Aryan v Insurance Australia Limited t/as NRMA Insurance

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Aryan v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 383
CLAIMANT:	Arash Aryan
INSURER:	Insurance Australia Limited t/as NRMA Insurance
MEMBER:	Bridie Nolan
DATE OF DECISION:	15 July 2024
CATCHWORDS:	MOTOR ACCIDENTS - Claim for damages; claimant suffered soft tissue injuries; claimant self-employed in a panel beater business prior to motor accident; claimant did not return to working in his business until 2020; medical evidence supports finding that the claimant was fit to return to pre-injury work capacity in 2018; rehabilitation reports demonstrate that claimant had failed to mitigate his loss; Held – claimant awarded damages for past loss of earnings to the date he had recovered to return to pre-injury duties and/or when he failed to mitigate loss.
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 $61,656.80. 2. The amount of the claimant’s costs in the matter is $21,585.30 inclusive of GST. A statement setting out the Commission’s reasons for the assessment is included with this certificate.

STATEMENT OF REASONS

INTRODUCTION

Aryan Arash (the claimant) was injured in a motor vehicle accident on 31 January 2018, for which the insurer has admitted liability. The claimant brings a claim for damages for personal injury arising out the motor vehicle accident. The claimant suffered injuries to his neck, both shoulders, lower back, left leg, nose and jaw.
There is no allegation of contributory negligence.
The claimant’s impairment caused by the injuries he suffered in the motor accident is not greater than 10%. The claimant is entitled to claim damages for past or future economic loss due to loss of earnings or the deprivation or impairment of earning capacity.

Background

The claimant was born in Iran in 1979. His family migrated to Australia when he was about 5. He completed his education in Australia, finishing school in or about year 11 to attend an electronics course. He returned to college to complete his HSC, and then upon completion, he commenced working for an electronics firm. He thereafter worked as a security guard. He then completed an apprenticeship in panel beating and commenced working in smash repairs qualifying in 2005. In 2007, he started his own business. By 2017, he says that he was earning approximately $1,275 net per week working in his own business.
The claimant was driving his vehicle northbound along Port Hacking Road approaching the intersection of Box Road. A van, driven by the insured driver, was waiting to turn right into Box Road from the opposite direction of Port Hacking Road. The insured vehicle edged into the claimant’s lane. The claimant attempted to avoid the van, but the van continued into the intersection driving across the claimant’s path causing a collision between the two vehicles. The claimant was travelling at 70kmph at the time of the accident. He states that the accident was severe. His vehicle was not able to be driven following the accident.
The claimant says that he underwent physiotherapy for his injuries twice a week, with one session of remedial massage. He found both helpful. Both treatments ceased when the insurer stopped paying them. He saw an ear, nose and throat specialist (ENT) for his breathing problems due to deviated septum. He also underwent psychological counselling on two occasions, the first, privately and the second, paid for by the insurer.
The claimant says he has unable to return to his business for both physical and psychological reasons until late 2019. Due to the time away from his business, the claimant says his income has reduced considerably. He says that he has difficulty sanding, which causes shoulder pain.
He has taken on paintless dent repair where rods are used to manipulate the dent out of the panel from behind. This requires lighting which the claimant says are very hard on his eyes. He says that he can earn up to $1,500 a day gross for this work but cannot perform it five days a week due to the strain on his eyes.
In his more recent statement, the claimant says he is currently concentrating on buying and selling cars as this suits his capacity better. He says he has restrictions performing paintless dent repairs. He says he can suffer symptomology from his injuries after working for one to two days or sometimes it can continue for weeks.
He wants to keep working as he is concerned about his future due to his injuries. He goes to the gym between 3 – 5 times a week, where he feels aware of his physical restrictions. He has commenced running which he says aggravates his shoulders and causes pain. He says he takes medication and has remedial massage as needed. He sees his general practitioner.
The claimant’s underwent rehabilitation which was overseen by Benchmark Rehabilitation (Benchmark). In May 2018, the service noted that the claimant was able to sit, stand and walk on an unrestricted basis. The claimant was jogging 8km twice per week. A case conference was convened in August 2018 which the claimant failed to attend. At that time, it was believed that the claimant could progress to working fulltime hours albeit with restrictions.
A further case conference was convened in November 2018. The claimant again failed to attend as he was at the gym. At that time, it was noted that the claimant attended the gym every day for two hours at a time. It was further observed that the claimant’s physiotherapist believed he was fit for work and had discharged him from care. The physiotherapist specifically advised Benchmark that her observations of the claimant engaging in gym activities were consistent with his being able to return to fulltime work. The claimant was issued with certificates of capacity by the claimant’s general practitioner, Dr Luo, during this period.
The claimant’s final attendance at the Epping Medical Centre was on 7 November 2018. At this time, it was recorded that the claimant was attending the gym for up to three hours per day. Dr Luo recorded that the claimant refused to go back to normal duty and when this was mentioned. He preferred to find another doctor to look after his case.
The claimant thereafter did not access structured treatment or to identify an alternative, general practitioner to manage his care. Benchmark continued to engage the claimant for a further two months, but the claimant failed to return phone calls or commit to any planned action.
The claimant has not received any formal treatment since 2018.
On 20 August 2020, the claimant informed his physiotherapist that he had injured his knee playing soccer. The claimant has subsequently confirmed in particulars that he continued to engage in competitive soccer.

MEDICO - LEGAL EVIDENCE

Dr Giblin in a report dated 18 November 2020 records that the claimant says that most of his post-accident symptoms have resolved except for ongoing burning and sharp pain and clicking in both his shoulders. The symptoms are aggravated by heavy repetitious impact work with his arms. He manages to mow the lawns and keep the gardens at home but does so on a piecemeal basis. He avoids lifting heavy weights, if possible, because of increasing symptomology. He gets less than three hours sleep at night because he cannot roll onto either side.
Following an examination, Dr Giblin opined that the claimant’s condition is stable, and his general prognosis is reasonable not withstanding and expectation of recurrent symptoms, minor permanent physical limitations and the prospect of long-term deterioration and future surgical considerations. Specifically, he said that the claimant is unfit to use his upper extremities for prolong repetitious and impact activities for using heavy vibrating machinery above the shoulder height. He remains fit for his current work environment. He opined that the long-term deterioration of his injuries will be manifested by increasing pain and physical restrictions so that it will gradually shred his work opportunities in the open labour market.
In a report dated 30 April 2021, Dr Robin Mitchell recorded that the claimant had undergone conservative treatment and physiotherapy for his injuries. The claimant reported to continue to have pain in the lower neck on each side radiating out to the upper trapezius muscle. The pain would occur between a level of 5/10 and 8/10 on a Visual Analogue Scale. The claimant no longer had any separate pain in either shoulder. He had no back pain or any other significant symptoms. He was fully independent with respect to his personal activities of daily living. He carried out the usual physical activities within the home where he lives alone. He described his symptoms as having been stable now for 12 months.
In the doctor’s opinion the claimant had a current capacity for suitable full-time work that would avoid any aggravation of the reported symptoms and providing necessary precautions were available. The doctor opined that the claimant should manage all physical activities below mid chest height and close to the body trunk particularly if repeated or sustained in nature to avoid aggravating his symptoms. Fixed and awkward spinal postures should be avoided, and frequent posture movement should take place throughout the day. The diagnosis was soft tissue injury pain in the lower neck in the absence of any objective clinical or radiological evidence of underlying injury.
In a report date of 19 May 2021, Dr Mark Kneebone, psychiatrist, recorded that the claimant recalled experiencing fluctuating mood characteristics such as loss of energy, enjoyment, interest, and weight and suicidal thoughts between April 2018 and late 2018. He had described himself as being in a dark place for at least eight months. The claimant attributed its psychological distress to his relationship break up, disputes with the insurer about who was at fault in the accident and his pre-injury income, the decline of his business and his ongoing pain and loss of function in his upper limbs.
The doctor formed the clinical impression that the claimant presented with the three-year history of depressed mood largely arising as a result of the psychosocial consequences of the motor vehicle accident which included a relationship break up, disputes with his insurer, decline of his business and financial difficulties. In 2019, the claimant had experienced improvement in his mood and physical functioning after he committed himself to a program of daily exercise. Despite this he continued to experience significant motivational difficulties with regards to rebuilding his business and only working one to two days every two to three months simply carrying out hail damage repairs. He had declared that he was not actively seeking out new clients. The doctor formed the view that the claimant’s current limited work function was largely a conscious choice on his behalf noting he did not report any impairment in his self-care, social and recreational functioning, capacity for travel and interpersonal functioning. The doctor also noted that his physiotherapist and general practitioner had independently expressed the opinion that he was fit to return to his pre-injury duties on
25 October 2018 and 2 November 2018, respectively.
In a report dated 19 August 2021, Dr John Davis records that the claimant told him that he was absent from work for a period of eight months. Although he attempted to return to work, he was extremely restricted. One of the major difficulties he had was a psychological response due to having to reject work over such a long period and concerns for his business. He was subjected to the effects of the COVID-19 outbreak. During lockdown he was performing minor repairs such as dent repairs and hail repairs. His treatment included physiotherapy which he attended a dozen times and has undergone remedial massage for about 30 to 40 sessions. He was seen by Dr Hannell, an ENT surgeon who performed reduction of his fractured nose and septoplasty in March 2018. He was seen by
Dr Dunlop and ENT and facial cosmetic surgeon who discussed reconstruction of his nose. He decided against such intervention.
Dr Davis diagnosed the claimant with a chronic soft tissue injury to the scapular region and a soft tissue injury of both shoulders with a likely degree of bursitis. He recorded his continuing disability to be repetitive activities at above shoulder height placing force on the shoulders, exposure to vibration or jarring and long periods of continuous repetitive movements in rotation or other planes. He opined that his continuing disabilities would result in an aggravation of his symptoms while undertaking normal duties as a panel beater. He was capable of performing some lighter activities on a reduced hours basis, to 30 hours per week. His involvement in buying and selling cars also included repairs and some requirement for refurbishment of the vehicles with some of these activities expected to result an aggravation and associated periods of reduced capacity or lost time. His physical and functional capacity were not expected to change dramatically in the future based on current investigations although it would be advisable for him to undergo an ultrasound study of his shoulders to determine if there was any pathology present which may result in difficulties in the future.
Medical Assessor Alan Home in his certificate and reasons dated 10 May 2023 recorded that the claimant reported experiencing intermittent mild neck pain usually associated with awkward sleeping postures, and no daytime pain symptoms. The claimant had regained good range of motion of his neck. He described local pain at the anterior and superior aspects of the left shoulder associated with loading of the joint and with overhead lifting. He had regained full range of motion at the shoulder. At the right shoulder he described similar but less severe symptoms of anterior and superior shoulder pain exacerbated by activity. He was tolerant of lying on his side at night. He woke from his sleep when he rolled on the other side. He recorded that the claimant attended the gymnasium five to six days a week but there was some limitation in his capacity for weightlifting. He had resumed fishing and did not experience right shoulder pain when casting.
He opined that the claimant had suffered soft tissue injuries, in his cervical spine and left and right shoulder with an AC joint sprain, likely capsular injury to his left shoulder.
In a further report dated 4 September 2023 Dr Robin Mitchell recorded that the claimant continues to have pain in the lower neck, with tightness on the right side, together with separate pain in the shoulder and described his neck pain is varying between a level of 2/10 and 9/10 on a Visual Analogue Scale. He reported that any significant physical arduous activity would make the neck and shoulder symptoms more severe, as does lying down at night. He tends to have fewer symptoms when he undertakes light physical activity. He is independent with respect to his personal activities of daily living he described symptoms have been stable for more than 12 months.
In answer to specific questions with respect to the claimant’s earning capacity, the doctor opined that the claimant’s reported that he would experience increased pain if he were to undertake any prolonged arduous manual handling tasks required at times in his previous panel beating work, but were not experienced in his new role where he was paid more per hour than when he was a panel beater. He recorded that the claimant acknowledged that he could manage up to 30 minutes of car detailing and spray painting to further augment his earnings through the sale of used vehicles. The doctor opined that the claimant may have had difficulty for the initial two or three months after the subject motor vehicle accident before he had sufficiently recovered to return to work which did not involve sustained or arduous physical activities below mid chest height and close to the body trunk particularly if repeated or sustained in nature to avoid aggravating symptoms it was also found that it would be appropriate. He further opined that frequent manual handling actions should be limited to 15kg in force with respect to lifting carrying pushing and pulling actions with occasional weights of up to 25kg a possibility. Fixed and awkward head and spinal postures were to be avoided by ensuring regular posture movement during the day.

SUBMISSIONS

Claimant’s submissions

The claimant submits he was steadily building up his business activities prior to the motor vehicle accident. He submits that as a result of his injuries suffered in the accident his capacity to work and pursue his business activities was restricted. He says his restrictions were total for a time and are now partial.
He submits he was earning approximately $1,275 net per week prior to the accident and claims the following for past economic loss: 300 weeks x $1,275 net per week = $382,500 less sums paid by the insurer and less actual earnings from late 2019 to date.
He further submits that by reason of his injuries, disabilities, and impairment he continues to suffer a reduced capacity to earn and is at a disadvantage in the open labour market. He claims the sum of $500 net per week is claimed to age 70, as follows: $500 net per week x 783 x 0.85 = $332,775.

Insurer’s submissions

The insurer relies on the available treating evidence and submits that within a year of the accident, if not earlier, the claimant was fit for his pre-injury duties.
The insurer observes that in December 2018, the claimant was invited to engage in a rehabilitation program, but he ultimately declined, and the rehabilitation program was closed in February 2019. The insurer therefore submits that the claimant failed to mitigate his losses from February 2019 and up to the date when he returned to work.
With respect to the claim for past economic loss, the insurer accepts that the claimant was likely unfit for work for several months post-accident and was fit for reduced duties until in or about November 2018 when the claimant was considered by his treating doctors to be fit for his pre-injury work.

REASONS

Past economic loss

The claimant has received $42,172.20 in statutory benefits payments until September 2018, for which the insurer seeks a credit.
I have considered his tax return material which was the subject of much dispute and cross examination at the oral hearing before me. There was an overarching submission that the claimant’s pre-and post-accident tax return records were not reliable indicators of loss and do not correlate with his capacity to earn. Based on the medical and rehabilitation evidence which I discuss further below, I consider there to be some force to this submission. There is a distinction between loss of earning capacity and loss of earnings. A claimant is compensated for a diminution in earning capacity, so long as that diminution is productive of financial loss, and not for loss of earnings as such. Professional assessment of the claimant’s injuries, and his functional capacity are in the circumstances of this case more reliable indicators of the loss of capacity suffered than the financial loss recorded.
Although the claimant says that he did not return to work properly until the end of 2019, this is not consistent with the medical evidence with respect to the resolution of his injuries, which were all soft tissue in nature; that is, in the absence of evidence of any underlying pathology in the left shoulder.
The insurer accepts that the claimant may have experienced an initial incapacity for work by reason of his physical injuries. As discussed above, however through 2018 the treating medical evidence suggests an ongoing improvement in the claimant’s condition with the claimant demonstrating a capacity to engage in various physical activities and sporting endeavours.

Despite this evidenced improvement, in October 2018 the claimant advised Benchmark that he had ceased work completely and handed in the keys to his workshop. This decision does not correlate with his evidenced, physical capacity at that time.
It is self-evident that the claimant benefited from physical activity such as attending the gym, running, playing soccer and recreational fishing which all improved his physical state. His ability to participate in these activities yet not attend to his pre-injury duties is unambiguously incongruent.
There is also a dispute as to whether the claimant took all reasonable steps to mitigate his loss. Section 4.15 of the Motor Accidents Injuries Act 2017 (the Act) provides that an injured person in under a duty to mitigate the damages. The insurer relies on the rehabilitation reports of Benchmark, which are admissible evidence of the steps taken by the claimant to mitigate his loss.
It is evident from the Benchmark rehabilitation reports that Benchmark arranged a case conference with the claimant and his general practitioner on 2 November 2018. The claimant failed to confirm his attendance during liaisons on 29 October 2018 informing Benchmark he would like to see a different physiotherapist and is of opinion he requires a referral to a specialist due to back pain. Benchmark informed the claimant these matters could be discussed with his general practitioner in the case conference and the general practitioner would make the referrals, if necessary.
The claimant again failed to confirm his attendance at the case conference when Benchmark contacted him on 1 November 2018 asking him to confirm his attendance to the case conference.
On 2 November 2018, the claimant informed Benchmark he would not be attending the case conference as he did not feel meeting with his general practitioner and Benchmark had any benefits. The claimant informed Benchmark that he would be going to the gym for two hours at the time of the case conference.
Benchmark met with his general practitioner on 2 November 2018 during the time of the scheduled case conference. The claimant’s investigations were reviewed and the claimant’s general practitioner informed Benchmark the fracture the claimant sustained to his nose has now healed. The claimant’s general practitioner confirmed the claimant sustained whiplash and soft tissue injuries during the accident. The claimant’s general practitioner informed Benchmark he planned to upgrade the claimant’s Certificate of Capacity to pre-motor accident duties with nil restrictions during his next review which should be on 6 November 2018 when the claimant’s Certificate of Capacity ended.
The claimant informed Benchmark on 13 November 2018 that he saw his general practitioner but due to his doctor’s English being limited and him not being “happy with Dr Luo’s knowledge” he has decided to change general practitioners. He did not receive a new Certificate of Capacity during the consultation.
It is clear from the Benchmark reports the claimant did not participate fully in the rehabilitation program and, when read together with the medical evidence, that his non-return to work was predicated more on his choice rather than restrictions occasioned by his injuries. The restrictions of which the medicolegal specialists opined related to self-reported symptoms which were, in my view, incongruent with the claimant’s regular and extended gym sessions. There is no radiological investigation which explains the claimant’s ongoing reported symptoms. Viewed in the context of the opinions of the claimant’s treaters and his engagement with Benchmark, which I interpose, on my reading of the material, was evasive, I am not satisfied that the claimant was unfit for pre-accident duties as at 6 November 2018. And, further, and in any event, I am persuaded by the insurer’s submission that the claimant’s failure to properly attend his rehabilitation amounts to a failure to mitigate his loss.
I accept the insurer’s submission that the claimant ought to have recovered fully from his injuries towards the end of 2018 (the Benchmark reports suggests the relevant date is
6 November 2018) and that ongoing absence from work is not explained by incapacity, or, if it is, then that incapacity is impugned by the failure to mitigate his loss.
I consider that the most reliable indication of the claimant’s pre-injury capacity is his net income for the business recorded on his tax return for 2017 in the amount of $64,018, which equates to $1,231.12 per week.
I would assess the claimant’s recovery at as seeing him fit to return to his pre-injury duties on 6 November 2018 which equates to 39 weeks and five days, which I will round up to 40 weeks. Therefore, I assess the claimant past economic loss as $49,244.80. The insurer receives a credit $42,172.20 on that sum.
The claimant is entitled to a Fox v Wood damages of $12,412.
No claim is made for superannuation.

Future economic loss

Given my findings on past economic loss, I am not satisfied that the claimant has made out a claim for future economic loss. I make no allowance for that head of damage.

COSTS

I have assessed costs in the amount of $21,585.30 in accordance with the attached schedule.

[2024] NSWPIC 383

15 July 2024