Aguilera v AAI Limited t/as GIO
[2024] NSWPIC 323
•20 June 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Aguilera v AAI Limited t/as GIO [2024] NSWPIC 323 |
| CLAIMANT: | Jaime Aguilera |
| INSURER: | GIO General Limited |
| MEMBER: | Michael Inglis |
| DATE OF DECISION: | 20 June 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accidents Compensation Act 1999; assessment of a claim for damages; liability admitted; claim for past and future economic loss and medical expenses; claimant has no entitlement to damages for non-economic loss; claimant born in 1960 in Chile; assessment conference occurred over four days in-person at the Personal Injury Commission; extent of claimant’s injuries and disabilities in issue; claimant had significant pre-existing degenerative changes at both the soft cervical and lumbar levels; degenerative changes aggravated by the accident; claimant returned to work for almost 18 months following the accident then dismissed; reason for dismissal in issue; Held – past treatment expenses agreed at $12,000; past economic loss awarded after assessing residual earning capacity at $224,124; future economic loss awarded on a buffer basis at $130,000 finding that the claimant would continue to work in some capacity; total damages awarded $393,124. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION In accordance with the Motor Accidents Compensation Act 1999, the Personal Injury Commission’s assessment is: 1. The amount of damages for the claim is $391,124. 2. The amount of the claimant’s costs in the matter is $ 57,137.77 inclusive of GST. |
STATEMENT OF REASONS
INTRODUCTION
At approximately 6:00pm on 12 December 2016, Mr Aguilera was driving his BMW SUV along Mona Vale Road in St Ives, NSW. He stopped at a red light when his vehicle was struck from behind by the insured vehicle which pushed his BMW into the car in front of it. Mr Aguilera does not recall the airbags going off, but says that his car was towed away from the scene of the accident.
Mr Aguilera says that initially, he had some pain in his back and neck and some blood coming from his mouth. After the accident, he was driven home by his brother-in-law. Later that evening, he attended a medical centre in Chatswood. He was sent for X-rays and prescribed some painkilling medication. He says by that time he had also developed pain in his right shoulder and right elbow as well as the pain in his back and neck.
At the time of the accident, Mr Aguilera was travelling home from work.
Mr Aguilera says that he continues to suffer from pain in his back which restricts his ability to bend, lift and walk. He also complains of continuing pain in the right shoulder and right elbow with restricted movement.
Mr Aguilera has difficulty sleeping and has suffered headaches since his accident. He has also become depressed. He says he is no longer able to work.
The insurer disputed the nature and extent of the claimed injuries and disabilities.
The insurer also disputed the extent of the claim for treatment expenses, the claim for past and future domestic assistance and the claim for past and future economic loss.
The insurer has admitted liability and breach of duty of care. Mr Aguilera makes no claim for 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 treatment expenses?
(c)What are the claimant’s future treatment expenses?
(d)What is the amount of any past economic loss?
(e)What is the claimant’s entitlement to future economic loss?
BACKGROUND
Mr Aguilera is now 64 years of age.
He was born in La Serena, Chile and arrived in Australia in 1980. At the time, he arrived by himself but joined his sister who had already migrated to Australia. He was 20 years of age at that time.
Before leaving Chile, Mr Aguilera was employed as a fitter and turner doing maintenance work. Shortly after his arrival in Australia, he says he studied mechanical engineering and specialised in welding. His expertise was in high pressure welding.
He was married in Australia in 1982, in Liverpool. There are four children of the marriage but he and his wife have separated.
When he first arrived in Australia, Mr Aguilera worked for Transfield in Sydney, he thinks for about two years, doing welding work.
He then worked for a company called ATP, which was also a large construction company and he did welding work for them. After that, Mr Aguilera says that he worked for someone called Frank Biachi, again doing welding and maintenance type work for him. He was employed by him for about five years.
From 1980 until 1997, Mr Aguilera lived in Sydney and in 1997, he moved to Perth.
In around 1990, he started his own welding business in partnership with his wife. The business was called Colzac Pty Ltd and operated until around 2009. He operated that company before he started work with Predan Engineering Pty Ltd.
Whilst in Western Australia, Mr Aguilera worked for a few companies.
His marriage ended in 2001 and he returned to Sydney.
From 2001 until late 2009, he says he did contract work at a number of sites in Sydney, usually for about six to twelve months and also usually involving heavy welding type work and sometimes maintenance work.
In late 2009, he found work at Regents Park, New South Wales which turned out to be his last job. He commenced there in mid-2010 and was terminated in July 2018.
DOCUMENTS CONSIDERED
I have considered the documents provided in the application and the reply together with documentary evidence tended by the parties at the assessment conference.
WHAT IS THE NATURE AND EXTENT OF THE CLAIMANT’S INJURIES?
The claimant alleges that in the accident he suffered an injury to his neck and lower back and also to his left and right elbows. He also says in his statement that by the time he consulted his general practitioner, he had developed pain in his right shoulder as well.
In a certificate dated 9 January 2020, Medical Assessor Thomas Rosenthal concluded:
“There is no contemporaneous evidence or documentation indicating that he injured his right elbow or left elbow in the accident. Based on the mechanism of injury and the rear-end collision, it is incongruous that he injured his elbows in that accident. Certainly, no injury to either elbow was reported initially and in fact the claimant himself denies ever having injured his left elbow, but he thinks he may have had an injury to his right elbow, although he was vague about this as well. There is no evidence of any ongoing injury to the right elbow or left elbow, but I do not accept that either elbow was injured in the motor vehicle accident.”
Medical Assessor Rosenthal therefore determined that the claimant suffered a soft tissue injury to his neck and back in the accident but not to either his left or right elbows.
In a further certificate dated 18 November 2022, Medical Assessor Farhan Shahzad determined that the claimant also suffered an injury to the left and right shoulders of a soft tissue nature but that those injuries had resolved. He further determined that the claimant had suffered soft tissue injury to the cervical spine and the lumbosacral spine.
In his final statement dated 14 March 2023, the claimant says:
“16. I continue to take painkilling medication, even many years after my accident.
17. I continue to suffer from pain in my neck. I find that bending my head downwards particularly painful. I also find that twisting my neck from left to right also causes pain.
18. I continue to suffer from pain in my back. I find that prolonged sitting or bending is difficult. I also find that lifting or carrying heavy things difficult, as is walking long distances.
19. I continue to experience pain and discomfort in my right shoulder and right elbow. I find that using my arms particularly my right arm overhead aggravates my pain.
20. I have had difficulty sleeping since the accident due to my injuries.
21. I have suffered headaches since my accident.
22. I have also become depressed because there seems to be little improvement in my pain and because I also lost my job as a result of the accident.
23. For all of my working life, I have worked as a welder. That is all I know. I had been doing that for about 40 years.”
In his evidence at the assessment conference, the claimant told me that he had effectively been on light duties ever since the accident. He said he had difficulty performing welding work and that even lowering the welding mask caused neck pain. Use of the welding gun caused elbow pain. He also described in detail his pre-accident work activities which could only be described as heavy work.
Counsel for the insurer Mr Guihot thoroughly cross-examined the claimant in relation to the histories that he had given the various medical practitioners and his failure to meet his tax obligations. This gave rise, in my opinion to an issue of credit particularly in relation to economic loss which I will discuss in more detail later in this decision. In the circumstances, it was necessary to have particular regard to any available corroboratory evidence. There were also inconsistencies in the claimant’s presentation to some medical practitioners.
In that regard, counsel for the claimant Mr Sciglitano took me to many references in the clinical notes to complaints of pain particularly in relation to the neck and lower back. I do not propose to refer to those references in any detail other than to say that I accept that so far as the neck and back injuries are concerned there was a reasonably consistent history of complaint.
Medical evidence
In addition to the references made to the contents of the clinical notes, the claimant also relies upon reports of Dr Y Kai Lee, orthopaedic surgeon and Dr Anil Nair, spinal surgeon.
An MRI scan dated 5 May 2017 revealed significant lumbar degenerative changes.
An MRI scan dated 2 May 2017 revealed significant cervical degenerative changes.
At the time of his examination on 17 July 2018, Dr Kai Lee recorded complaints of lower back pain. He did not record any specific complaint of neck pain and noted “he did not have complaints of his shoulders. Similarly, there was no apparent complaint of elbow pain. Relying on x-ray reports as opposed to the actual films.” Dr Kai Lee noted degeneration at the L4/5 level with osteophyte complex more on the left, transitional L5. Degeneration and narrowing of the L4/5 disc with bulging on the left. At L3/4 there was bulging disc on the right side. Dr Kai Lee further noted degenerative change worse at C5/6 in the neck.
When reviewed on 6 August 2020, Dr Kai Lee recorded a complaint of pain in the neck and lower back radiating down the left leg together with headaches and numbness in the left hand along the ulnar two fingers. Again, Dr Kai Lee noted that the claimant did not complain of shoulder pain but of stiffness. He was of the view that it was probably constitutional on the left side but the right side was likely the result of right upper limb injury when he injured his elbow. In a report of 8 October 2020, Dr Kai Lee said that he did not recommend surgery as had been suggested by Dr Nair.
Dr Kai Lee last examined the claimant on 19 April 2023. Complaints of neck and lower back pain were again recorded together with right shoulder tenderness. However, on this occasion, Dr Kai Lee although recording complaints of pain in the right elbow, he noted that the tingling sensation this time was down the right finger whereas previously the left hand had been involved. He made the following diagnosis:
“The diagnosis is the aggravation of pre-existing degeneration in the cervical spine and LS spine, possible rotator cuff injury to the right shoulder and traumatic medial epicondylitis and irritation of the ulnar nerve in the right elbow.”
Dr Nair examined the claimant on 4 March 2020 and 2 July 2020. He records only a complaint of symptoms in relation to the neck and the lumbar spine. He opines that fusion surgery to the cervical and lumbar spine would likely be required. I do not accept this opinion particularly as it is contrary to the views expressed by Dr Kai Lee.
I also have available to me a report from the claimant’s treating general practitioner,
Dr Sajani Vidanalage dated 14 April 2017. On examination 11 January 2017 and a series of subsequent examinations up to 10 May 2017, the claimant made complaints to him of neck pain, lower back pain and headaches. There are no complaints recorded in relation to either the shoulders or the elbows.The insurer arranged for the claimant to be examined by Dr Robert Breit, orthopaedic surgeon, who reported on 12 December 2018 and 15 May 2021. The claimant also relies upon the contents of these reports.
In his report of 12 December 2018, on the basis of the history provided, Dr Breit diagnosed soft tissue injury to the cervical and lumbar spine as well as the right elbow. He also determined that the claimant was unfit for his pre-accident employment permanently.
He suggested that a 1990 injury to the claimant’s lower back could be responsible for the long-standing pathology that he found existed in the lumbar spine and suggested further investigation of that incident. This does not appear to have been undertaken.
At the time of Dr Breit’s second examination on 6 May 2021, the claimant complained of upper thoracic pain as well as neck pain and lumbar pain.
Dr Breit diagnosed spondylosis involving the thoracic and lumbar spine and restricted shoulder movement related to a complaint of thoracic pain and the same applied to neck movement. He again noted the significant cervical and lumbar degenerative change and confirmed his opinion that the claimant was unfit for his usual employment.
I am satisfied that the claimant in the accident suffered soft tissue injury to the cervical and lumbar spine aggravating significant pre-existing degenerative change. I am satisfied that the claimant from time to time suffers right shoulder pain related to his neck pain in accordance with the Nguyen principle.
I am not satisfied that the claimant suffered injuries to either of his shoulders or elbows in the accident.
As a result of the injuries, the claimant continues to suffer pain and restriction of movement in both the neck and lumbar spine which impacts on his day-to-day activities and his capacity to work.
WHAT IS THE CLAIMANT’S PAST TREATMENT EXPENSES?
Past treatment expenses have been agreed at $12,000.
WHAT IS THE CLAIMANT’S FUTURE TREATMENT EXPENSES?
The claimant seeks a buffer of $20,000 for future expenses including analgesics, other painkilling medication, pain specialist review, radiological scans, anti-depressant medication, and psychological counselling.
In his report of 6 August 2020, Dr Kai Lee opined, “his condition is static. There is no need for active treatment. He may still need the occasional physiotherapy treatment if symptoms flare up”.
In his report of 21 April 2023, Dr Kai Lee says, “It is now over six years since injury. I would not propose any surgical treatment to his cervical spine, LS spine or the right shoulder”.
In the circumstances, I propose to allow the modest sum of $5,000 for any future treatment.
WHAT IS THE CLAIMANT’S PAST ECONOMIC LOSS?
The claimant’s entitlement to past and future economic loss is vigorously challenged by the insurer. The counsel for the claimant submits that the appropriate allowance for past economic loss to the date of assessment was $344,424 ($1,356.00 x 254 weeks). In support of that contention, Mr Sciglitano submitted:
“By nature, the work as a welder requires excellent physical health. There are often large steel items to weld and manoeuvre as well as the use of heavy gas bottles. There is also work that requires the use of ladders and scaffolding.
The claimant had no issues with work prior to the subject accident. He had no reason to believe that his job was not secure.
Following the accident, the claimant struggled with his work duties. This was entirely due to the motor vehicle accident. His general demeanour changed due to his frustration arising from his inability to work on an unrestricted basis as he could pre-accident.
Tellingly, there was a change in management in July 2017. The claimant no longer enjoyed the benefit of a sympathetic employer. There were no issues with the claimant’s work ethic or attitude prior to the accident. Ultimately, the claimant’s employment was terminated in July 2018. At the time, the claimant was in receipt of $1,356.00 net per week.”Mr Sciglitano at the assessment conference submitted that due to his work experience and language difficulties and the physical restrictions that he now suffers from on a permanent basis, he should be regarded as having been totally incapacitated for all forms of work from the date of his termination.
In cross-examination, Mr Guihot closely examined and tested the claimant’s work history. He challenged the accuracy of the alleged pre-accident earnings. He suggested to the claimant that he had consciously avoided paying tax. I am satisfied that Mr Guihot was accurate in that suggestion and in my opinion, the claimant was consciously evasive in answering his questions in that regard. However, I do accept that there may have been some confusion in the claimant’s mind as to who was actually responsible for the withholding and payment of tax at times. The claimant had a very long work history with businesses run by Mr Dinesh Chand. Eventually, Mr Chand’s business was taken over by Abergeldie Complex Infrastructure Pty Ltd. Both Mr Chand and the claimant were offered employment by Abergeldie on 15 June 2017.
Mr Guihot put to the claimant that contrary to his assertion that he was dismissed because he was unable to perform his normal duties, he was dismissed by Abergeldie for bad behaviour rather than for lack of work performance. In support of that contention, the insurer tendered three letters, which were actually produced by the claimant which supported a behaviour based dismissal. The claimant accepted that that’s what the documents indicated but positively disputed that that was the real reason for his dismissal. The insurer also tendered two payment summaries indicating that the claimant’s earnings, at least during the periods covered by the payment summaries, was significantly less than what was claimed.
Mr Guihot also cross-examined the claimant about attending a hotel to play the poker machines whilst he was said to have been incapacitated. I was not greatly assisted by that evidence.
Dinesh Chand
The claimant’s credit having been challenged, particularly in relation to the reason for his dismissal by Abergeldie. Corroboration again was required in relation to this head of damage.
Mr Chand, for whom the claimant had worked for many years, provided a statement and also gave evidence at the assessment conference. I found him to be a forthright and impressive witness. He was in the best position to observe any changes in the claimant’s attitude and capacity for work post-accident.
In his statement of 9 July 2023, Mr Chand said relevantly:
“17. After Mr Aguilera’s subject motor vehicle accident, I noticed a change in his physical and mental health.
18. After Mr Aguilera’s accident, he told me he was struggling physically to do the work he would normally do. I noticed that that made him frustrated and agitated.
19. I tried to support him by giving him lighter duties, however, the nature of his job did not make that easy.
20. Mr Aguilera took time off work to have physiotherapy treatment. He tried his best to make the appointments outside of work hours, so that he would not miss as many days of work.
21. I understood that there were days that he had to miss out on work to attend the physiotherapy session.
22. I observed Mr Aguilera was struggling with his work and often had to take breaks throughout the day. I know that he had a cream prescribed by him to him by the physiotherapist, which he would need to apply every so often throughout the day to try and ease his pain.
23. I believe Mr Aguilera tried very hard to get on with his usual job.
24. Prior to the accident, I would describe Mr Aguilera as a calm and cool person who had no problems in the workplace. He got on well with the staff.
25. Mr Aguilera’s change in attitude and demeanour only came about after the subject accident.
26. Mr Aguilera and I would often have discussions about the issues he was having with his injury. He told me he was not sleeping well due to ongoing back pain. I know that he was on medication.
27. I know Mr Aguilera was later terminated from his employment. I know there were meetings with Human Resources/Management (HR).
28. I was not present at the meetings between Mr Aguilera and HR, so I am unable to comment on any discussions that took place.
29. I am prepared to give evidence in person if required. That may be difficult for me as I am still employed by Abergeldie, but I am prepared to do it if required.”
Mr Guihot cross-examined Mr Chand who confirmed that the onus was on the claimant to organise and pay his own tax. Mr Chand agreed that the claimant had not disclosed his 1990 back injury to him but essentially, Mr Chand’s evidence about his observations of the climate pre and post-injury were not effectively challenged.
An assessment of any residual work capacity post the dismissal by Abergeldie is relevant to the assessment of both past and future economic loss. I do not accept the submission that the claimant has effectively been totally incapacitated for all work since ceasing with Abergeldie. I note, albeit with restrictions and difficulty with his work performance, the claimant remained at work for almost 18 months post-accident.
The insurer relied upon a report of Earning Capacity Assessment dated 27 June 2022 and prepared by Dr Andrew Keller, occupational physician and Rhonda Nohra, vocational consultant. In relation to the claimant’s lack of English, it is noted in that report that:
“Mr Aguilera rated his English as being within the “below average to average” range. Mr Aguilera elaborated by stating he comprehended about 80% of the English language and had no issues with comprehending English in the workplace. He reported that it was difficult for him to speak with confidence as he considered himself a “perfectionist”. He reported that his reading and listening was “okay” and writing and speaking was within the blow below average range.”
The Medical Assessors noted:
“Mr Aguilera appeared to understand questions, responding to the assessor occasionally throughout the Vocational interview. Mr Aguilera referred to the interpreter as needed throughout the interview, to answer vocational questions with more detail. Mr Aguilera reported within his tenure, he was required to use his English skills to read plans, work with team members, and action a manager or supervisor’s daily work instructions. This suggests that he would be able to use the English language to work to action instructions and respond accordingly as required in the occupations identified in this report.”
In relation to those occupations, it was noted for example, that English competency was not required in order to undertake the role of a process worker. It was further noted:
“With his prior experience spanning 35 years as a Fitter Welder, or Boiler maker, he has demonstrated comprehension skills within a manufacturing and factory environment. He also demonstrated sound verbal skills during his assessment. He reported that he had learned through visual cue in many of his roles and read blueprints and plans with no issues. Therefore, Mr Aguilera is considered to have suitable communication/language skills to be well matched to this role.”
A number of transferable skills are detailed in the report and suitable employment identified as a machine operator, product assembler, process worker. In cross-examination, he agreed that he could perform the duties required in each of those three occupations but questioned the number of hours that he might be able to perform them.
The claimant had engaged in some form of rehabilitation himself and produced a Statement of Attainment whereby it is certified that he has attained the skills to deliver and monitor a service to customers, operate a personal digital device, use digital technologies to communicate remotely and develop keyboarding speed and accuracy.
In addresses, Mr Sciglitano agreed that any residual earning capacity retained by the claimant should be compared to probable comparable earnings of $1,054 net per week as demonstrated by the payment summaries tended in evidence.
Having regard to the work that the claimant was able to perform post-accident, the suitable occupations identified in the ECA report and the assessed likely earnings, together with the restrictions placed on the claimant’s work capacity, with limitations as to the number of days per week, or the number of hours per day he is able to work, I am of the opinion that it is reasonable to assess that the claimant has been capable of earning, on average $400 net per week since he ceased with Abergeldie.
Accordingly for past economic loss, I propose to allow $200,124.00 ($654.00 x 306 weeks) for past economic loss. I allow a further $22,000 for superannuation, which I have calculated at the rate of 11% on average. The total allowance for past economic loss is therefore $222,124. If I had assessed future economic loss by awarding a “buffer” the sum awarded would have been similar.
WHAT IS THE CLAIMANT’S FUTURE ECONOMIC LOSS?
The claimant maintained that pre-accident, it was his intention to work as a welder until age 70, it is said that but for the injuries sustained in the accident, he was “otherwise in excellent physical health”. However, it is clear from the MRI scans of the claimant’s neck and lumbar spine that he had marked degenerative changes in both of those anatomical regions. There is also a suggestion in some of the medical material that the claimant may have suffered from continuing radicular leg pain after the 1990 accident but the evidence is unclear in this regard.
The claimant now has symptoms in each elbow although it is unclear as to how this impacts on his work capacity.
With significant degenerative changes and working in a physically demanding occupation, I consider it unlikely that the claimant would have been able to continue working as a welder to age 70. Even if that was his intention, the very nature of the physical requirements of his occupation exposed the claimant daily to a risk of injury and/or aggravation of the pre-existing degenerative changes. The claim for future economic loss in the sum of $368,186 is not made out. Accordingly, I propose to allow by way of a buffer including superannuation, the sum of $130,000.
ASSESSMENT OF DAMAGES SUMMARY
I assess the claim as follows, on the findings set out above:
· Past treatment $12,000
· Future treatment $5,000
· Past economic loss (incl s 83 payments) $222,124
· Future economic loss $135,000
TOTAL DAMAGES ASSESSED $374,124
The insurer is to have credit for the sum of $9,347.26.
COSTS AND DISBURSEMENTS
I assess the claimant’s legal costs and disbursements in accordance with ss 149 and 150 at $57,137.77 inclusive of GST.
Section 95(2)(b) of the Motor Accidents Compensation Act 1999 provides:
“An assessment under this Part of the amount of damages for liability under a claim is binding on the insurer and the insurer must pay to the claimant the amount of damages specified in the certificate as to the assessment if: (a) the insurer accepts that liability under the claim within 21 days after the certificate of assessment is issued.”
If the claim was made on or after 1 October 2008, s 95 (2A) and provisions of the Motor Accidents Compensation Regulation 2015 provide that if the amount of damages is not paid within 20 business days interest may be payable.
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