Allianz Australia Insurance Limited v Hasanovic

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Allianz Australia Insurance Limited v Hasanovic [2024] NSWPIC 221
CLAIMANT:	Denisa Hasanovic
INSURER:	Allianz
MEMBER:	Allan Cowley
DATE OF DECISION:	1 May 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accidents Compensation Act 1999; assessment of damages only; claimant now self-represented having previously instructed two law firms; prior physical and psychiatric impairment; soft tissue injuries to neck, lumbar and right shoulder principally; assessed 5% cervical only and no psychiatric injury as a result of the subject accident; Held – no entitlement to future treatment and no entitlement to past or future care; claim limited to past and future economic loss and past treatment, and costs; claimant offered little by way of past treatment; limited employment; determined past loss of earnings as a buffer of $50,000; nothing for future loss of earnings; past treatment $5,279.45; total damages assessed $55,279.45; costs conceded by agreement.
DETERMINATIONS MADE:	CERTIFICATE In accordance with Part 4.4 of the Motor Accidents Compensation Act 1999, the Commission’s assessment is: 1. The amount of damages assessed in respect of this claim is $55,274.45. 2. The amount of the claimant’s costs in the matter is $17,963.49, inclusive of GST.

STATEMENT OF REASONS

INTRODUCTION

The Hearing commenced at 10.00 am and concluded at 12.35 pm.
The Insurer had previously admitted liability.
The Claimant had been assessed by various Assessors with the Medical Assessment Service (MAS) and Medical Assessors with the Personal Injuries Commission (PIC).
The final assessment to which I must have regard is that of Dr Wijetunga who assessed the Claimant as having a cervical spine – whiplash associated disorder of 5% Whole Person Impairment with a Certificate dated 28 September 2023.
Assessor Dr Fukui certified on 8 November 2023 that the Claimant had not suffered any psychiatric injury arising from the subject accident.
Previous assessments had concluded that the Claimant was not entitled to past or future domestic assistance as she fell below the threshold.
At the time of the accident the Claimant had been on unemployment benefits for some 5 years and the Insurer thus submitted she was not entitled to make a claim for past or future economic loss.
The Insurer conceded an amount of $2,345.40 for past treatment expenses that they had paid on the Claimant’s behalf up to 5 August 2021. They sought a credit for that amount. There was also a Notice of Charge to Medicare totalling $4,712.25 which the Insurer was prepared to concede $2,420.10. The Claimant had provided invoices for treatment incurred at a Chiropractor totally $513.95. The Insurer objected to that sum on the basis that it was neither reasonable nor necessary as well as an amount of $52.95 for a product which contained magnesium which the Insurer also objected to.
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 is the Claimant’s future treatment expenses?
d.     What is the Claimant’s past economic loss?
e.     What is the Claimant’s future economic loss?

BACKGROUND

The Claimant was 35 at the time of the accident and is now 42.
Ms Hasanovic was reversing into a parking space when a Woolworths delivery van overtook her and collided heavily with the side of her vehicle. She felt the impact mainly on her right side but was thrown around the cabin to the left and her pelvis and left thigh hit the glovebox and subsequently she has had ongoing neck and lower back pain with no radiation into the legs or arms.
She did not have a happy childhood in that she was sexually assaulted and was subjected to domestic violence.
Prior the accident she was diagnosed with depression, anxiety, and bipolar disorder. She had received treatment from a Psychiatrist in Hospital and was admitted for example in 2009 for drug induced psychosis and an overdose. Her drug use has impacted on her ability to comply with mental health treatment. She has been using marihuana occasionally with ice (methamphetamine) from young adulthood.
She had previously given birth to a son who is now about 18 and a daughter who is now about 12. Both children are in the care of DoCS, now called Department of Family and Community Services (DoFCS). The children were in the care of their grandmother, the Claimant’s mother for many years and she was constantly trying to regain custody, but clearly her lifestyle was not conducive to her obtaining custody. This added to the Claimant’s stress.
In or around 1997 she was a passenger in a car with her father when he had a single vehicle accident in which she apparently suffered neck and back injuries.
Father and daughter then got in a taxi and an hour later that taxi was rear ended and she again sustained injuries to her neck and right knee. Her drug dependence may have dated from that time.
The Claimant has had a very poor work history prior to the accident. On one occasion she was working with Qantas when she was struck by a swinging pole at the junction of the nose and forehead. She was assessed as having 3% WPI in relation to loss of smell, nasal obstruction, and facial deformity.
Her drug dependence continued and she attempted suicide on at least 2 occasions. She was jailed on 2 occasions for driving under the influence of drugs for which she received 3-month sentences.
She experienced homelessness and lived in refuges. Prior to the accident she had hit the back of her head on 3 occasions with falls and suffered constant headache together with bilateral occipital regional headaches. She was distressed and anxious due to Court appearances for custody issues and criminal driving offences.
A Dr Matthew Davies Psychiatrist in a report dated 22 February 2016 diagnosed the Claimant as having borderline personality disorder, methamphetamine abuse in part in early remission and marihuana abuse. The Claimant had chronic intermittent passive suicidal ideation, and there had been 2 previous suicide attempts, before the Claimant was incarcerated and after she lost custody of her son.
The Claimant explained that she did not believe that she had a bipolar disorder but had suffered a psychotic episode following her drug abuse.
The Claimant had long attended her GP Dr Judge who treated her both well before the accident and well after. All parties had benefit of her extensive clinical notes.
By late 2018 she seems determined to have turned her life around. She attended a new Counsellor through Victim Support Services and started making new plans to regain custody of her children. She also made an Application to the National Disability Insurance Scheme for financial support.
In early 2019 she attained a job in a catering company called “Chefs on the Run” but by 2020 she had lost that job due to Covid 19.
Notably she did not have any issues noted while she was employed. She indicated that she only wanted to work a maximum of 15 hours which she admitted at the Hearing was because she did not want it to impact on her Disability Allowance.
By October 2019 she had regained custody of her children. She also indicated at the Hearing that she was happy to give up work given that she felt that her young daughter should have the benefit of a fulltime mother.
She remains out of work and admitted that she had not applied for any employment since her dismissal due to Covid.

THE HEARING

Given that the Claimant was self-represented I took the opportunity to explain in some detail the limitations of her claim given the determinations of the independent medical assessors, whose decisions were binding on me. I explained to her the limits of her claim for damages and invited her and the Insurer to have settlement discussions. The Hearing was adjourned for some 30 minutes to allow those discussions to take place.
When the Hearing resumed, I was advised that although the parties had attempted settlement in good faith the Insurer’s Solicitor was in difficulties because he found it hard to explain the pay back provisions that Centrelink may enforce and felt that he was under an impossible conflict. I shared his concern. The Hearing resumed.
During the course of the Hearing, I was made aware that the Claimant had previously instructed 2 law firms, Law Partners and Slater and Gordon. Given that the Claimant was not aware that she was able to claim some of her legal costs I made Directions at the conclusion of the Hearing to the effect that the Insurer’s Solicitors should make submissions as to the costs they were prepared to allow and the Claimant was then to reply with 7 days, that is by 30 April. Those Directions were complied with after the Hearing by the insurer. I received a message on the portal that the claimant objected to the insurer’s costs submissions but with no reasons particularised what it was she objected to. I therefore determined costs on the basis as set out below.

WHAT IS THE NATURE AND EXTEND OF THE CLAIMANT’S INJURIES

Clearly the Claimant had significant pre-existing physical injuries and psychiatric injuries.
While still instructing Slater and Gordon they best summarised her claim when replying to the Insurer’s Particulars in a letter dated 4 March 2020. They expressed the claim in the following terms:
“In the subject accident the Claimant sustained injuries to her cervical spine, right shoulder, lumbosacral spine and transient injuries to her left hip and knee. In addition, she sustained psychological injuries including an aggravation of a pre-existing psychologist symptoms.
In relation to our client’s disabilities, we advise that she continues to suffer from regular and debilitating headaches, neck pain with restriction of movement, pain and restriction in her right shoulder and pain in her low back. The Claimant is unable to reverse park her motor vehicle due to the restrictions in her neck and shoulder without extreme difficulty. The Claimant’s previously controlled psychological symptoms have been materially aggravated. She has an additional symptom involving a phobia in relation to motor vehicle travel. The Claimant’s sleep is interrupted by a combination of pain and flashbacks of the accident. She feels fatigued during the day.”
The Claimant did not supply me with a Statement as I had previously directed and therefore, I was dependent upon the histories taken by the various doctors and in this case by her former Solicitors. I explained that was the situation to her and that if she wanted to add anything at any time, she should feel free to do so.
During the Hearing I questioned her about her injuries and ongoing disabilities as did the Insurer’s Counsel Mr Guihot. At the conclusion of the Hearing, I was satisfied that I understood Ms Hasanovic’s claim and that I had explained to her the numerous limitations of her claim.
The Claimant had been examined by her own expert surgeon Dr Neil Berry in August 2017 and again in May 2020. Dr Berry took a history that she was shaken and dazed by the impact but did not require going to hospital. She suffered soft tissues injuries to her neck, right shoulder, back and tailbone area. He opined that her right shoulder had resolved but that she had persistent pain and restriction of movement in the neck and back. He was of the opinion that her present condition is as a direct consequence of the motor accident. He believed that she should continue with home exercises but also have physiotherapy from time to time for flareups. His prognosis was that given that it had now been 4 years since the accident that her symptoms should persist for at least the next 2 years. He did not expect any long-term deterioration. He thought she was fit for work with lifting restrictions. He believed that she was 5% WPI for the neck and 5% for the lumbar spine thus putting her below the threshold for any assessment.
The Insurer arranged for the Claimant to be examined by Dr John Cummine in October 2017. He diagnosed minor soft tissue injuries to the neck, right shoulder, left side and back.
Assessor Thomas Rosenthal was requested to examine the Claimant with respect to a treatment dispute. He had the benefit of multiple medical reports including the opinions of Dr Cummine and Dr Berry. He accepted that she had sustained soft tissue injury to the neck and back and possible soft tissue injury to the right shoulder. He thought that the injury she presented with should have resolved within 12 months. He noted she had a background of degenerative changes noted on radiology he had noted considerable restrictions in her range of movement in both her neck and right shoulder and believed she was consisted with her presentation. Nonetheless he believed that her injury should have resolved within 12 months.
She was then assessed by Assessor Nelukshi Wijetunga in September 2023.
Dr Wijetunga had the benefit of all of the previous medical reports from specialists and experts, as well as all of the Claimant’s clinical notes and radiological investigations. She noted on examination that the Claimant had some severe restrictions in her cervical region as well as her right shoulder.
My perception is that Dr Wijetunga gave a very thorough examination of the Claimant as well as undertaking a thorough examination of the previous medical records. She noted that the clinical records do not report any objective evidence of ongoing chronic neck pain prior to the subject accident. The accident involved a collision of her stationary car with a truck while her head was rotated to the left side. The accident was of relative significance in that the car was towed and that she described immediate onset of neck pain for which she consulted her doctor. Dr Wijetunga said the mechanism of the accident is clinically relevant to the onset of neck pain which is predominantly right sided and given that she most probably had hyper-extension of rotated cervical spine, her spine is causally related to the accident. She went on to say that the imaging suggests possible irritation of exiting right C4 and exiting C5 nerve roots with degenerative spondylosis. However, the neurological examination did not reveal any signs of radiculopathy which is a required diagnosis as per the MAA Guidelines. Dr Wijetunga noted that the Claimant has muscular tenderness and para-spinal muscle guarding, with increase of neck and upper back pain with elevation of her right shoulder. This correlates clinically with a diagnosis of whiplash associated disorder which she then determines was caused by the subject motor accident. I adopt Dr Wijetunga’s opinion of her physical injuries. She found 5% WPI of the neck region only.
With respect to the Claimant’s psychological impairment Ms Hasanovic has obviously had very complicated pre-existing psychological injury and impairment. She has had the benefit of psychiatrists and psychologists attending to her from a very young age.
Assessor Fukui in the report dated November 2023 noted that Ms Hasanovic only obtained custody of her children in 2019. She had access to her children but they were not in her care due to her extensive psychiatric substances and forensic history.
She noted a history of anxiety and depression at a young age and started using illegal substances at age 17. She started using cannabis and by age 20 she was using cannabis and ice. She was also abusing Oxy Contin. She denied intravenous drug use. She was exposed to domestic violence perpetrated by her father towards her mother while growing up. During her teens she was sexually abused by a group of people but never sought help. She feared for her life. She attended drug rehabilitation programs twice. She has had two suicide attempts one in 2000 and the other in 2009. She had a psychiatric hospital admission in 2009 for drug induced psychosis and overdose. Her children were removed by DoCS. She has been on the Disability Support Pension since 2010 for “PTSD, anxiety, depression, bipolar and stress”. She has attended a Psychologist and Psychiatrist. She decided to stop using illegal substances in 2016 to get her life back and stopped using drugs from 2016. She has experienced domestic violence from the father of her daughter who was also a drug user. From 2016 to 2019 she has had to prove that she was stable and fit to look after her children and to not use drugs.
She had another motor vehicle accident 1 year after the subject motor accident which she blames on her inability to move her neck sufficiently to avoid accidents.
Ultimately Dr Fukui reported:
“Ms Hasanovic reported with a longstanding history of psychiatric problems with reported anxiety and depressive symptoms since childhood and onset of substances use disorder in her teens. Her history is suggestive of an underlying borderline personality disorder with cannabis and methamphetamine use disorder being in remission since 2016. She complained of chronic pain and her presentation was pain focused. There was no evidence of currently clinical impairment and she has been functioning significantly better than she was prior to the subject accident. She has been functioning as a responsible parent to her children since she regained custody 4 years ago. Therefore there is no evidence of a psychiatric disorder or diagnosis related to the subject accident.”
Dr Fukui therefore found that there was no psychological injury causally related to the subject motor accident. I accept that opinion.

WHAT IS THE CLAIMANT’S PAST TREATMENT EXPENSES

The Insurer conceded $2,345.40. Of the Medicare Notice of Charge totally $4,712.25 the Insurer conceded $2,420.10. Although invited to do so the Claimant made no further submissions with respect to the balance of the treatment costs charged to Medicare. The Insurer’s justification was that it related to psychological treatment which has been found not to be caused by the subject accident.
The Claimant sought a further $513.95. I can well understand the Claimant seeking further treatment for her neck pain and I therefore allow it. I can find no medical justification for the magnesium totalling $52.95.
I therefore allow Past Treatment Costs as follows:
Section 83 Payments  $2,345.40
Medicare  $2,420.10
Chiropractic Treatment  $513.95
Total  $5,279.45

WHAT IS THE CLAIMANT’S FUTURE TREATMENT EXPENSES

I am bound by the Assessor’s determinations not to allow anything for Future Treatment Expenses.

WHAT IS THE CLAIMANT’S PAST ECONOMIC LOSS

The Claimant states that at the time of the subject accident she was in fact about to attend an employment interview. Given that I have no other evidence I accept that to be the case. The Claimant later went on to work as a catering assistant/kitchen hand for Chefs on the Run working approximately 14 hours per week and averaging $397.17 net per week. In my assessment the Claimant was demonstrating a determination to return to the workforce once her daughter had been established in her new household and settled into school.
Slater and Gordon in their submissions note that at the time of the accident the Claimant was attending an agency called Blue Collar Recruitment.
Slater and Gordon also submit that there are many issues bearing upon the assessment of Economic Loss and that any claim should be put forward on a global basis by way of a “Buffer”.
The Insurer submits that no damages should be awarded for Past Loss for the following reasons:
·The Claimant had been on Centrelink Disability Pension for over 5 years prior to the accident.
·Her employment capacity was significantly restricted prior to the accident due to her depression, anxiety, frustration, drug abuse, psychological disturbance and borderline personality disorder.
·The Claimant applied for another job interview within 3 months of the accident.
·The Claimant sustained minor soft tissue injuries which have long since resolved and do not affect her employment capacity.

I respect the Insurer’s submissions and note Mr Guihot’s cross examination regarding other minor injuries that the Claimant has sustained since the subject accident. Nonetheless I think a buffer is appropriate and allow the sum of $50,000 which I note is about 2.5 years of a loss of about $400 net per week.
I make no allowance for superannuation.

WHAT IS THE CLAIMANT’S FUTURE ECONOMIC LOSS

I presume the Claimant would submit that a buffer would be appropriate. The Insurer submits no allowance should be made.
In my assessment the Claimant is capable of returning to work on a restricted basis and there is no reason now why she should not do so. I therefore make no allowance for the future.

ASSESSMENT OF DAMAGES SUMMARY

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

Economic losses
·Past loss of earnings  $50,000
·Future loss of earnings (incl. superannuation)  $0
·Past treatment (incl. s 83 payments)  $5,279.45
·Future treatment  $0
·Past domestic assistance  $0
·Future domestic assistance  $0

TOTAL DAMAGES ASSESSED $55,279.45

The claimant’s economic losses are to be reduced by and the insurer is to have credit for the following payments in accordance with s 130:
·Section 83 payments $2,345.40

COSTS AND DISBURSEMENTS

I assess the Claimant’s legal costs and disbursements in accordance with s 149 and 150 of the Act and the Motor Accidents Compensation Regulation 2015 in accordance with the attached sheet and my reasons for any disputed claims are as follows:
a.I allow professional costs as conceded by the insurer.
b.I allow Disbursements as conceded by the insurer, allowing the regulated fee of $1387 for each of the reports of Dr Berry only.

[2024] NSWPIC 221

1 May 2024