr Uzelac to be an honest and reliable witness who was satisfied with the claimant’s work performed over two to three days in March 2021. I also accept the evidence of
Mr Uzelac that he was not aware the claimant had not worked since 2016 or that he had sustained serious injury in a motor vehicle accident in 2016.
I am satisfied having regard to the corroborative evidence of Mr Uzelac and Ms Simpraga that the claimant was keen to return to work and that the work trial he undertook with
Mr Uzelac in March 2021 was to establish whether he had the capacity to maintain full time employment as a formwork carpenter and/or gyprocker.
I find the evidence of the claimant is unreliable and should be treated with caution.

The injury sustained by the claimant

Neither the claimant nor his wife alleged he fully recovered from the 2016 accident although it was suggested he had recovered 80 or 90%.
The medical evidence corroborates the assertion of a partial recovery. Notwithstanding the unremitting left shoulder and back pain referenced by Claims Assessor Goudkamp in his certificate dated 5 July 2018 there is no evidence of complaint in 2019 or 2020 and only limited complaint in the 12 months pre-accident. After undergoing an X-ray of the pelvis and both hips the claimant consulted Dr Dave on 23 February 2021. He diagnosed trochanteric bursitis of the left hip. The only other complaint was of low back pain on 22 July 2021 although on 9 August 2021 Dr Tomka reported the low back pain was better.
Following the accident there have been complaints of pain in both shoulders, both hips, the neck, the back and the left knee reported by Dr Tomka and Dr Guirgis.
Dr Rosenthal also found the accident had caused soft tissue injuries to the cervical spine, the thoracic spine, the lumbar spine, both shoulders, both hips and the left knee although he considered they had resolved, and any ongoing complaints were due to the pre-existing condition and underlying degenerative change. Dr Powell found the claimant may have exacerbated an underlying cervical spondylosis with referred pain to both shoulders. He considered any lumbar spine pain was non-specific and was most likely related to a pre-existing lumbar spondylosis. He found no pathology in the hips and only a superficial soft tissue contusion to the left knee which he considered had resolved.
Medical Assessor Wong did not have access to the pre-accident medical records but concluded the accident caused the claimant to sustain a sprain of the cervical, thoracic and lumbar spine, and contusions of both shoulders, both hips and the left knee. However, whilst he found pain and reduced range of motion of the cervical, thoracic and lumbar spine he found no pain or restriction of movement of the hips or the left knee. He also found some pain and restriction of movement of the shoulders, left more than the right.
There is significant overlap between the injuries alleged to have been caused by the accident and the claimant’s significant pre-accident injuries. I am satisfied on the balance of probabilities that the claimant sustained soft tissue aggravation of the underlying spondylotic condition of his cervical, thoracic and lumbar spine caused by the accident. Having regard to the certificate of Medical Assessor Wong and the treating medical evidence I am also satisfied the claimant sustained soft tissue aggravation of the pre-existing conditions in both shoulders, both hips and the left knee.
Dr Powell found the claimant would be restricted in his work duties. I accept the opinion of Ms Simpraga that Mr Simpraga is precluded from undertaking light duties due to his poor English. Having regard to the opinion of Dr Powell and the opinions of Dr Guirgis and
Dr Tomka I am satisfied having regard to the aggravation of his pre-existing condition caused by the accident that the claimant is now and has been since the accident unfit for work.

THE ASSESSMENT OF DAMAGES

Economic loss

The claim for damages is limited to economic loss.
In a letter dated 27 June 2024 the claimant’s lawyer particularised the claim for economic loss as follows:
“He last worked in 2017 as a formwork carpenter and went on the old age pension in 2022. He had intended to return to some form of employment in the building industry as a formwork carpenter but because of the accident the subject of this claim, he was unable to do so.
Further he was not able to work from February 2020 because of the Corona Virus in any event, however, he now makes a claim for loss of earning capacity as a formwork carpenter. Formwork carpenters earn on average $2.000 per week clear. He claims a loss of $50,000 for economic loss and so amends his claim. He also says that he would have worked to at least age 72.
Wage Loss
$2,000 per week from 3 January 2022 for 2.5 years to 1 July 2024 = 130 weeks: $260,000.”

Noting the claimant is now 70 years of age the claim for future economic loss is limited to two years until age 72.
The insurer submits the claimant’s most likely future circumstances but for the accident were that he would not have returned to work despite the assertion that he participated in a work trial in 2021.
The insurer submits the claimant did not intend to return to work noting he could have returned to work once the COVID-19 lockdown ended on 11 October 2021 but did not.
The insurer also submits that even if the claimant had intended to return to work the medical evidence as to his pre-accident disabilities means he would not have been capable of returning to work as a gyprocker or in similar heavy or labour-intensive work.
The insurer submits there is no evidence to support the claimant’s assertion that but for the accident he would have commenced earning $1,500 net per week despite being out of the workforce for six years.
I propose to assess damages for the impairment of the claimant’s earning capacity by way of buffer. In Penrith City Council v Parks[2] the Court of Appeal concluded it is appropriate to award a buffer when the impact of an injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. That is the case here.
[2] Penrith City Council v Parks [2004] NSWCA 201.
I accept the claimant had a residual earning capacity prior to the accident where, on the evidence of Mr Uzelac, he was able to complete a two-to-three-day work trial in March 2021. I accept that the claimant ceased work after two or three days due to the COVID-19 pandemic.
However, I am not satisfied the claimant would have been able to maintain the heavy work required of a formwork carpenter or gyprocker where he had not worked since 2016, where he was 66 years of age at the time of the work trial and having regard to his underlying pre-existing condition.
Whilst the claimant has been unfortunate to sustain injury it is worth noting that in the period 14 December 2009 until March 2021, a period of 11 years the claimant only worked approximately three years and nine months.
Mr Simpraga undoubtedly had the skills to undertake the work as evidenced by the observation of Mr Uzelac but it is less certain whether he had the capacity to maintain ongoing employment in the longer term where he was probably deconditioned and having regard to his underlying degenerative change.
Whilst I have accepted the claimant had experienced a partial recovery, it is difficult to be confident that his assessment of a recovery of 80 to 90% was realistic where he had not worked for five years, and having regard to the assessments of Dr Dixon in February 2017 and Medical Assessor Wijetunga on 9 October 2017. At that time the claimant was considered to have permanent impairment of the cervical spine, the lumbar spine, the left shoulder and the left hip.
Regardless of the dispute as to whether the claimant suffered from alcohol abuse it is significant that on 3 January 2018 Dr Kuljic, treating psychiatrist diagnosed post-traumatic stress disorder and major depression. It is also significant that the claimant consulted
Dr Dave, orthopaedic surgeon in February 2021, one month before the work trial, in relation to both hips. Dr Dave diagnosed left trochanteric bursitis.
I do not propose to make any allowance for future economic loss having regard to the provisions of s 4.7 of the MAI Act which states no allowance may be made for future loss of earning capacity unless the claimant establishes that the accident has caused a change in his most likely future circumstances. The claimant is now 70 years of age. Even if the accident had not occurred, I am not satisfied having regard to the claimant’s underlying health conditions there was any likelihood he would still have been undertaking heavy work as a formwork carpenter or gyprocker. I am not satisfied the accident has caused a change in the claimant’s most likely future circumstances.
In cases such as Medlin v State Government Insurance Commission[3] and Husher v Husher,[4] the High Court confirmed that the fundamental questions to be determined in a case such as this, are whether the claimant has sustained a loss or diminution in her earning capacity and, if so, whether that loss or diminution will result in economic loss.
[3] Medlin v State Government Insurance Commission (1995) 185 CLR.
[4] Husher v Husher (1999) 197 CLR 138.
I consider a small buffer to be appropriate where I am satisfied the claimant engaged in a work trial and demonstrated an intention to attempt a return to work. However, having worked only two or three days it is uncertain how long Mr Simpraga would have been able to maintain full time consistent employment. Mr Simpraga was already 66 years of age, his wife indicated it was a trial to see how he coped with full time work, and even Mr Simpraga conceded he had not returned to the heavy domestic chores he undertook before the 2016 accident. It is also clear from the evidence of Ms Simpraga that Mr Simpraga’s English skills precluded the possibility of light duties, meaning he was limited to the only work he was qualified to perform by reason of his experience and that is the heavy manual work of a formwork carpenter or gyprocker. Significantly, Mr Simpraga had already been compensated based on total incapacity for work until age 67 following the 2016 accident.
Where it is difficult to assess the impact of the injury upon the claimant’s earning capacity but where I find he might have otherwise undertaken work for a limited period of time I consider it appropriate to award a buffer of $20,000 for the impairment of his earning capacity, inclusive of loss of superannuation benefits.

ASSESSMENT OF DAMAGES SUMMARY

I assess the claim as follows on the findings set out above:
Past loss of earnings (including superannuation) $20,000
Total damages assessed $20,000

COSTS AND DISBURSEMENTS

I received submissions from the parties as to costs. I note the agreement between the parties.
Accordingly, I assess the claimant’s costs and disbursements in accordance with the attached Damages and Costs Calculator in the sum of $12,541.10.

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Citations

AAI Limited t/as AAMI v Simpraga [2025] NSWPIC 186

Cases Citing This Decision

0

Cases Cited

4

Statutory Material Cited

0

Mason v Demasi [2009] NSWCA 227

Penrith City Council v Parks [2004] NSWCA 201

Husher v Husher [1999] HCA 47

[2025] NSWPIC 186

5 May 2025