Azer v Transport Accident Commission

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Azer v Transport Accident Commission [2024] NSWPIC 359
CLAIMANT:	Rinih Azer
INSURER:	Transport Accident Commission
MEMBER:	Stephen Boyd-Boland
DATE OF DECISION:	5 July 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; damages claim; non-economic loss, past economic loss, and future economic loss; significance of pre-accident injuries; Medlin v State Government Insurance Commission; IAG Limited t/as NRMA Insurance v Damian Mares; Kallouf v Middis; Held – past economic loss absence of evidence for one period, future economic loss distinction between disability and diminished earning capacity; future economic loss allowed as a buffer.
DETERMINATIONS MADE:	CERTIFICATE 1. Under sub-ss 7.36(3) and 7.36(4) of the Motor Accident Injuries Act2017,I specify the amount of damages for this claim as $817,750. 2. The amount of the claimant’s costs, are $46,223.12 inclusive of GST.

STATEMENT OF REASONS

INTRODUCTION

The assessment conference took place on 15 April 2024.
Rinih Azer (the claimant) gave evidence and was questioned by counsel for the insurer.
Early in the assessment conference I raised with both parties some issues in relation to economic loss.
At the assessment conference, I made directions for the parties to provide “one page” submissions in relation to the economic loss issues within the next 48 hours.
The parties then provided the following:
(a)    insurer's further additional submissions dated 17 April 2024 on 18 April 2024;
(b)    24-04-18 Agreed Position of the Parties on 18 April 2024;
(c)    24-04-26 summary of payslips on 26 April 2024, and
(d)    24-04-26 claimant's submissions In Reply on 26 April 2024.
The parties had not provided submissions in relation to costs. The claimant provided these on 28 May 2024 and the insurer then responded on 31 May 2024. The insurer’s submission included that one figure in relation to the costs was “TBC”.
The insurer confirmed this on 26 June 2024.
The insurer has admitted liability.
The claimant relied upon injuries to the cervical spine, lumbar spine, right shoulder and psychological injury.
At the assessment conference the insurer conceded that the claimant had sustained injuries to the cervical spine, right shoulder and psychological injury. In relation to the right shoulder the insurer accepted an exacerbation of a pre-existing injury.
The insurer concedes the claimant is entitled to non-economic loss.
I am asked to assess damages in respect of the following;
(a)    non-economic loss;
(b)    past economic loss, and
(c)    future economic loss.
The “24-04-18 Agreed Position of the Parties” document provide that the following matters were agreed.
(a)    claimant’s date of birth: a date in 1973;
(b)    age at assessment conference: 51 years (3 months);
(c)    working life expectancy: 67 years;
(d)    years until retirement from assessment conference: 16 years;
(e)    5% multiplier for 16 years: 579.50;
(f)    rate of superannuation on net amount: 14.44% (as per table on page 25 of Furzer Crestani Handbook and decision of Najdovski v Crnojlovic [2008] NSWCA 175);
(g)    claimant’s position - Average weekly earnings prior to MVA: $807.20 net;
(h)    Respondent-insurer’s position – average weekly earnings prior to motor vehicle accident starting point $678 net;
(i)    Fox v Wood: $6,760, and
(j)    payback to QBE (Compulsory Third Party (CTP) insurer that paid statutory benefits): $165,697.89.
I have assessed the damages as follows:
·        non-economic loss $300,000;
·        past economic loss $213,000;
·        past loss of superannuation $23,430;
·        Fox v Wood (as agreed) $6,760;
·        future economic loss $240,000;
·        future loss of superannuation $34,560, and
·        Total $817,750.
From this amount there is a payback to QBE (CTP insurer that paid statutory benefits) in the sum of $165,697.89.

Documents considered

I have considered the documents provided in the application and the reply and any further information provided by the parties.
There was some uncertainty about exactly what version of documents the parties were relying upon.
It was confirmed at the hearing and via the portal with the parties after the hearing that the parties relied upon the following:
(a) the claimant provided a “Tender bundle” described as “24-02-22 Schedule of Claimant's Documents [With Attachments]” consisting or 465 pages, and
(b) the insurer provided a “Tender bundle” described as “AZER - Insurers Documents as at 12 April 2024 (1)” consisting or 487 pages.
Various other bundles had been provided and exchanged between the parties.

REASONS

Background

The claimant was born in 1973 in Egypt.
She was 45 years of age at the time of the accident on 17 July 2018 and 51 at the time of the assessment conference.
The claimant migrated to Australia in 1996. The claimant is married. She has two children, a son and a daughter both in their 20’s. The claimant is right handed.
The claimant lives with her husband and two children in their family home.

The accident

On 24 September 2018 at approximately 5.30am, the claimant was driving her motor vehicle along the M5 motorway, just prior to the Moorebank exit. She was driving in the left hand lane of the motorway.
The insured motor vehicle was travelling in the lane adjacent to the claimant’s, travelling in the same direction when the insured vehicle suddenly, and without warning, merged into the claimant’s lane and collided with the right side of her vehicle. The impact caused the claimant’s vehicle to spin several times. Her vehicle then travelled from the left to the right side of the motorway. The claimant’s motor vehicle collided with a wall several times prior to coming to a stop.
The police attended the scene. A tow truck collected the claimant’s vehicle and took her to a nearby petrol station, where she met her husband.

Post-accident medical treatment

The claimant attended her general practitioner (GP), Dr Tosson on the day of the accident. She was examined and provided with analgesic medication. Her doctor diagnosed the claimant as suffering muscular strain. She was certified unfit for work.
The claimant underwent a CT scan of her cervical spine on 25 September 2018. The scan demonstrated mild narrowing at the disc space and a small paracentral disc/end plate osteophyte complex at the C5/6 level. Narrowing was noted at the entry zone to the neural foramen and potential impingement at the right C6 nerve root.
On 26 September 2018 the claimant consulted Dr Tosson. She reported severe pain, weakness and stiffness in her cervical spine, right shoulder and upper arm.
She was referred to commence physiotherapy.
On 3 October 2018 the claimant underwent an MRI scan of her cervical spine. The imaging reported a C5/6-disc osteophyte complex in the right paracentral zone causing mild indentation of the cord. Possible irritation was identified at the right C6 root. On
11 October 2018 the claimant consulted her GP.Dr Jian Chyi Chan. She was certified fit for 40 hours of work a week.
On 13 October 2018 physiotherapist, Wei Ju Chang, prepared an Allied Health Recovery Request Form which noted pins and needles, numbness and heaviness in her right upper limb along with constant neck and right arm pain.
On 24 November 2018 the claimant attended her physiotherapist, Wei Ju Chang, for an initial consultation. She reported right upper limb and cervical spine pain associated with paraesthesia and numbness in her right hand. On examination, she had restricted cervical mobility and weakness with muscle guarding of her right arm.
On 26 November 2018 the claimant underwent an MRI scan of her right shoulder. The scan revealed mild acromioclavicular joint synovitis, bursal surface interstitial fraying and features of subacromial impingement.
On 3 December 2018 the claimant attended Dr Tosson. She stated that she was only obtaining limited benefit from physiotherapy and analgesic medication. She was referred to her neurosurgeon, Dr Abraszko.
On 9 February 2019 the claimant consulted Dr Tosson. She was certified fit for 40 hours of work a week.
On 4 March 2019 the claimant consulted Dr Tosson. She reported ongoing pain in her right shoulder and the right side of her neck. She had difficulties lifting her right arm above shoulder height, completing tasks of self-care and attending to housework. The claimant was certified unfit for work consequent to her ongoing restrictions.
On 13 March 2019 the claimant consulted neurosurgeon, Dr Renata Abraszko. The doctor noted she had developed severe neck pain following the accident which travelled to her right arm. On examination, the doctor observed decreased power of the right C6 disc with deceased sensation. She had pain when moving her neck towards the right and painful right lateral bending. The claimant was recommended to undergo an anterior cervical discectomy and fusion.
On 15 March 2019 the claimant consulted Dr Tosson. She was certified unfit for work.
On 19 March 2019 the claimant consulted Dr Tosson. The doctor reported that the claimant had a cervical spine disc injury and was unfit for work pending further review on
22 March 2019.
On 29 March 2019 the claimant consulted Dr Tosson. She described ongoing pain in her cervical spine, difficulties with heavy lifting, carrying and self-care. She had limited movement in her neck, right shoulder and upper arm. The claimant was certified unfit for work pending further review on 1 April 2019.
On 3 April 2019 the claimant consulted Dr Tosson, for review and management of her physical injuries and restrictions. The claimant was certified unfit for work until 5 April 2019.
On 5 April 2019 the claimant consulted sports physician, Dr Jin Lee. She described ongoing neck pain radiating to her right arm with restricted movement, intermittent numbness and daily colour changes to her hand and arm. On examination, Dr Lee observed that the claimant had guarding to her cervical spine, asymmetric shoulder posture and protracted neck posture. She was diagnosed as suffering whiplash and ongoing muscle spasms. Dr Lee recommended she continue with physiotherapy.
On 9 April 2019 the claimant consulted Dr Tosson. She was certified unfit for work.
On 10 April 2019 the claimant consulted Dr Abraszko. The doctor reported as follows:
“Rinih presented with severe right arm pain due to C5-C6 disc protrusion. She requires anterior cervical discectomy and fusion at C5-C6 level. Today, she has increased neck pain. The pain radiates down to her right arm. She decided to go ahead with the operation, C5-C6 anterior cervical discectomy and fusion. Her disc protrusion is related to her motor vehicle accident. Her right- sided arm pain is related to C6 nerve root compression. Due to the anterior compression of the spinal cord, a simple posterior foraminotomy will not improve her neck pain and right arm pain. At this stage, she is not fit for any work.”
The claimant’s surgery was not approved by the CTP insurer. Consequently, her surgery was postponed, causing an exacerbation in her symptoms and discomfort.
On 1 May 2019 the claimant consulted Dr Abraszko. She reported ongoing cervical and lumbar spine pain. The doctor made the following comments as to the CTP insurer’s decision to delay her surgery:
“The insurer alleged that she did not participate fully in conservative management including Whiplash Clinic and home-based exercise programme. Unfortunately, it is not true. She participated twice on 16 November 2018 and 5 April 2018 with Whiplash Clinic. She is also doing self-managed exercise programme. Her pain has not improved. She still has pain going down to her right side. She is developing complex pain syndrome on the right side; therefore, recommended her a new MRI of the cervical spine. The previous one done in October, six months ago, revealed right- sided disc protrusion compressing the right side of the spinal cord.”
Dr Abraszko recommended that the claimant undergo a dynamic MRI scan of her cervical spine with flexion and extension views to assess the compression of her spinal cord. The claimant was certified unfit for work as her role required her to perform physically arduous tasks such as picking/packing.
On 3 May 2019 the claimant attended Dr Tosson. She reported ongoing pain in her neck and right shoulder. She had associated stiffness and neuropathic pain in her right arm and forearm. There were frequent colour and temperature changes in her right upper limb.
Dr Tosson certified the claimant unfit for work until 5 July 2019. She was referred to Dr Balsam Darwish for further review.
On 6 May 2019 the claimant underwent an MRI scan of her cervical spine. The scan reported C5/6 protrusion. It noted Broad right C5/6 herniation contacting cord but without signal change or contour deformity, features accentuated with extension and C4/5 minor anterolisthesis, unchanged with dynamic manoeuvres.
On 14 May 2019 the claimant consulted neurosurgeon, Dr Balsam Darwish. She reported cervical spine pain radiating to the right arm with associated paraesthesia in her right hand. On examination, the doctor observed restricted neck flexion extension and rotation. She had decreased sensation over the lateral aspect of the right arm in the distribution of the right C6 dermatome. Both biceps and triceps were symmetrically depressed.
Dr Darwish opined that the claimant’s symptoms were consistent with C5/6 discogenic pain and right C6 radiculopathy. The doctor recommended that the claimant undergo C5/6 anterior cervical discectomy and fusion.
On 16 May 2019 the claimant consulted Dr Tosson. She was certified unfit for work.
On 23 May 2019 the claimant underwent review with neurosurgeon, Dr Abraszko. She described experiencing frequent and severe right arm pain, numbness and weakness. The doctor again sought approval for the claimant to undergo spinal discectomy and fusion.
On 1 June 2019 the claimant attended Dr Jian Chyi Chan. She was diagnosed with a cervical spine disc injury. She had functional restrictions on lifting, carrying, bending and twisting.
On 6 June 2019 the claimant was admitted to Mater Hospital under the care of Dr Abraszko. The claimant underwent a C5/6 anterior cervical discectomy and fusion at the hands of Dr Abraszko. Unfortunately, the claimant’s cervical spine discectomy and fusion provided temporary relief of her symptomatology. On 10 June 2019 the claimant was discharged from Mater Hospital.
On 19 June 2019 Dr Abraszko reported that she complained of right shoulder pain after the surgery, which most likely was due to the position during operation. She had limited movements of the shoulder up to the shoulder level.
On 19 June 2019 the claimant had a right shoulder ultrasound. The radiologist, Dr Balraj Sunner, reported subacromial bursitis and supraspinatus tendinosis.
On 2 July 2019 the claimant consulted Dr Tosson. She was certified unfit for work.
On 11 July 2019 the claimant consulted occupational therapist, Gabriella Nadalin. She reported ongoing pain in her right-cervical spine and right shoulder. She had associated radicular symptoms into her right hand and relied on the use of a walking stick for stability and support.
On 24 July 2019 the claimant consulted Dr Abraszko. The doctor opined that the claimant’s right shoulder pain was caused by bursitis, branching and impingement on abduction. She was diagnosed with subacromial bursitis and tendinosis.
On 30 July 2019 the claimant attended Dr Tosson. The claimant reported attending physiotherapy and taking analgesic medication with only temporary benefit. She remained unfit for work pending further review on 28 August 2019. The claimant felt anxious and jumpy whilst travelling as a passenger. Her capacity to drive was restricted by pain and psychological impairments. She was unable to return to work consequent to her physical injuries, low mood and anxiety.
On 6 August 2019 the claimant attended Dr Tosson. She reported difficulties coping with her ongoing pain, persistent discomfort and functional restrictions. Her sleep was frequently disturbed by pain, stress and anxiety. She woke feeling fatigued and exhausted. Her fatigue and ongoing disabilities caused her to feel depressed and frustrated. The claimant was referred to a psychologist, Keira Noble
On 13 August 2019 the claimant consulted physiotherapist, Mima Maskalah. She reported ongoing pain and stiffness following her spinal surgery. She had cervical tightness and stiffness in her thoracic spine. She was not able to rotate her neck to check and change lanes whilst driving, nor was she able to return to work or household duties.
On 21 August 2019 the claimant consulted Dr Abraszko. She continued to report right shoulder pain. On examination, impingement on abduction was noted.
On 26 August 2019 the claimant consulted a rehabilitation consultant, Luke Smith. Mr Smith noted ongoing cervical spine pain radiating down her right shoulder and right arm. She had limited capacity for prolonged standing, sitting and heavy lifting. Her sleep was frequently disturbed by pain and discomfort.
On 27 September 2019 the claimant commenced hydrotherapy with her exercise physiologist, Kimberley Lang. She attended twice weekly to increase her functional tolerances and regain independence for activities of daily living.
On 8 October 2019 the claimant attended her rehabilitation consultant, Luke Smith. On examination, she demonstrated restricted cervical spine range of motion and pain behaviours on neck rotation. The consultant recommended the claimant undergo a graded return to sedentary work.
On 18 October 2019 the claimant consulted her psychologist, Keira Noble. She reported feeling depressed, pessimistic and at a loss as to her current restrictions and functionality. The claimant felt guilty and ashamed that she could not return to work or her domestic responsibilities. Ms Noble administered the Depression Anxiety Stress (DASS) Scales, of which the claimant demonstrated extremely severe levels of depression, anxiety and stress. She opined that she was unfit for work and her capacity for domestic tasks was impaired.
On 6 November 2019 Dr Abraszko reported cervical spine pain radiating to her right shoulder, upper arm and into the digits of her right hand. She had difficulties with heavy lifting and carrying, overhead tasks and tasks requiring fine motor control, due to the paraesthesia in her right hand.
On 18 November 2019 the claimant attended Dr Tosson. She reported ongoing pain and discomfort in the right side of her neck, right shoulder and upper arm. There was associated paraesthesia and numbness. Dr Tosson opined that she required ongoing physiotherapy and hydrotherapy.
On 26 November 2019 the claimant underwent an ultrasound-guided right shoulder injection.
On 4 December 2019 the claimant consulted exercise physiologist, Kimberley Lang. She reported ongoing sharp pain in her cervical spine and right shoulder which radiated to her lumbar spine. She had reduced tolerances for prolonged sitting, standing and walking, limited cervical spine and right shoulder flexion and extension and persistent weakness in her right arm.
On 13 December 2019 the claimant attended rehabilitation consultant, Luke Smith. She reported experiencing severe anxiety, social withdrawal and car-related distress. Her sleep was frequently disturbed by pain and discomfort. She was attending hydrotherapy, exercise physiology and psychology with limited benefit. Mr Smith opined that the claimant was unfit for work consequent to her ongoing pain, disability and psychological injuries.
On 15 January 2020 the claimant consulted Dr Abraszko. She was referred for an MRI of her right shoulder following reports of ongoing pain.
On 13 February 2020 the claimant underwent an MRI scan of her right shoulder. The radiologist, Dr Gerrie Potgieter, reported that the scan demonstrated fluid within the subacromial and subdeltoid bursa in keeping with bursitis. Synovitis was noted at the rotator cuff interval possibly indicating adhesive capsulitis and frozen shoulder.

On 19 February 2020 the claimant consulted Dr Abraszko. The claimant described ongoing pain in her cervical spine, lumbar spine and right shoulder. There was associated heaviness in her right upper limb.
On 4 March 2020 the claimant attended Dr Jian Chyi Chan. She reported ongoing weakness and altered sensation in her right upper limb. She could not participate in heavy lifting or overhead tasks. She was noted to be attending hydrotherapy and physiotherapy. Dr Chyi Chan diagnosed the claimant as suffering right subacromial bursitis and right adhesive capsulitis.
The claimant consulted orthopaedic surgeon, Dr Chandra Dave, on 20 April 2020, for management of her right shoulder symptoms. She was referred for further imaging.
On 1 June 2020 the claimant attended on rehabilitation consultant, Rachel Feeney. The claimant described persistent neck, right shoulder and cervical spine pain. She could not complete self-care, domestic tasks or stand for long periods due to pain and discomfort. She felt anxious, withdrawn and had negative ruminations.
On 26 June 2020 the claimant attended on rehabilitation consultant, Rachel Feeney. The claimant underwent further steroid injections in her right shoulder on 30 June 2020.
On 3 July 2020 the claimant consulted Dr Tosson. The claimant had poor functional use of her right shoulder due to persistent pain, stiffness and loss of movement. She had difficulties with domestic tasks, functional movements and self-care. She was noted to be taking analgesic medication and attending physiotherapy and hydrotherapy with limited benefit.
Dr Tosson expressed the view that the claimant was unfit for work for the period between
29 June 2020 and 29 October 2020. She could not return to her pre-injury role as a machine operator as she had significant pain, weakness and discomfort in her dominant arm and lumbar spine.
On 27 July 2020 the claimant consulted Dr Dave. She complained of discolouration of her hands and features of complex regional pain syndrome. She was recommended to continue with physiotherapy.
On 29 July 2020 the claimant consulted Dr Dave. The doctor opined that the claimant had irritation of her right shoulder and possible complex regional pain syndrome.
On 12 August 2020 the claimant attended Dr Abraszko. She reported experiencing cervical and right shoulder pain, weakness and loss of movement that had persisted since the motor vehicle accident. The doctor was of the opinion that the claimant had developed complex regional pain syndrome.
On 14 October 2020 the claimant consulted Dr Dave. The doctor noted she was experiencing ongoing cervical-brachial irritation without improvement from the shoulder injections.
On 19 October 2020 the claimant consulted pain specialist, Dr Tim Ho. The doctor opined she had chronic right neck and shoulder pain secondary to central sensitisation. The claimant was noted to be withdrawn from her domestic duties, driving, social and recreational activities. The doctor recommended a pain management program to treat her injuries including nerve blocks to her right shoulder and neck.
In February 2021 the claimant attended on pain specialist Jane Bradshaw. Ms Bradshaw noted her to be suffering from chronic right neck and shoulder pain. The claimant was also diagnosed as having complex regional pain syndrome in her right upper limb, as well as maladaptive coping, reduced self-efficacy and adjustment disorder. She reported suffering from pain in her neck, right arm and lower back. Her sleep was interrupted, and she woke often from her pain.
On 1 April 2021 the claimant was admitted to Sydney Surgical Centre under pain specialist Dr Tim Ho. She underwent a right stellate ganglion block and perineural block.
On 17 May 2021 the claimant returned to Sydney Surgical Centre for a further stellate ganglion block and perineural block performed by Dr Ho.
On 9 June 2021 the claimant consulted Dr Ho. She had received some relief in her symptoms following the stellate ganglion block and perineural block. She was advised to reduce her dose of Mersyndol Forte and to trial Naltrexone.
On 12 July 2021 the claimant again received a right stellate ganglion block to treat her neuropathic pain.
On 28 July 2021 the claimant attended Dr Ho. He reported she was experiencing some benefit from her injections in relation to her right upper limb pain. She reported ongoing and persisting pain in the right side of her neck. Dr Ho recommended nerve blocks to the right C4/5 and C5/6 discs.
On 2 September 2021 the claimant was admitted to Hurstville Private Hospital to receive the nerve blocks.
On 29 September 2021 the claimant consulted pain specialist Dr Tim Ho. The doctor diagnosed the claimant with chronic nociplastic right neck and shoulder pain secondary to central sensitisation post anterior cervical discectomy and fusion at C5/6, possible early complex regional pain syndrome right upper extremity, component of right cervical facetogenic pain, worst C5/6, component of myofascial pain, component of right rotator cuff tendinopathy, maladaptive coping with catastrophisation, reduced self efficacy and adjustment disorder and motor vehicle accident 2018 – with cervical discopathy and soft tissue injury. Dr Ho noted that the claimant was going to undergo facet join pulsed radiofrequency treatment for her right cervical facet joints. He noted that there was a goal of reducing her pain by 50%.
On 1 November 2021 received injections to her C4-5 and C5-6 facet joints in an attempt to relieve her cervicogenic headaches.
On 30 August 2022 the claimant consulted a psychologist, Ms Hannah Bowman. She was diagnosed with an adjustment disorder with mixed anxious and depressed mood. Her symptoms included chronic pain, anger, irritability, poor sleep and short-term memory, excessive worry, hypervigilance, isolation and emotional dysregulation.
In May 2023 the claimant was recommended by her treating practitioners to utilise cannabidiol (CBD) oil to manage her daily pain and reduce her reliance on analgesia.
Over this period the claimant remained under the care of her GP, Dr Tosson. Dr Tosson had certified her unfit for work over this period.

Medico-legal reports

Associate Professor Miniter provided a report dated 15 October 2020. Associate Professor Miniter recorded a histoy of the accident generally consistent with prior accounts. Associate Professor Miniter recorded that she developed pain in the neck and in the upper aspect of the right shoulder. Just when it was when she began to develop right arm pain is not clear.
Associate Professor Miniter reported that the claimant continued to work as a machine operator. Associate Professor Miniter made reference to notes providing she was “… completing full-time pre-injury duties without restriction. This is despite her ongoing neck pain ..”Associate Professor Miniter reported “Even though she was working up until that time, she has not returned to work since and has no plans to do so”.
Associate Professor Miniter concluded that he was not convinced that there is evidence that the cervical spine was injured in the course of her motor vehicle accident. There was an implausible explanation for her right arm symptoms and whilst two neurosurgeons feel that she has had symptoms relating to C6 nerve root compression, this has not been confirmed on the MRI scan. In reaching that conclusion Associate Professor Miniter confirmed his understanding that she was completing full-time pre-injury duties without restriction up to the surgery.
Associate Professor Miniter recorded his findings on examination and reviewed the various investigations.
In relation to the right shoulder, Associate Professor Miniter did not regard adhesive capsulitis as related to the cervical spine surgery nor to the original injury. Associate Professor Miniter noted the definite presence of pre-existing pathology in relation to an inflammatory condition, namely ulcerative colitis, is of great significance in this case. I feel that it more than adequately explains the development of adhesive capsulitis.
In relation to the claimant’s prognosis, Associate Professor Miniter concluded that the prognosis was poor. She presents with significant motivational issues and at no stage has the cause of her right arm numbness, heaviness and so on been determined. It would have been preferable if this matter had been investigated more thoroughly before surgical treatment.
In relation to the claimant’s earning capacity, Associate Professor Miniter noted the precise history of her employment had been reported. Even though she did continue to work after the accident he could see no reason for her not to return to work at this stage as the explanation for her symptom complex other than the right shoulder has not been determined.
Associate Professor Miniter concluded that her only restriction from pre-injury employment, as far relates to the right shoulder which, in my opinion, is unrelated to the motor vehicle accident. Otherwise, she is fit to work.
Dr Eugene Gehr provided a report dated 23 October 2020. The doctor reported on the history of her symptoms and treatment. Dr Gehr diagnosed the claimant with cervical spine discogenic pain with right radiculopathy despite C5/C6 anterior cervical discectomy and fusion, right shoulder pain with rotator cuff muscle wasting and decreased range of motion and imaging supporting rotator cuff pathology and lumbar spine pain but no significant clinical finding.
In relation to the claimant’s prognosis, Dr Gehr noted that it had been over two years since the accident and despite treatment and an operation, she remains significantly symptomatic, so prognosis is poor.
In relation to the claimant’s earning capacity, Dr Gehr noted her pre-injury job as a machine operator involved driving and lifting boxes up to 25kg. Because of her ongoing problems with the neck and her right shoulder, she is not able to perform those duties. Dr Gehr noted she can only stand for less than 30 minutes at a time, sit for less than 30 minutes at a time with lifting restrictions of 5kg for the right arm. If she was to work, she would need frequent breaks throughout the work day of every 30 minutes. She would have limited kneeling, squatting, or use of ladders. She will have to retire prematurely as a result of subject accident.
Dr Gehr provided a further report dated 9 December 2021. Dr Gehr diagnosed the claimant with cervical spine discogenic pain with right radiculopathy despite C5-C6 anterior cervical discectomy, fusion, series of steroid injections by her pain specialist recently. Her symptoms and signs remain. Right shoulder pain with rotator cuff muscle wasting, decreased range of motion, imaging supports rotator cuff pathology, with recent steroid injection, symptoms and signs remain the same as my previous report. Lumbar spine pain remains, but no significant clinical findings.
In relation to the claimant’s prognosis, Dr Gehr noted it had been over three years since subject accident and despite treatment, surgery, and recent steroid injection, she remains significantly symptomatic, so the prognosis is poor.
In relation to the claimant’s earning capacity, Dr Gehr noted she had not been able to get back to her pre-injury occupation. He commented that given her age, previous work experience, it is not realistic to consider other occupations. She can only stand for limited capacities. She can only sit for limited times. If she was working, she would have to take regular breaks during the day. She would have limited lifting of 5kg or less. Limited kneeling, squatting or use of ladders. Limited lifting right arm 5kg, no right-hand above shoulder activities, no pushing, pulling of right arm. He concluded she has effectively retired now. This is related to the injuries she sustained from subject accident.
In providing his opinion as to whether the claimant will require special travel arrangements, Dr Gehr noted special travel arrangements would require use of wheelchair on getting onto the plane and then also assistance of the wheelchair and getting off the plane. She also needed to be accompanied by an assistant. Such travel assistance with wheelchair and assistant would be for the foreseeable future either on domestic or international holidays.
Dr Robert Gertler dated 4 October 2023 reported the claimant describes a disturbed sleep pattern. She experiences pain in the neck, radiating down the right arm and also in the back. Her sleep as well, can be associated with nightmares related to the accident. She describes the right arm becoming blue in colour, cold and numb. The pain fluctuates in intensity and there are times when she does not feel pain, however it will occur every day. Appetite is reasonable but she has gained more than 10kg in weight. She describes difficulty with concentration and her memory is “very bad”. She finds it difficult to undertake complex tasks.
Dr Gertler concluded that the claimant was suffering from a major depressive disorder, characterised by sleep disturbance with occasional nightmares related to the accident in which she was involved in September 2018, disturbance of appetite with marked weight gain. Dr Gertler noted subjective difficulties with concentration and memory, marked social withdrawal, and feelings of guilt concerning the effect which her condition has on her ability to function on a personal, social and occupational level.
In relation to the claimant’s prognosis, Dr Gertler considered the prognosis was guarded. It was almost five years since the accident which led to the development of the major depressive disorder. The condition of the disorder appears not to be improving with the passage of time, and as such, the prognosis is guarded.
In relation to the claimant’s earning capacity, Dr Gertler commented that from a psychiatric point of view, she would not be able to secure and maintain employment in the open labour market.
Dr Haig provided a report dated 30 November 2023. Dr Haig recorded a history of the accident generally consistent with prior accounts. Dr Haig noted that following the accident she was aware of pain in the right side of the neck, in the right shoulder and the low back.
In relation to the employment history Dr Haig noted that she had been working as a machine operator for 15 or 16 years. She was off work following the accident for one week and then returned to work on light duties. That was the case until April 2019 and then, because of upper extremity symptoms, she discontinued work. She has not returned to work since then.
Dr Haig questioned the claimant about any neck complaints in the past and reported her response as “not really”. Dr Haig concluded that was clearly not the case for in the documentation.
Dr Haig recorded his findings on examination and reviewed the various investigations. Under the heading “Opinion” Dr Haig noted that he described the nature of the injury under the heading “History of Injury”, that included the claimant’s account of injury to the right shoulder. Dr Haig noted that when she attended her GP that day, the GP’s entry was “sore cervical spines….sore lumbar spines….bruised left side forehead…bruised knee joints”. There was no mention of any right shoulder complaint in the GP notes until 1 November 2018, that is, about five weeks later.
Dr Haig was of the view that he did not relate her current right shoulder complaints to the accident. Dr Haig considered the apparent loss of range of motion out of all proportion to the findings on the most recent MRI. Dr Haig was concluded that he did not believe her right shoulder complaints are related to the accident.
Dr Haig noted that in relation to the cervical spine there was a long history of cervical spine complaints. Dr Haig commented that it was not clear when she developed right upper extremity symptoms. She did undergo an anterior cervical decompression and fusion though it appears without benefit, and she continues with symptoms. Dr Haig concluded that she may well have aggravated her cervical spine condition in the injury.
Dr Haig noted that, she did not volunteer any low back complaint, and nor, is there any mention of low back complaint apart from on the day of attendance to her GP in the GP’s notes.
In relation to the claimant’s earning capacity, when asked about the claimant’s capacity for employment as a result of any accident-related injuries Dr Haig concluded that she may not be capable of her pre-injury employment but I believe she is capable of employment in general on the open labour market.
Dr Haig noted the pre-existing injuries and conceded that she was however working normal duties at that time.
Dr Haig noted “I do not believe there are any limitations in terms of her travelling”.
In relation to the claimant’s prognosis, Dr Haig noted the prognosis is guarded in terms of her neck complaint.
Dr Haig commented on the report from Dr Gher, he noted that the view of Dr Gher was that the claimant had sustained an injury to her cervical spine, right shoulder and lumbar spine. Dr Haig noted that he had provided his reasoning as to why he does not believe she sustained injury to the right shoulder, nor to the lumbar spine.
Dr Haig agreed with the classification from AMA4, Table 73 that she falls into Category IV which carries a 25% whole person impairment.
In a separate report Dr Haig accepted a 25% whole person impairment. Dr Haig considered there was considerable doubt about when she developed right upper extremity pain for which, in itself, was the indication for the surgery. It would be a deduction of one-tenth for pre-existing cervical spine condition as shown on CT and MRI scanning performed shortly after the accident and thus the WPI would be 25% minus 2.5% equals 22.5% which rounds up to 23%.
In a separate report Dr Haig concluded that he was of the view that the injury was a minor injury. Dr Haig did not believe at the time of the accident she sustained an injury to nerves. Dr Haig considered the documentation suggested that her right upper extremity symptoms which were likely radicular in origin came on some time after the injury.
Mr Glen Dwyer provided a report dated 19 January 2024 and summarised her present and future vocational capacity following her injuries. Mr Dwyer considered that due to the effects of her injuries, she no longer has the functional capacity to perform the full and unrestricted duties of her pre-injury employment as a pharmaceutical machine operator.
Mr Dwyer considered that due to the effects of her injuries she no longer has the functional capacity to perform the full and unrestricted duties of any occupation for which she is suited by way of her skills, qualifications and experience. Mr Dwyer was of the view that her transferrable skills, when combined with the effects of her injuries, do not equip her with the necessary pre-requisites to perform any unrestricted recognised occupation in the open labour market and she would require a significant change in her injury-related circumstances for this situation to change.
Mr Dwyer considered that due to her injuries, I consider her prospects for securing and sustaining unrestricted employment in a recognised occupation in the open labour market to be poor to negligible.
Mr Dwyer concluded that due to the severity of her functional incapacities, her best opportunity to maintain participation in employment in the future is in a position of supported employment. In undertaking intermittent positions of supported employment, she would be required only to work within her functional limitations for a supportive and accommodating employer in an environment where it is acceptable for her to perform some, but not all of the set tasks of a given job, and where she can take unscheduled rest or postural breaks as needed. Whilst supported employment positions can be beneficial to an injured worker in supporting the rehabilitation process, participating in a position of supported employment is not indicative of a capacity to earn an income in unrestricted employment in the open labour market.

Mr Dwyer considered that the provision of occupational rehabilitation or training in the future is unlikely to improve Ms Azer’s prospects for securing suitable employment in the open labour market. Her age (50 years of age) is likely to reduce her chances of securing new employment over and above her injury-related barriers to securing employment. Given the medical evidence, she has a poor prognosis for any further significant recovery, her negligible work capacity for employment in the open labour market will likely persist for the foreseeable future.
The insurer relied upon a Vocational Capacity Centre report dated 8 February 2024. The report provided:
“Dr Gertler (psychiatrist) dated 4 October diagnosed her with major depressive disorder. However, this assessment was conducted several months ago on 28 September 2023, and her presentation during the present assessment was not suggestive of clinically significant psychological difficulties. She seemed at ease throughout the process, was friendly and compliant, plus demonstrated a good sense of humour on a number of occasions. On the basis of this, it would appear that the emotional difficulties that she has struggled with in the past may be partially in remission.
Ms Azer was able to maintain a free-flowing conversation in fluent English with limited word finding difficulties. On the basis of Ms Azer’s presentation it would appear that her English-language proficiency would be easily sufficient for most customer-facing roles. During standardised testing, her reading comprehension skills were clearly demonstrated during a numeracy test which was presented in narrative English. She demonstrated above average numeracy skills within the same test and should have no difficulties with the mathematical demands of cash handling or elementary sales positions.”
The conclusion reached by Gillian Stewart was that:
“Ms Azer is considered suited to sedentary and selected light work with tasks performed at optimal height and provisions made for alterations in work posture. She is therefore considered physically suited to resuming her pre-injury employment or other work with similar job demands.
In a physically suitable occupation, she is capable of working full-time, but may require a graded return to work over a period of three to six months due to the prolonged period she has been out of the workforce.”

The claimant’s evidence

The claimant adopted the statements made on 9 August 2023 and 14 February 2024.
Contrary to what was contained in her statement, the claimant gave evidence to the effect that she had undertaken some work following the accident. This related to a period following the accident and up to April 2019.
The insurer questioned the claimant in relation to the statement, specifically paragraph 47, to the effect that she had not worked following the accident.
At times she maintained that she had misunderstood and at times she maintained that what she had meant was that she hadn't worked following the operation.
The insurer questioned the claimant in relation to a certificate of capacity completed on 11 October 2018.
That certificate included a statement to the effect that the claimant had not worked since the accident. The evidence was to the effect that following the accident the claimant had been off work for a period of time but at some point, in or about October 2018 she had returned to work.
There was some uncertainty about the extent to which the claimant had returned to work. It was clear that there was a period of time following the accident when she was off work but that at some point in about October she had returned to work.
The claimant's evidence was to the effect that she had returned to work on what she described as light duties and that she had returned to work not undertaking the work she had undertaken prior to the accident.
The claimant's evidence was to the effect that she had not returned to full-time work but had been working four days a week or less in that period.
She had continued to work up to about April 2019 when she ceased work. She had not worked since.
Counsel for the insurer questioned the claimant in relation to the reports of injuries prior to the motor vehicle accident.
The insurer made reference to a complaint in relation to her back in 2011.
The insurer made reference to medical treatment in relation to the neck in 2012, 2014 and 2015.
The insurer made reference to treatment in 2017.
The insurer made reference to consultations with her GP in May, June, July, August and September 2017 with complaints relating to the back, leg, left shoulder, both shoulders and neck.
The insurer made reference to consultations with her GP in January, February, June, July and August 2018 with complaints relating to the back, neck and right shoulder.
The claimant denied having any recollection of such consultations or complaints except to the extent that she accepted that she did have some injections in her shoulders.
In re-examination the claimant asserted that she did not consider that any of these various consultations represented a problem in relation to those areas. She maintained that at no point in time had any of those injuries prevented her from undertaking work. She did not consider that there was any problem in relation to this because she had not required any real treatment or any time off work.
The insurer had also made reference to the statement to Dr Gerber that she had no prior problems. The insurer also made reference to the report from Dr Haig that she “is not really” having any problems.
Despite this there was evidence from Dr Dave that he had treated her in relation to one of the shoulders and an ultrasound and physiotherapy had been recommended.

The claimant’s submissions

The claimant submits that an award in the sum of $450,000 is appropriate in the circumstances.
The claimant was employed LIPA Pharmaceuticals until 6 December 2017 when she was offered a redundancy package in July 2018 when she accepted a position at Sphere Healthcare more in line with her experience and skills.
The claimant’s role was similar to her role at LIPA Pharmaceuticals and required her to frequently lift and carry heavy items, set up machinery and equipment and load materials. Consequently, she maintained a requisite level of physical fitness, strength and stamina.
The claimant was required to have strong mathematical and analytical skills in order to understand complex instructions and schematics. She needed to have a great attention-to-detail and problem-solving skills.
The claimant was employed on a casual basis. She regularly worked 38 hours each week without any restrictions.
The claimant earned the sum of $807.20 net per week.
The claimant regularly felt fatigued due to disturbed sleep and intrusive thoughts.
She regularly took days off work to rest and receive treatment as is reflected in the medical certificates issued by her GP, Dr George Tosson.
The claimant continued to work up on a reduced basis before ceasing work in or around
April 2019.
The claimant recognises it is difficult to exactly quantity her loss during this period. The claimant submits the sum of $25,000 is reasonable to compensate her for her loss during this period April 2019 the claimant was certified unfit for work. She has remained certified unfit for work since this time.
The claimant’s reduced capacity has had a direct effect on her employability and suitability for work. She has been unable to engage in job seeking and retraining.
The claimant refers to and relies on certificates issued by Dr Tosson. The claimant submits that these medical reports obtained by her through her treating doctor and relied upon clearly demonstrate her ongoing incapacity for work as caused by the accident.
The claimant submits that but for the accident she would have continued to work as a machine operator in her pre-accident capacity.
The claimant struggles with the idea that she is no longer as capable as she previously was. She has low confidence and self-esteem in her ability as a prospective employee.
The claimant makes a claim particularised at $807.20 net per week x 252.6 weeks = $203,898.72.
The claimant also claims the loss of employer funded superannuation contributions on the above amount at a rate of 11%.
The claimant acknowledges that the CTP insurer is entitled to a refund for wage payments made to date. As at 3 October 2023, this was in the sum of $165,905.46.
The claimant also makes a claim for the income tax paid on statutory benefits pursuant to Fox v Wood.
The claimant earned the sum of $807.20 net per week. She worked 38 hours each week. The claimant has been unable to return to work in any capacity since April 2019 as a result of her ongoing physical and psychological injuries, restrictions and disabilities. The claimant was made redundant by virtue of her inability to return to her pre-injury role.
The claimant has undergone a variety of treatment with limited success. It is very likely that her pain and restrictions will persist for the remainder of her life, with her condition only deteriorating as she ages.
The claimant remains unable to perform the physical aspects of her job such as carrying and lifting heavy items, operating heavy machinery and maintaining machines. She no longer possesses the stamina, physical capacity or strength to work in physically arduous and laborious roles. The claimant submits that she is incapable of returning to work in any occupation in which she has skills and experience.

The insurer’s submissions

The submissions of 25 September 2023 note the insurer conceded that the claimant had sustained injury to the neck and psychiatric injury. In relation to the right shoulder their position was that it was accepted that the claimant had suffered an exacerbation of an injury but that any such exacerbation had after some time resolved.
The insurer referred to the certificate of capacity from Dr Tosson of 11 October 2018 and the doctor’s opinion that she was fit for work for eight hours a day, five days a week with some lifting restrictions. The report also notes that she apparently told the doctor that she had not worked, presumably since the time of the accident.
The insurer contended that the payslips from her employer show that she was working the same number of hours, 30.4, that she worked in the week prior to the accident. The insurer also notes that the claimant told Dr Miniter in his report of 15 October 2020 that she continued to work as a machine operator.
The Ark Clinical notes record, again as noted by Dr Miniter, that the claimant was “completing full time pre-injury duties without restriction”. This is contrary to evidence given by the claimant in her statements that she either did not work following the accident or only worked in light duties.
The insurer contended that the operation was unsuccessful in alleviating her pain and restriction, there is no suggestion that it made it worse. In those circumstances the only reasonable conclusion that can be drawn is that she is capable of working as she was prior to the operation, that is to say full time pre-injury duties without restriction.
The statement of the claimant dated 9 August 2023 refers, at [14], to her having “some very mild discomfort in my right shoulder and neck pain in June and September 2017”.
The insurer contended that the notes from Dr Tosson tell a larger story than that. Between 2 December 2011 and 24 August 2018, Dr Tosson’s notes record no less than 13 occasions on which she complained of neck and back pain and stiffness to the doctor. Right shoulder pain was recorded on three occasions in 2017, consistent with the claimant’s statement. Left shoulder pain was also recorded by Dr Tosson with the claimant having a steroid injection in her left shoulder as a result. In the two months prior to the subject accident the claimant complained of cervicogenic headaches and, on two occasions, back pain. None of that is mentioned in her statement.
In the report of Dr Haig, orthopaedic surgeon, dated 30 November 2023 of interest, at the top of page 4 of the primary report, the claimant told Dr Haig that at the time of the accident, she was aware of pain in the right side of her neck. This contrasts with the report of Dr Wallace of 16 November 2018 where, in the third paragraph, he records that “she noted no pain at the time”.
The insurer contended that Dr Haig was told that when she returned to work the claimant did so on light duties. As noted, that is inconsistent with her treating medical practitioners. Dr Haig questioned the claimant about pre-accident neck, complaints to which she replied “not really”.
The insurer contended that Dr Miniter noted that Dr Abraszko had recommended the cervical discectomy and fusion although it seems that he was of the view that this was not to be undertaken until and unless there was confirmation of nerve root involvement by injection therapy. However, he noted that before she underwent the operation, she did not have such an injection regime and that therefore the cause of her pain was not confirmed.
Professor Miniter, whilst noting that she had evidence of a resolving adhesive capsulitis, was not able to identify any clear features of ongoing radiculopathy. Professor Miniter was not convinced that there was evidence that the claimant’s neck was injured in the course of the accident. The professor noted that the impression of the neurosurgeons was that there was a C6 nerve root compression. However, this was not confirmed by an MRI scan.
He placed emphasis upon the fact that she continued to work prior to the surgery. He thought that her prognosis was poor but noted that this appeared to be linked to a lack of motivation.
The insurer contended that there is a significant difference of medical opinion as to whether or not the cervical spine symptoms that the claimant has, for which she underwent surgery, arose out of the motor vehicle accident. Professor Miniter, an expert particularly qualified in this area, has clearly reviewed all of the scans. His opinion, doubted that the cervical injury was related to the accident.
The insurer noted there is suggestion in the medical evidence that she has now gone on to develop a complex regional pain syndrome (CRPS). This syndrome is entirely subjective. It is not possible to see on a scan any objective evidence that could be confirmatory of a CRPS.
The insurer noted that in the week prior to the accident the payslips show that her hours of work reduced from 38 down to 30.4. This reduced her net income to $678 per week. This payslip, which pre-dates the accident is mirrored by payslips she subsequently received in the next few weeks. That is to say, it appears that her work hours had reduced down to 30.4. Thereafter they fluctuated between 30.4 down to as low as 7.6 hours per week in March 2019. After that date they increased to 22.8 hours per week.
The insurer maintained the credit of the claimant is critical to the assessment.

Consideration

Pre-accident

The claimant’s submissions include, at paragraph 6 that “The claimant enjoyed good general health”.
Reference is then made to some discomfort in her right shoulder and pain in her neck in June and September 2017, two subsequent right shoulder injections and that her symptoms resolved, and she returned to full duties.
The claimant’s submissions provide an overly simplistic and favourable summary of the claimant’s health prior to the accident.
The insurer raised a number of issues in relation to the claimant.
The insurer raised issues about the extent of the claimant’s pre-accident injuries and the extent to which the claimant did not fully disclose these to the various medical practitioners that assessed her.
In addition, when questioned about these she maintained that she had limited memory of much of the treatment and was reluctant to accept the extent and significance of it.
The insurer noted a significant difference of medical opinion as to whether or not the cervical spine symptoms that the claimant has, for which she underwent surgery, arose out of the motor vehicle accident.
The insurer noted the suggestion in the medical evidence that she has now gone on to develop a CRPS. This syndrome is entirely subjective. It is not possible to see on a scan any objective evidence that could be confirmatory of a CRPS.
The insurer noted that the credit of the claimant was of significance.
The claimant was questioned about the pre-accident medical history and denied any memory of numerous medical consultations, she was reluctant to accept the pre-accident medical history contained in the records.
The claimant was questioned about the statements that she had not worked following the accident and was reluctant to accept they were incorrect and had difficulty explaining why the statements had been made.
The claimant was questioned about the nature of her return to work and there remained some uncertainty about the precise details.
I accept that there was some difficulty with the evidence of the claimant.
I accept that the history of complaints pre-accident were as set out in the medical records.
The insurer questioned the claimant in relation to medical consultations in 2011, 2012, 2014 and 2015, May, June, July, August and September 2017 and in January, February, June, July and August 2018.
This history of these complaints were put directly to the claimant when questioned by counsel for the insurer.
The claimant stated that she did not recall a significant amount of the history of complaints pre-accident.
The claimant did not deny them, she maintained that she did not remember them.
This is difficult to accept. In my view either the claimant had an exceptionally poor memory or she was not prepared to accept the level of medical consultation and treatment prior to the accident.
That evidence was of complaints of pain in relation to her back, neck, left and right shoulder at various times, over the period from 2011 to August 2018.
The evidence was of these complaints up to about one month before the accident.
Despite all of the evidence of medical treatment and complaints of pain, the evidence from the claimant was that up to the date of injury the claimant was working her ordinary hours doing her ordinary duties. I accept that was the position.

Post-accident

The medical opinion in relation to almost all aspects of the claimant’s injuries, symptoms, treatment, prognosis and capacity differed. There was little, if any, significant consensus.
At paragraph 39 of her statement the claimant maintained she had sustained injury to her cervical spine, right shoulder and back. At paragraph 39 of her statement the claimant makes reference to a consultation on 26 September 2018 and to pain in the right shoulder. There was a lack of clarity in relation to the precise onset and extent of right shoulder symptoms.
Associate Professor Miniter recorded that she developed pain in the neck and in the upper aspect of the right shoulder but that when she began to develop right arm pain was not clear.
The implication was that the onset of these symptoms in the neck and in the upper aspect of the right shoulder occurred at or about the time of the accident.
This appeared to be a reasonably accurate account of onset of the right shoulder issues.
Following the accident there was a brief time off work before the claimant then returned to work on light duties.
There is some uncertainty about precisely what time she had off and what hours she worked.
The plaintiff was questioned about statements that she had not worked after the accident. Her responses were difficult to accept.
The claimant was reluctant to accept these statements were untrue and described them as a misunderstanding.
It is difficult to accept there was any misunderstanding.
Objectively the evidence was that for 15 or 16 years she undertook similar work, following the accident she was aware of pain in the right side of the neck, in the right shoulder and the low back, she was off work for one week and then returned to work on light duties, in April 2019 she discontinued work and has not returned to work since then.

Associate Professor Miniter accepted that the claimant was restricted from pre-injury employment, as a result of the right shoulder, but this was unrelated to the motor vehicle accident.
It is apparent from the report from Associate Professor Miniter that the right shoulder was worse following the accident and that it was impacting on the capacity of the claimant.
Associate Professor Miniter noted an inflammatory condition that predisposes people to the development of an inflammatory condition at the shoulder.
In reaching that conclusion Associate Professor Miniter confirmed his understanding that she was completing full-time pre-injury duties without restriction up to the surgery. The extent to which the view of Associate Professor Miniter, in relation to the right shoulder, was based upon that post accident work history was unclear but from the structure of the report it appeared to be of considerable importance in terms of this conclusion.
It would seem that the opinion of Associate Professor Miniter was that based on the history he obtained this impaired capacity resulting from the right shoulder injury could be the result of an inflammatory condition.
It would seem that on that basis the opinion of Associate Professor Miniter was that the right shoulder injury was unrelated to the motor vehicle accident.
In my view there is a significant difference between the potential impact of an inflammatory condition and a finding that the right shoulder injury was unrelated to the motor vehicle accident. How and why Associate Professor Miniter reaches the conclusion that the right shoulder injury was unrelated to the motor vehicle accident is not clear.
I accept that was his medical opinion, but in my view the reasoning behind it was not clear.
Associate Professor Miniter was “not convinced” that there was evidence that the claimant’s neck was injured in the course of the accident. Professor Miniter did not say that he was convinced that she did not sustain a neck injury as a result of the motor accident.
Dr Haig noted that following the accident she was aware of pain in the right side of the neck, in the right shoulder and the low back.
Dr Haig noted that:
(a)    she had been working as a machine operator for 15 or 16 years;
(b)    following the accident she was aware of pain in the right side of the neck, in the right shoulder and the low back;
(c)    following the accident she was off work for one week and then returned to work on light duties;
(d)    there was no mention of any right shoulder complaint in the GP notes until
1 November 2018, that is, about five weeks later;
(e)    in April 2019 because of upper extremity symptoms, she discontinued work, and
(f)    she has not returned to work since then.
Under the heading “Opinion” Dr Haig noted that he described the nature of the injury under the heading “History of Injury”, that included the claimant’s account of injury to the right shoulder.
Dr Haig noted that when she attended her GP that day, the GP’s entry was “sore cervical spines….sore lumbar spines….bruised left side forehead…bruised knee joints”. There was no mention of any right shoulder complaint in the GP notes until 1 November 2018, that is, about five weeks later.
Dr Haig concluded:
“It is so that there had been right shoulder complaints earlier in 2017 and June 2018 when the GP’s entry read ‘Right shoulder pain…..limited ROM’. It may well be that she was developing a frozen shoulder and that was suggested in one of the radiology reports. I do not relate her current right shoulder complaints to the accident.”
Dr Haig noted that he had provided his reasoning as to why he did not believe she sustained injury to the right shoulder.
Dr Haig considered that the claimant may have been developing a frozen shoulder and that this was suggested in one of the radiology reports.
Whilst Dr Haig considered that the apparent loss of range of motion was out of all proportion to the findings on the most recent MRI, he did not express the view that there was or should be no loss of range of motion.
It is not clear what conclusions Dr Haig reached, it is not clear whether he accepted that the claimant had right shoulder symptoms shortly after the accident or whether he did not consider that she had such symptoms until they were reported to the GP about five weeks later.
It was not apparent the extent to which this onset of symptoms was of relevance to Dr Haig in reaching the conclusion that the right shoulder issues were not related to the accident.
As noted earlier, Associate Professor Miniter appeared to accept that the right shoulder was worse following the accident, equally so, Dr Haig also appears to accept that right shoulder was worse following the accident.
It would seem that the opinion of Dr Haig was that based on the history he obtained this impaired capacity resulting from the right shoulder injury could be the result of the claimant, prior to the accident, developing a frozen shoulder.
It would seem that on that basis the opinion of Dr Haig was that the right shoulder injury was unrelated to the motor vehicle accident.
In my view there is a significant difference between the potential developing of a frozen shoulder and a finding that the right shoulder injury was unrelated to the motor vehicle accident. How and why Dr Haig reaches the conclusion that the right shoulder injury was unrelated to the motor vehicle accident is not clear.
I accept that was his medical opinion, but in my view the reasoning behind it was not clear.
In my view it was not apparent from the report from Dr Haig, why he was able to exclude the possibility pf injury to the right shoulder as a result of the accident.
The insurer challenged the opinion of Dr Gehr upon the basis that Dr Gehr did not have a complete history of her pre-accident injuries.
It was not clear why the existence of the pre-accident symptoms was wholly determinative of the issue of whether the accident caused injury to the right shoulder.
The difficulty with that criticism was that Dr Haig reported “She had been working as a machine operator for fifteen or sixteen years. As stated, she was off work following the accident for one week and then returned to work on light duties.” Dr Haig specifically noted that he questioned her about any neck complaints in the past and she replied, “not really” and that he questioned her about her right shoulder, and she referred to an injection in the past.
Despite this, Dr Haig was able to clearly explain why he did not accept injury to the right shoulder.
Dr Haig noted: “She may well have aggravated her cervical spine condition in the injury. She had had cervical spine complaints dating back over many years.”
In assessing the impact of the pre-existing symptoms Dr Haig noted:
“As stated, on direct questioning about her cervical spine past history she replied, ‘’not really’. It is clear from the documentation that is not the case. There have been no subsequent conditions. She had been working until the time of the accident.”
Dr Haig was well aware of the history in relation to the neck, and despite that knowledge he was not prepared to exclude injury to the right neck to the accident. Dr Haig also was aware of the short period off work and a return to work on light duties.
In my view it was not apparent from the report from Dr Haig, why he accepted an aggravation in relation to the neck, in the face of pre-accident symptoms but did not accept aggravation of the right shoulder in the face of pre-accident symptoms.
I accept that was his medical opinion, but the reasoning behind it was, in my view, not clear.
Dr Gehr recorded a history of the onset of right shoulder symptoms reasonably consistent with the evidence of the claimant and as recorded by Associate Professor Miniter.
Dr Gehr diagnosed the claimant with right shoulder pain with rotator cuff muscle wasting and decreased range of motion and imaging supporting rotator cuff pathology.
Associate Professor Miniter appeared to accept rotator cuff muscle wasting at the time of his examination. He clearly did not agree with Dr Gehr on what the imaging revealed.
The view of Associate Professor Miniter was that the claimant had an inflammatory condition that predisposed her to the development of an inflammatory condition at the shoulder.
For the reasons I have set out above, I did not accept that conclusion from Associate Professor Miniter
Dr Haig was of the view that the impaired capacity resulting from the right shoulder injury could be the result of the claimant, prior to the accident, developing a frozen shoulder.
For the reasons I have set out above, I did not accept that conclusion from Dr Haig.
As noted earlier, the medical opinion in relation to most aspects of the claimant’s injuries differed.
Whilst Dr Gehr did not have details of the pre-accident history, he had an accurate history of the accident and a substantial volume of material in relation to the accident and subsequent treatment.
Noting my comments in relation to the opinions of Associate Professor Miniter and Dr Haig, I prefer the opinion of Dr Gehr, to that of Associate Professor Miniter and Dr Haig.
I accept the opinion of Dr Gehr in relation to injuries sustained by the claimant as a result of the motor accident. I did not accept the opinion of Dr Gehr in relation to the other matters expressed in his reports. I will address the issues of the capacity in relation to economic loss.
I accept that as a result of the motor accident the claimant had sustained injury to the cervical spine specifically cervical spine discogenic pain with right radiculopathy and despite C5/C6 anterior cervical discectomy, fusion, series of steroid injections by her pain specialist recently, her symptoms and signs remain.
I accept that as a result of the injury, the claimant had sustained injury to the right shoulder, described as right shoulder pain with rotator cuff muscle wasting, decreased range of motion, imaging supports rotator cuff pathology, with recent steroid injection, symptoms.
I also accept that as a result of the injury the claimant had sustained an injury to the lumbar spine.
I accept the opinion of Dr Gertler in relation to injuries sustained by the claimant as a result of the motor accident. I accept that as a result of the injury the claimant was suffering from a major depressive disorder, characterised by sleep disturbance with occasional nightmares related to the accident in which she was involved in September 2018, disturbance of appetite with weight gain.
Whilst I accepted that the claimant sustained the injuries found by Dr Gehr, I did not accept the opinion of Dr Gehr in relation to the other matters expressed in his reports.
Equally so, I did not accept the opinions of Associate Professor Miniter and Dr Haig in relation to the other matters expressed in their reports.
I accept that the pre-accident complaints were as set out in the documentation and that the claimant downplayed them. Precisely how significant they were was harder to clearly ascertain.
In my view the consequences of the injuries sustained by the claimant fell somewhere between the views of Dr Gehr, Associate Professor Miniter and Dr Haig.
On the evidence available I could not be more precise.
In my view there was a significant degree of uncertainty about the consequences of the injuries sustained.

Non-economic loss

The findings in relation to the injuries sustained as a result of the accident are set out above.
Details of the accident and the subsequent treatment, together with medical legal opinions are set out above.
Details of the pre-accident medical history has been set out above together with the details of the questioning of the claimant about the pre-accident medical history.
The medico-legal opinions differed in relation to the significance of the pre-accident medical history.
The claimant was working before the accident, then had time off before returning to work on light duties. She then stopped work with significant complaints and restrictions. She has undergone extensive treatment surgery was recommended.
She underwent surgery performed by Dr Abraszko at the C5/6 level. Because of ongoing complaints Dr Abraszko referred her to Dr Tim Ho, a pain specialist. Her GP has referred her to Dr Adam Mira, another pain specialist.
In his report dated 9 December 2021 Dr Gehr noted she has had five different nerve blocks to her neck which did not really help. She has had a nerve block to the right shoulder but that did not really help much.
Dr Gehr noted pain in the dorsal aspect of the cervical spine, present all the time. She reported pain over the anterolateral aspect of the right shoulder radiating down to the dorsal aspect of the right hand. Pain in the lumbar spine, neck and the right shoulder. She still can only sit, stand, or walk for limited periods. Still reports stiffness of her cervical spine and right shoulder.
In February 2021 the claimant was also diagnosed as having CRPS in her right upper limb.
The claimant has continued to experience significant symptoms and restrictions and had undergone extensive treatment.
She has continued to experience significant symptoms more fully set out in her statement at paragraph 101, and from 119 to 127.
As noted above, I gave significant consideration to the injuries the claimant sustained as a result of the accident because of the extent of the divergence of opinion in relation to those issues.
As noted above, the medical opinion in relation to almost all aspects of the consequences of the injuries sustained by the claimant differed.
This history of the pre-accident complaints were put directly to the claimant. The claimant stated that she did not recall a significant amount of the history of complaints pre-accident. She did not deny them but maintained that she did not remember them.
This was difficult to accept.
Despite all of the evidence of medical treatment and complaints of pain, the evidence from the claimant was that up to the date of injury the claimant was working her ordinary hours doing her ordinary duties.
The plaintiff was questioned about statements that she had not worked after the accident. The claimant was reluctant to accept these statements were untrue and described them as a misunderstanding. It was difficult to accept there was any misunderstanding.
Her responses were difficult to accept.
Whilst I accepted that the claimant sustained the injuries found by Dr Gehr, I did not accept the opinion of Dr Gehr in relation to the other matters expressed in his reports.
Equally so, I did not accept the opinions of Associate Professor Miniter and Dr Haig in relation to the other matters expressed in their reports.
I accept that the pre-accident complaints were as set out in the documentation and that the claimant downplayed them. Precisely how significant they were was harder to clearly ascertain.
In my view the consequences of the injuries sustained by the claimant fell somewhere between the views of Dr Gehr, Associate Professor Miniter and Dr Haig.
Whilst I accepted the opinion of Dr Gehr in relation to the injuries sustained, I accept that he did not have an accurate history of the pre-accident symptoms, and I consider that the claimant downplayed these and that they were of real significance in assessing the consequences of the injuries sustained by the claimant.
On the evidence available I could not be more precise.
The claimant suggested non-economic loss in the sum of $450,000. I consider that to be at the higher end of what may have been allowed had I fully accepted the claimant’s case.
The insurer suggested non-economic loss in the sum of $220,000. I consider that to be what may have been allowed had I fully accepted the insurer’s case.
Taking all of these issues into account I assess non-economic loss in the sum of $300,000.

Economic loss

In Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1 where the Court by a majority of Deane, Dawson, Toohey, Gaudron and McHugh JJ stated the principle in the following terms:
“2. A plaintiff in an action in negligence is not entitled to recover damages for loss of earning capacity unless he or she establishes that two distinct, but related requirements are satisfied. The first ... is ... that the plaintiff’s earning capacity has in fact been diminished by reason of the negligence-caused injury. The second ... is (that) ‘the diminution of ... earning capacity is or may be productive of financial loss’ (referring to Graham v. Baker [1961] HCA 48).”
In IAG Ltd t/as NRMA Insurance v Damian Mares [2016] NSWSC 1792, Hall J said this with respect to the correct assessment of future economic loss:
“(a) s 126 does not prevent the award of a cushion or buffer for future economic loss [para 68];
(b) the following formulation, which was approved by the Court of Appeal in Kallouf v Middis [2008] NSWCA 61, applies [para 69]:
(1) Assess the ‘most likely’ of the possible future economic circumstances facing the claimant but for the accident (including type of employment, duration of employment and remuneration);
(2) Assess the claimant’s economic prospects as a consequence of the accident;
(3) Compensate the claimant for the difference between (1) and (2), including, where appropriate, through the use of a buffer;
(4) Adjust (3) by an appropriate percentage (including, where appropriate, by 0%) for vicissitudes, to reflect the possibility that the claimant may not have achieved (1) even had the accident not occurred;
(5) Include a statement of the assumptions made as the claimant’s most likely future circumstances and the appropriate percentage adjustment as to the above formulation see also Leslie & Britts, Motor Vehicle Law New South Wales, at [MAC.126.40].’”
These cases all deal with the prior legislation, for an award of damages to be made s 4.7 of the Motor Accident Injuries Act 2017 (MAI Act) must be satisfied. The legislation is in similar term to the prior legislation.
Counsel for the claimant referred to Kallouf v Middis [2008] NSWCA 61 (11 April 2008), Nominal Defendant v Livaja [2011] NSWCA 121 at 65 and Dal v Chol [2018] NSWCA 219 at [9].
In Kallouf v Middis [2008] NSWCA 61 (11 April 2008) Mc Coll J and Hall J noted at [49]:
“Any assessment in respect of the impairment of future earning capacity necessarily involves a consideration of possibilities. In some cases, it would be an error in treating as certain the fact that a plaintiff would lose wages for a period of years from the date of trial. Where incapacity is established as at the date of trial, what is to be evaluated will be the extent of the possibility that the plaintiff may not work in the future or may lose time from work and determine the allowance of proper compensation in respect of that possibility. That evaluation will depend upon the evidence. Where there is no evidence to support a conclusion that, as a matter of certainty, an injured plaintiff would not earn monies from employment for a number of years post trial, then such a finding would involve an error of principle: Ahmedi v Ahmedi (1991) 23 NSWLR 288 (at 302) per Clarke JA, Handley JA agreeing.”

Past economic loss

The claimant’s employment history is set out fully in her statement.
The claimant was employed LIPA Pharmaceuticals until 6 December 2017 when she was offered a redundancy package.
In July 2018 she accepted a position at Sphere Healthcare more in line with her experience and skills.
The claimant’s role was similar to her role at LIPA Pharmaceuticals and required her to frequently lift and carry heavy items, set up machinery and equipment and load materials. Consequently, she maintained a requisite level of physical fitness, strength and stamina.
There is a work history from 2004 up to ceasing work following this accident in 2019.
Objectively the evidence was that for 15 or 16 years she undertook similar work, following the accident she was aware of pain in the right side of the neck, in the right shoulder and the low back, she was off work for one week and then returned to work on light duties, in April 2019 she discontinued work and has not returned to work since then.

The claimant was employed on a casual basis. She regularly worked 38 hours each week without any restrictions.
It was asserted that the claimant earned the sum of $807.20 net per week.
In the submissions dated 17 April 2024 the insurer noted that in the week prior to the accident the payslips show that her hours of work reduced from 38 down to 30.4. This reduced her net income to $678 per week. This payslip, which pre-dates the accident is mirrored by payslips she subsequently received in the next few weeks. That is to say, it appears that her work hours had reduced down to 30.4. Thereafter they fluctuated between 30.4 down to as low as 7.6 hours per week in March 2019. After that date they increased to 22.8 hours per week.
The insurer notes that there is no issue that the claimant was paid as a casual for the days she worked and that the date of the accident was the last day of a week. Accordingly, there is no dispute that her weekly wage was $807 net per week.
It appears that she had a week off and was not paid for that week.
The insurer conceded she is entitled to a figure of $807 for that first week off.
Whilst the insurer contended a lower figure for pre-accident earning, they accepted that the figure for the lost week of $807.
In my view the payslips are consistent with the claimant ordinarily earning the sum of $807.20 net per week prior to the accident.
In the submissions dated 17 April 2024 the insurer noted that the “missing period” it is a period of 20 weeks. The claimant’s counsel suggested an allowance of $25,000 for that period. That would amount to a loss of $1,250 net per week. With superannuation at 11% on her net income, a total of $895.77 per week is produced if one were to assume, which is not the case, that the claimant did not work in those 20 weeks, an amount of just under $18,000 would be produced. That is including superannuation.
The insurer noted that from the time that she ceased work until the present, it is the insurer’s primary contention that she was capable of working as before and little, if any loss is occasioned. In part this submission is based upon the opinion of Dr Haig that her right arm injury is unrelated to the accident.
The insurer noted that Dr Haig had a complete history of her pre-accident injuries unlike Dr Gehr. In those circumstances, there should be no award of damages for the past or future economic loss.
In the alternate, the insurer submitted that an amount of $50,000 inclusive of superannuation for the past should be allowed.
The claimant’s submission of 26 April 2024 noted that the absence of the payslips for the ‘missing period’, does not preclude the claimant recovering a sum for that loss. The calculation of the loss over the missing period is imprecise. A reasonable approach is to allow a loss informed by the hours the claimant worked either side of that, as reflected in the payslips which could be obtained.
The summary of the payslips provided shows the claimant worked between 30.4, 22.8 and 7.6 hours per week after the accident. Adopting the middle hours worked, the claimant says her loss over the missing period should be calculated on the basis of a weekly loss of $256.93 net per week (that is reflecting the difference between the claimant’s average pre-accident earnings of $807.20 and her earnings for working 22.8 hours, being $550.27 net) x 20 weeks = $5,138.60. The claimant described this as a compromised figure, noting the claimant’s hourly rate increased after the accident.
Superannuation on the above loss is $565.25, calculated as follows: $5,138.60 x 11% = $565.25 (rounded).
The evidence from the claimant was that she had a period of time off work. She then returned to work on light duties that did not involve the heavy lifting. She tried to continue to undertake those light duties but after some time was no longer able to maintain the work.
I accept that prior to the accident the claimant was usually earing $807.20 net per week.
It was not disputed that the claimant did have some days off work immediately following the accident.
The insurer questioned the claimant in relation to the statement, specifically paragraph 47, to the effect that she had not worked following the accident.
At times she maintained that she had misunderstood and at times she maintained that what she had meant was that she hadn't worked following the operation.
The insurer questioned the claimant in relation to a certificate of capacity completed on 11 October 2018 that included a statement to the effect that the claimant had not worked since the accident.
The claimant was reluctant to accept that these assertions that she had not worked were incorrect.
The insurer notes the certificate of capacity from Dr Tosson of 11 October 2018 provides that she was fit for work for eight hours a day, five days a week with some lifting restrictions. The report also notes that she apparently told the doctor that she had not worked, presumably since the time of the accident.
The insurer notes the payslips from her employer show that she was working the same number of hours, 30.4, that she worked in the week prior to the accident.
The insurer also notes that the claimant told Dr Miniter in his report of 15 October 2020 that she continued to work as a machine operator.
The insurer notes the Ark Clinical notes record that the claimant was “completing full time pre-injury duties without restriction”. This reference seems inconsistent with the evidence.
The insurer notes this is contrary to evidence given by the claimant in her statements that she either did not work following the accident or only worked in light duties.
I accept that the claimant’s earning capacity has been diminished by reason of the injury.
The evidence in relation to the claimant’s incapacity is complicated, various medical practitioners express different views about the extent of the injuries to the various part of the body and then express different views about the extent of the incapacity. Some of the medical practitioners accepts some incapacity but attribute this to injuries unrelated to the accident.
I accept that as a result of the injuries sustained that the claimant had a period of incapacity following the accident and was then restricted to some form of light duties.
I accept that as a result of the injuries sustained that the claimant ceased work in or about April 2019.
Having ceased work the claimant underwent treatment.
Again, the evidence in relation to the claimant’s incapacity is complicated, various medical practitioners express different views about the extent of the injuries to the various part of the body and then express different views about the extent of the incapacity, the claim was then undergoing periods of treatment, and recovery and developed a psychological condition that has also impacted on her capacity.
I accept in the period from the claimant ceasing work in or about April 2019 to the date of the assessment that the claimant has remained incapacitated and unable to earn any income.
I accept that the diminution of earning capacity has been productive of financial loss.
The period from 24 September 2018 to 8 April 2019 is about 24 weeks.
If the claimant had no earnings during this period the loss would be $807.20 net per week for 24 weeks being $19,372.80.
In a period in October 2018 and March 2019 she earnt $678.36, if she had earnt this for the entire period, the weekly loss would have been $128.84 ($807.20 less $678.36).
I understand that the payslips show earning of about $550 and $203 in some periods, but if the claimant had averaged weekly earnings of $678.36 in this period, the loss would be $128.84 net per week x 24 being $3,092.16.
In my view this is the best estimate available on the evidence.
The period from 8 April 2019 to the assessment conference is a period of almost exactly five years, or about 261 weeks.The calculation is $807.20 net per week for 261 weeks being $210,679.20.
In my view this is the best estimate available on the evidence.
The total of both figures is $3,092.16 plus $210,679.20, being $213,771,20.
Noting that these are not precise calculations, I had adopted the use of a buffer of $213,000 based on the above calculations.
I award past economic loss in the sum of $213,000.
I make an allowance for Fox v Wood of $6,760, as agreed.
I note that the insurer is entitled to a credit of past wages paid to the claimant.

Past superannuation

The claimant also claims the loss of employer funded superannuation contributions on the above amount at a rate of 11%.
Based on my determination of past economic loss, superannuation on the above loss is calculated as follows, $213,000 x 11% = $23,430 (rounded).
I award past loss of superannuation in the sum of $23,430.

Future economic loss

In the submissions dated 17 April 2024 the insurer’s primary contention was that she was capable of working as before and little, if any loss is occasioned. In part this submission is based upon the opinion of Dr Haig that her right arm injury is unrelated to the accident.
The insurer noted that Dr Haig had a complete history of her pre-accident injuries unlike Dr Gehr. In those circumstances, there should be no award of damages for future economic loss.
In the alternate, the insurer submitted that an amount of $150,000 inclusive of superannuation for the future should be allowed.
The evidence was to the effect that the claimant had a solid and reliable work history from about 2004 up to about April 2019, about 15 years.
The evidence is to the effect that she had two children and continued to work. The claimant’s children were both over 20 years of age. The claimant had a history of undertaking what appears to be fairly similar work over that period of 15 years. The claimant did have a history of experiencing some medical issues prior to the accident and despite that had continued to work and continued to consistently earn.
Whilst the claimant had obtained a university qualification in Egypt, this was some time ago and likely to be of little benefit. Her skills, training and experience were entirely consistent with her pre-accident employment.
The work was described a requiring her to frequently lift and carry heavy items, set up machinery and equipment and load materials. It was asserted she was required to maintain a requisite level of physical fitness, strength and stamina.
In the context of her age, her personal situation, her skills, training and experience, in my view it was highly likely that she would have continued in such employment, but for the accident, or some other event.
Given the description of the nature of her work and her work history, I consider the possibility that she might have obtained promotion or other benefits, but for the accident to be relatively low.
Her evidence, at paragraph 118 of her statement, was that she would have worked “… at least up to retirement age”.
In relation to the possibility that the employment would not have been continuous, there was some evidence that the employer had subsequently encountered financial difficulties. There was the possibility her employment would not be continuous. Equally so, she had previously changed employers and there was no evidence to suggest that the role she was undertaking was a role that would not ordinarily be available.
The “most likely” of the possible future economic circumstances facing the claimant but for the accident was that she would have continued to work in a similar role earing a similar amount without promotion up to ordinary retirement age, being 67 years of age, absent some other unexpected complication.
The claimant maintains that she will now no longer obtain any employment.
The insurer contends that based upon the opinion of Dr Haig that her right arm injury is unrelated to the accident. For the reasons I have set out above, I do not accept that.
The insurer contends that in the alternate, the insurer submitted that an amount of $150,000 inclusive of superannuation for the future should be allowed.
The parties agreed:
(a)    working life expectancy: 67 years;
(b)    years until retirement from assessment conference: 16 years, and
(c)    5% multiplier for 16 years: 579.50.
In Kallouf v Middis [2008] NSWCA 61 (11 April 2008) the Court of Appeal in determining future economic loss court calculated the present value of a gross taxable income (to be calculated on the net weekly figure) per week from judgment until ordinary retirement age (at [29]), reduced this by vicissitudes (at [31]) and then reduced this by a percentage reflecting the residual earning capacity (see [82]).
As I understand it this was one of the submissions of the insurer, and that the reduction should be 50%.
As noted earlier, I accepted that in the period from the claimant ceasing work in or about April 2019 to the date of the assessment that the claimant has remained incapacitated and unbale to earn any income. The position in relation to the future was far more uncertain.
The evidence in relation to the claimant’s incapacity was complicated, with various medical practitioners expressing different views about the extent of the incapacity arising from the injuries and the impact of the psychological aspect as well.
The calculation for the future based on the pre-accident earrings is $807.20 net per week x 579.5 (5% multiplier for 16 years), being $467,772.40. This amount is reduced for vicissitudes, by 15%. Neither party submitted that the figure of 15% should not be used. $467,772.40 less 15% ($70,165.86) for vicissitudes of life is $397,606.54.
The obligation is to make the calculation based on the “most likely” future circumstances. There was evidence that the employer had gone into administration. In addition, there was evidence of some significant issue with her neck and shoulders prior to the accident.
I consider that the claimant sought to downplay these, to the extent that she maintained that she did not recall the extent of the treatment.
The prospect remained that absent any further injury, the issue with her neck and shoulders that were symptomatic prior to the accident could have been otherwise aggravated during her working life.
As noted earlier, in my view the consequences of the injuries sustained by the claimant fell somewhere between the views of Dr Gehr, Associate Professor Miniter and Dr Haig. On the evidence available I could not be more precise.
The evidence from Dr Gehr in relation to the claimant’s future economic loss is far from clear. When asked if the claimant was fit to return to her pre-accident employment on a full-time basis, Dr Gehr noted “she had not been able to get back to her pre-injury occupation”. He commented that, given her age, previous work experience, it is not realistic to consider other occupations. He noted various restrictions. He concluded she has effectively retired now. This is related to the injuries she sustained from subject accident.
I did not reach the view that the evidence from Dr Gehr was that, as a matter of certainty, the claimant would not earn monies from employment for a number of years post assessment.
The report from Mr Glen Dwyer dated 19 January 2024 went some way in that direction. Mr Dwyer concluded that her prospects for securing and sustaining unrestricted employment in a recognised occupation in the open labour market were poor to negligible. Mr Dwyer concluded that due to the severity of her functional incapacities, her best opportunity to maintain participation in employment in the future is in a position of supported employment.
In undertaking intermittent positions of supported employment, she would be required only to work within her functional limitations for a supportive and accommodating employer in an environment where it is acceptable for her to perform some, but not all, of the set tasks of a given job, and where she can take unscheduled rest or postural breaks as needed. Whilst supported employment positions can be beneficial to an injured worker in supporting the rehabilitation process, participating in a position of supported employment is not indicative of a capacity to earn an income in unrestricted employment in the open labour market.
Mr Dwyer considered that she has a poor prognosis for any further significant recovery, her negligible work capacity for employment in the open labour market will likely persist for the foreseeable future.
In my view the report from Mr Dwyer was reliant upon a pessimistic evaluation of her medical condition, her personal attributes and her capacity.
I did not accept that her functional incapacities were as significant as Mr Dwyer based his report.
In all of the circumstances, I did not consider that I could accept the conclusions reached by Mr Dwyer.
The insurer relied upon a Vocational Capacity Centre report dated 8 February 2024. There were aspects of this report that I consider were of assistance. I did not accept that, at the time of the assessment that the claimant was fit to return to her pre-accident employment as described.
In my view the submissions in respect of reduction proposed by the insurer is excessive, however, I do accept there is some residual capacity.
The claimant referred to Kallouf v Middis, Nominal Defendant v Livaja and Dal v Chol. These cases note the distinction between disability and diminished earning capacity. Simply because a person has an “ability to undertake certain tasks” does not necessarily follow that they have a residual earning capacity. There is a need for a practical assessment of obtaining such employment. In that context, the insurer had an evidentiary burden to adduce evidence of the kind of work the claimant could do and also what jobs were open to the claimant.
In my view the difficulty with this contention was that this was not a matter where there was clear evidence in relation to the claimant’s ability to undertake certain tasks, in my view there was considerable uncertainty about these very issues.
The claimant did not establish that she had no residual capacity whatsoever.
In my view the evidence did not support a conclusion that, as a matter of certainty, the claimant would not earn monies from employment for a number of years post assessment.
The insurer maintained the evidence supported a conclusion the claimant could undertake some work.
The claimant had not sought to retrain or to obtain any work.
The claimant had completed a bachelor’s degree in Egypt with honours and the assessment suggested some capacity to learn new skills. There was the potential for the claimant to re-train and undertake some other work in the future.
In my view the claimant will be able to undertake some work in the future, although I accept that any residual capacity is limited and may involve part-time employment in lighter work than prior to the accident or similar work with special provision for her. If she could learn new skills she may be able to undertake clerical type work potentially full time and without restriction.
For the reasons outlined above there is some difficulty in accurately ascertaining the “most likely” of the possible future economic circumstances facing the claimant but for the accident. There is some difficulty making this as a mathematical calculation.
For the reasons outlined above there is some difficulty in accurately ascertaining the claimant’s economic prospects as a consequence of the accident.
The difficulty in calculating both of the above makes it difficult to ascertain the difference between the two.
This is in the context where I do not consider that there is clear evidence that the claimant would not earn monies from employment in the future.
In the context of the comments above, I consider that a “buffer” is the most appropriate way of determining future economic loss.
Noting the findings I have made, and all of the circumstances discussed, in seeking to determine what is a fair award, I am of the view that an allowance for the claimant’s future economic loss by allowing a buffer of $240,000.

Future superannuation

The parties agreed the rate of superannuation on net amount of 14.44% (as per table on page 25 of Furzer Crestani Handbook and decision of Najdovski v Crnojlovic [2008] NSWCA 175 should be adopted.

The calculation for the loss of future superannuation based on the future economic loss is $240,000 x 14.4, being $34,560.

Travel claim

Entitlement to the travel claim was not pressed at the assessment.
Dr Haig noted “I do not believe there are any limitations in terms of her travelling.”
The claimant’s oral evidence was to the effect that she had not travelled overseas for some time. She did not assert that she was likely to or give evidence to support the travel claim.
I accepted the opinion of Dr Haig on this issue and made no allowance.

Costs

In relation to the legal costs claimed, the insurer disputed the entitlement to the sum of $1,799.40 in relation to conferences contending that an allowance should be made for two hours. In my view three hours seems reasonable noting the issues involved in the matter.
In relation to disbursements, the claimant sought allowance for the report from Dr Gertler dated 4 October 2023 and the reports of Dr Gehr dated 23 October 2020 and
9 December 2021 in the sum of $1,919.36.
In relation to disbursements, the insurer agreed the allowance for the report from Dr Gertler dated 4 October 2023. The insurer disputed the amount in relation to the reports of Dr Gehr, the insurer noted that the amount for the report dated 23 October 2020 was “TBC” and in relation to the report dated 9 December 2021 was $1,710.
The insurer subsequently confirmed the that the amount for the report dated
23 October 2020 was $1,660.16.
In my view the cost of these reports should be allowed in accordance with the applicable rates at the time.
I allowed costs as follows:
(a)    Dr Gertler dated 4 October 2023 in the sum of $1,919.36;
(b)    Dr Gehr dated 23 October 2020 in the sum of $1,660.16, and
(c)    Dr Gehr dated 9 December 2021 in the sum of $1,710.
The insurer disputed the entitlement to the Vocational Assessment report on the basis that it was not reasonable and/or necessary.
The significant dispute was in relation to economic loss. The insurer obtained a Vocational Capacity report and in my view given the extent of the dispute it was reasonable and necessary for the claimant to Vocational Capacity report, I accepted the sum of $3,162.50.
The total of the claimant’s costs are $46,223.12 inclusive of GST as set out in the Damages and Costs Calculator.

[2024] NSWPIC 359

5 July 2024