AJL v NRMA

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	AJL v NRMA [2021] NSWPIC 322
CLAIMANT:	AJL
INSURER:	NRMA
MEMBER:	Elizabeth Medland
DATE OF DECISION:	3 August 2021
CATCHWORDS:	MOTOR ACCIDENTS - Assessment of damages under Division 7.6, subdivision 2 of the Motor Accident Injuries Act 2017 (MAI Act); economic loss; claimant suffered fracture of the humerus and left shoulder, neck injury and psychological sequelae; subsequent unrelated motor accident; extent subsequent accident contributed to economic loss and loss of earning capacity; most likely future circumstances but for the accident; Held – damages assessed according to sub-sections 7.36 (3) and 7.36 (4) of the MAI Act.
DETERMINATIONS MADE:	1. Under sub-sections 7.36 (3) and 7.36 (4) of the Motor Accident Injuries Act 2017 (the Act), I specify the amount of damages for this claim as $149,030.50. 2. 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 Act is $21,189.50 inclusive of GST.

Reasons for Decision

Issued under section 94 (5) of the Motor Accidents Compensation Act1999
Background

This determination relates to an assessment of damages under Part 4 of the Motor Accident Injuries Act 2017:

AJL (the Claimant) is a 27-year-old male who was injured in a motor vehicle accident occurring on 30 January 2018. The accident occurred when the insured driver failed to give way to the Claimant who was travelling on his motorcycle on a roundabout in Hamlyn Terrace, causing a collision.
Liability is wholly admitted by the insurer.
The issue that remains is the amount of damages to which the Claimant is entitled. Specifically, the issue relates to a determination of economic loss damages. It is agreed between the parties that the Claimant is not entitled to damages for non-economic loss.

Documents considered

I have considered the documents provided in the Application and the Reply and any further information provided by the parties.

Injuries

The written submissions lodged on behalf of the Claimant with the Application, allege that the Claimant suffered a fracture of the left upper humerus and left shoulder as a result of the accident, together with a neck injury and psychological sequelae.
The medical evidence and evidence from the assessment conference demonstrate that the main ongoing complaint is the left arm injury. The neck injury appears to have resolved, and there is no evidence of any significant psychological injury as a result of the accident.

Medical evidence

The Claimant was transported from the accident scene via ambulance to Gosford Hospital. He was discharged after two days, however, came to receive surgery by way of open reduction and internal fixation of the left upper humerus approximately two weeks later. The Claimant suffered an infection and underwent revision surgery around one month later.
Since such time, the Claimant has received some treatment, including as an outpatient at the Wyong Hospital physiotherapy clinic. He wore a sling to support his left arm for a period of three weeks.
The Claimant has received at least one cortisone injections at his left shoulder in 2019. A report following an injection on 13 May 2019 reports the Claimant describing an almost complete relief of pain immediately following the procedure.
A report from Steven Davis, Physiotherapist dated 25 March 2019 confirmed that the Claimant received treatment for the left shoulder injury and had been making good progress. It was said at that time the Claimant had a functional active range of motion that was suitable for returning to work. Mr Davis stated that the Claimant had unlimited capacity for “sit to stand”, standing, kneeling and push/pull. It was stated that he could lift floor to waist 30 kg with good form. In respect of lifting overhead 10 kg unilaterally and 20 kg combined. It was further stated that the Claimant had around 10% restriction in the shoulder at the end as compared to the right shoulder. It was expected that the Claimant would gain full range of motion and muscle strength. It was also stated that the 10% restriction would not prevent him from completing any work place duties of a physical nature. The report concludes stating: “Douglas’s should (sic) no longer be classified as an injury that can prevent him from completing jobs of a physical nature.”
Also before me is the Patient Health Summary of Warnervale GP Super Clinic.
A letter of 22 May 2018 from Warnervale GP Super Clinic of 22 May 2018 addressed to Area Drug and Alcohol Service noted the Claimant was at that time on parole. The report suggested that the Claimant admitted to using methamphetamine, ice and alcohol. The letter also suggested the Claimant was convicted in the new year for intimidation and malicious damage occurring on Christmas day. He was apparently arrested on Christmas day and put on bail. It goes on to state he broke bail in mid February when he stole a car, fell asleep in the car and was caught. He was charged with theft and malicious damages. He thereafter spent three nights incarcerated in Silverwater. It was stated that he “hasn’t been able to work” and was using drugs and alcohol. It was said that he attended court four weeks earlier and was given a three year good behaviour bond but it is said in the letter that he continues using alcohol and drugs on a near daily basis.
A consultation note at the Warnervale GP Super Clinic of 16 February 2018 noted the Claimant presented with a left shoulder reconstruction. He was noted to be still in pain and had been using Endone, paracetemol and Nurofen.
A further note of 4 April 2018 stated he was no longer taking pain relief and had not been back to work since the accident and was not fit until May. However, on 2 May 20218 a note stated the Claimant was still suffering significant loss of function of the left arm following the accident and surgery.
The matter is complicated to an extent by the occurrence of a second motor vehicle accident which occurred on 24 July 2019. Again, the Claimant was riding his motorcycle at the time when he lost traction and fell off his motorcycle hitting his head on the concrete in a carpark.
The evidence demonstrates that the Claimant suffered a brain injury as a result of this accident and was flown by air ambulance to Royal North Shore Hospital. The Claimant also sustained a right clavicle fracture requiring surgery.
As a consequence of the brain injury the Claimant lost his sense of taste and smell in addition to suffering some hearing impairment. It is submitted that these issues essentially returned to normal and he suffers from no ongoing disabilities arising from the accident. There is no evidence before me that suggests that the Claimant is suffering any significant ongoing difficulties as a result of the second unrelated motor accident.
The Claimant’s legal representatives have obtained a Vocational and Functional Assessment Report dated 10 March 2020 from Injury Assess. The report takes a history from the Claimant including his drug and alcohol use. There is no mention of his more recent arrest and incarceration, however, earlier good behaviour bonds are mentioned that occurred when the Claimant was 16 and 18.
It was noted that his motorcycle licence had been cancelled since July 2019 (the second accident).
The report findings include an opinion that the Claimant was restricted with active ranges of motion of the left shoulder and was limited by his left upper limb function and physical stamina. He reported persistent pain that impacted negatively on his functional work capacity.
The authors opined that the Claimant demonstrated a residual physical capacity to perform light work for eight hours per day or medium work for six hours per day in selective work environments. It was said that the Claimant should avoid work involving upper limb work including reaching above shoulder height, explosive strength, forceful pulling and pushing, placing of objects weighing more than 4 kg and jerking, jolting or jarring.
It was determined the Claimant had the potential to perform jobs as a chef, factory work or picker/packer.
The Claimant’s solicitors also rely on a report of Orthopaedic Specialist, Dr Gehr dated 28 April 2020. The Claimant attended the relevant appointment via videolink.
It was reported that the Claimant had pain over the superior aspect of the left shoulder with difficulties with overhead activities. He was reported to no longer have pain in the cervical spine.
Whilst the appointment occurred via videolink it is said a physical examination occurred using a goniometer and inclinometer.
The doctor stated his opinion that the Claimant was not able to return to his employment as a picker/packer due to residual pain and injury and right shoulder injury so his current disabilities were related to the left shoulder injury.
It was stated that the Claimant would be limited in his future employment due to a limited lifting capacity of 5 kg-10 kg using the above arm and limited shoulder activities at 5 kg-10 kg. It was said that he could work part time only.
Dr Gehr found a 10% whole person impairment.
The insurer relies upon the report of Dr Robin Mitchell, Occupational Physician, dated 11 July 2019. The Claimant reported to the doctor that he could sit, stand and walk without difficulty. He could lift up to 20 kg on the left side. The Claimant was reported as saying that he “was relatively comfortable now apart from having a slight pain when stretching his right arm and shoulder, or after carrying out any heavy lifting for a period of time.”
The report is concluded with the following: “…the injuries sustained no longer impact negatively upon AJL’s capacity for work. He has now regained his functional capacity for full normal hours of his pre-injury work or any other form of employment compatible with his education, training, and experience.”
A physical examination was reported as being “near normal”, however, slightly reduced range of motion was noted for flexion, internal and external rotation in the left shoulder.
The doctor opined that the Claimant had made a good recovery and had capacity for suitable work which included managing all significant physical activities below mid chest height and close to the body trunk, particularly if repetitive in nature. A 2% whole person impairment was assessed.
The insurer also relies upon the earning capacity report of Ms Geraldine Nelson. She found the Claimant could work as a packer, chef or process worker. The earnings from such vocations were noted to be commensurate with his pre-injury earnings.
The Claimant is reported to have been attending gym twice per week at the time. He had also completed his Chef Apprenticeship in 2016 and a Food Safety Supervisor course and Safe Food Handling course. He also had obtained a White Card for construction work.
The parties obtained a joint report from Neurologist, Dr O’Neill dated 23 November 2020. The doctor opined that the Claimant had made a good recovery from both accidents and had the ability to return to normal life. The doctor did suggest, however, there may be difficulties working as a labourer, whilst acknowledging this was outside of his area of expertise to provide opinion on.
A further joint report was obtained by Psychiatrist, Dr Jones dated 6 December 2020. The doctor found no psychiatric disorder.

Further evidence and Submissions

The Claimant gave evidence at the Assessment Conference that his work with Woolworths involved a lot of repetitive movements, packing pallets.
He also gave evidence that after the accident he was able to secure work in 2020 doing pressure cleaning work – cleaning concrete and walls. This was casual type employment and it ceased when they phoned to have him work, however, he was experiencing a flare up of shoulder pain and told them so. They did not contact him again after this. Evidence suggests this work spanned a two week period of three days per week. Evidence was given that the company phoned around one month after this period of two weeks, and it was at this point the Claimant advised the company of his shoulder pain. He did not perform this work again.
The Claimant also gave evidence that he was able to perform the work pressure cleaning without issue. This included elevating his arm at some intervals above 90 degrees when utilising the pressure cleaner.
The evidence also reveals that the Claimant had worked as a chef after the accident. The written submissions lodged with the Application suggest this occurred in 2019 and he “attempted” to undertake work experience as a chef at “the Ocean Restaurant” at The Entrance. It was stated that he had completed about a week of work experience with the intention to commence part-time work as he had secured a potential role with them. However, the second accident unfortunately intervened and the employment did not go ahead.
As confirmed at the Assessment Conference, it would appear that the submissions are not entirely correct. Instead, the Claimant confirmed in evidence that he had worked in the role for around two weeks at the time of the second accident and he had actually secured the role. He confirmed he was working four to five days a week at eight hours a day, and he agreed that this was “pretty much” full time work. The Claimant confirmed that the role ended due to the occurrence of the second accident.
At the Assessment Conference the Claimant was questioned at length about his allegation that he had been extensively looking for alternative work since the accident. In particular, the Claimant was questioned on the list of “Seek” job applications that forms part of the Application documentation.
At the beginning of questioning by Counsel for the insurer, the Claimant confirmed that he had been actively looking for work and his attempts had been genuine and submitting applications for positions that he had a realistic expectation of obtaining.
The Claimant was led through a number of positions he had lodged applications for that he was clearly not qualified for. Such positions included things such as CEO, Sonographer, Exercise Physiologist, Communications and Engagement Manager and a number of other seemingly unobtainable positions.
The Claimant explained that whilst he genuinely had been job seeking those applications for positions mentioned above were more of a “joke” as a consequence of his frustrations of continually job searching with no employment gained. He explained the application was merely a click of a button, where his CV was already saved on his account and submitted automatically.
The Claimant gave evidence that he had been successful in obtaining some interviews for positions, including around 10 phone interviews and three in person interviews. He was successful in obtaining a one day work trial, however, this was cancelled and this is as far as he got. He said that the positions he was interviewed for were mainly for Chef or labouring jobs. He confirmed that he felt that he was currently capable of performing such jobs.
The Claimant also gave evidence that he was able to lift overhead and perform repetitive movements with 15 kg weights. He confirmed that he was doing so as part of his regular weekly gym activities.
The Claimant was very forthcoming that he was able to perform lifting activities in the gym and was also able to carry out a number of household tasks without issue. He also positively confirmed he was capable to perform work as a labourer, however, not intensely physical type work such as a “brickie’s labourer.” The Claimant also confirmed that he was capable of working as a Chef without issues.
The Claimant was also questioned on recent treatment, and in particular why his physiotherapy treatment had ended. It was said that he has not had such treatment since November 2020 has his therapist had ceased work at the practice. He confirmed that if he felt he needed more treatment he would have made enquiries at an alternative practice. He did confirm that he was still performing some of the physiotherapist recommended exercises to assist with his shoulder symptoms.
In terms of medical evidence it was submitted on behalf of the insurer that I would not be persuaded by the opinion of Dr Gehr. In this regard, given his speciality as an Orthopaedic Specialist he was not qualified to provide opinion on earning capacity. I agree with this submission. In addition, it was submitted that the report stated that the substantive conclusions are based on incorrect history such as the fact that the Claimant had in fact performed some work since the accident which was not set out in the report. I also agree with this submission.
I also note that the conclusions of Dr Gehr in respect of the Claimant’s lifting capacity is directly contradicted with the Claimant’s own admissions as to his ongoing capabilities. The Claimant has been able to lift weights on an ongoing basis that far exceed the restrictions suggested by Dr Gehr. The Claimant gave evidence that he performed such activities without incident. For these reasons, I am not persuaded by the report of Dr Gehr as providing me with an opinion upon which I can reliably base an assessment of damages for economic loss. Instead, I favour the opinion of Dr Mitchell which more closely aligns with the Claimant’s own evidence.
The Claimant relies upon a statement of his mother, Evelyn Wilkinson dated 17 May 2021. The statement details Ms Wilkinson’s observations of the Claimant following the accident. She describes him as having issues following the accident including an increase of alcohol consumption. She describes him as having lower self-esteem, being withdrawn with less motivation.

Issues of Credit

The insurer’s Counsel submitted that I would be satisfied on the evidence that there are issues as to credibility. In this regard, I was referred to the number of job applications lodged for unattainable positions. It was submitted that he did not answer questions in a straightforward manner, and at times answered questions with the preface of “I know where you are going with this…”
I do not agree that the Claimant was an unreliable witness. Whilst at times it appeared that he was framing his questions to put his case in the best light, overall he was quite forthcoming and at times made concessions that did not promote his own case. In this regard, he quite readily accepted he was physically capable of performing work as a labourer and/or chef. He was also forthcoming as to his lifting capabilities and gym activities, which contradicted his own medical evidence relied upon.
In relation to the Claimant applying for multiple jobs that were not within his realistic reach, I accept his evidence that this was done out of frustration with his failure to secure employment. I do consider that the Claimant did try to “gloss over” this fact in his evidence before he was questioned on it specifically, but when he was questioned on it he was forthcoming with admissions and gave a logical explanation.

Reasons

At the time of the accident the Claimant was working as a picker/packer at a Woolworths Distribution Centre through All Staff Labour Hire.
The Claimant did not return to that work following the motor accident. His employment was officially terminated three months after the accident and a Centrelink separation certificate lists termination was due to injury.
Weekly payments of statutory benefits were paid to the Claimant by the insurer, as I understand it, until he obtained work as a chef at the Ocean Restaurant.
The Claimant makes a claim of $1,100 net per week from the date of the accident, ongoing. It is said that $1,100 was the average of the Claimant’s pre-accident earnings. This claim is less a period of four weeks from 25 July 2019 to 24 August 2019 that it is said the Claimant was incapacitated as a result of the second accident.

For Future Economic loss the Claimant makes a claim of $330 net per week based on a 30% reduction in pre-accident earnings.
The insurer submits that no allowance for future or past economic loss, save for the payments of weekly statutory benefits.
The insurer also disputes the calculation of $1,100 net per week and states that the payslips “on file” commence in June 2017 and cease about two weeks post-accident. It is submitted the average earnings for the pre-accident period are $771.19.
However, I have reviewed the 2018 taxation return which details gross earnings of $41,518 with the pre-accident employer, with tax of $6,184. The accident date is 30 January 2018. Therefore, between 1 July 2017 and 30 January 2018 there are 31 weeks. On such basis, I calculate the average to be $1,139.80 net per week. I therefore adopt of the figure of $1,100, as claimed as it most closely aligns with the taxation evidence before me.
I am satisfied on the evidence that the Claimant was not able to return to his pre-accident employment due to the accident. In this regard, I refer to the Centrelink separation certificate.
I am also satisfied that until the time the Claimant was able to secure employment as a chef at Ocean Restaurant he had suffered a full loss of income directly related to the subject accident. I understand that such employment commenced on 4 July 2019.
Whilst the Claimant was able to secure a short stint of work pressure cleaning, I am satisfied by the Claimant’s evidence that such work ceased due to his accident related injury. I accept the Claimant’s submissions that earnings in such position totalled approximately $1,000 net.
I find that it was the second unrelated accident that caused the Claimant to cease his employment as a chef at Ocean Restaurant.
It is not clear to me the earnings from such employment, however, the evidence in the insurer’s vocational report of Geraldine Nelson suggests the earnings of a chef are comparable to the Claimant’s pre-injury earnings.
I find that the most likely future circumstances are that but for the accident the Claimant would have continued in his pre-accident employment, however, at some point would have secured work as a chef, given his training and qualifications.
I also make a finding that if it were not for the second unrelated accident the Claimant would have continued working as a Chef and that in terms of his accident related injuries was fit to continue such work. It is noted that the Claimant himself confirmed that he considered himself fit for such work.
In terms of past economic loss, I make an award of $81,500. This figure is reached by utilising the figure of $1,100 (pre accident earnings as found above) multiplied by 75 weeks representing the time between the date of accident and the employment commencement at Ocean Restaurant. I have also deducted an amount of $1,000 representing the earnings from the pressure cleaning work.
I also make an award of $7,742.50 for past superannuation (rate of 9.5%).
In terms of future economic loss, I note that I have stated my preference for the opinion of Dr Mitchell over Dr Gehr. However, I also accept the Claimant’s submissions that Dr Mitchell’s findings that the Claimant should avoid activities that aggravate his left shoulder and overhead work is at odds with the conclusion that the Claimant has no incapacity for employment.
I also note the conclusions of both parties’ vocational assessment reports that the Claimant is fit for a variety of occupations, namely: picker/packer, process worker and chef. However, the Claimant’s expert, Mr Ting concluded a reduction of 19% in earning capacity due to the accident.
I do not accept the figure of 19% reduction in earning capacity. The Claimant himself accepts that he is fit for full time work as a chef, for example. However, I do not accept the insurer’s position that there is no loss of earning capacity.
As found above, I consider the opinion of Dr Mitchell, whilst preferred over Dr Gehr, to be inconsistent. Dr Mitchell accepts that the Claimant would have difficulty with some activities. This is also consistent with the opinion of Dr O’Neill.
On such basis, I consider that due to the accident the Claimant is likely to suffer from occasional aggravations of his shoulder which would render him unfit for short periods. I also consider that the Claimant would be at a disadvantage on the open labour market due to his accident related injuries.
I therefore consider the provision of a modest buffer is appropriate for future economic loss. In making such award I have given consideration to the Claimant’s criminal history and drug use which I find would also contribute to ongoing difficulties in securing employment.
Taking all evidence into account, including the Claimant’s young age and the fact he has many years before retirement age, I make an award of $50,000 inclusive of superannuation.
I have received information from the insurer that the Fox v Wood figure total is $9,788 and I therefore make such award for same.

Damages Summary

As per the above, I make an award as follows:
·   Past Economic Loss  $81,500
·   Past Superannuation  $7,742.50
·   Fox v Wood  $9,788
·   Future Economic loss  $50,000
·TOTAL:  $149,030.50

Costs and Disbursements

82. There is a dispute between AJL and the insurer in respect to recovery of legal costs under section 155 of the Motor Accident Injuries Act 2017.

83. The Claimant submits a claim totalling $76,868 comprising of $66,000 for professional fees, disbursements totalling $5,368 and Counsel fees of $5,500.

84. The insurer submits that the claim does not accord with Schedule 1 of the Motor Accident Injuries Regulation. I agree with the insurer's submissions in this regard.

85. I make an award for costs in accordance with the abovementioned Schedule, as per the attached costs calculator.

86. I have allowed for three hours of conferences directly related to the assessment hearing.

87. Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accidents Compensation Regulation 2015 is $21,189.50 inclusive of GST.

Legislation

In making my decision I have considered the following legislation and guidelines:
· Motor Accident Injuries Act 2017 (NSW), and
· Motor Accident Injuries Regulation 2017.

Elizabeth Medland

Member (Motor Accidents Division)

Personal Injury Commission

[2021] NSWPIC 322

3 August 2021