Barzani v Insurance Australia Limited t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	Barzani v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 244
CLAIMANT:	Dilzar Barzani
INSURER:	IAG Limited trading as NRMA Insurance
REVIEW PANEL
MEMBER:	Alexander Bolton
MEDICAL ASSESSOR:	Margaret Gibson
MEDICAL ASSESSOR:	Adeline Hodgkinson
DATE OF DECISION:	19 April 2024
CATCHWORDS:	MOTOR ACCIDENTS – Review of certificate of Medical Assessor (MA) Cameron of 5 July 2022 going to the degree of impairment of earning capacity of the claimant and to whether the claimant suffered a traumatic brain injury; the MA found that the claimant did not have an impairment of earning capacity; claimant injured in a motor vehicle accident on 5 July 2018; at the time of the accident the claimant held two jobs, one full-time as a customer relations officer and one part-time as a loading dock manager; shortly after the accident the claimant travelled on an overseas holiday and posted on social media details of unrestricted physical activities; on return to Australia the claimant resigned his full-time position and worked part-time thereafter in his old position as a loading dock manager/supervisor; medical examinations of the claimant were unremarkable; going to the question of whether the claimant had suffered an impairment of earning capacity MA Gibson found that he had not; regarding the issue of whether the claimant had suffered a traumatic brain injury MA Hodgkinson found that he had not; Held – certificate and reasons of MA Cameron affirmed.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION 1. The Panel affirms the certificate and reasons of Medical Assesor Cameron of 5 July 2022. 2. The Panel finds that the claimant does not have a degree of impairment of earning capacity that has resulted from the injury caused by the motor accident.

STATEMENT OF REASONS

INTRODUCTION

This is an application for review of part only of the decision of Medical Assessor Cameron (the Medical Assessor) dated 5 July 2022.
The claimant limits his review to the finding of the Medical Assessor going to impairment of the claimant’s earning capacity resulting from the subject accident.

The decision for review

Regarding the review application, the Medical Assessor found that the claimant did not have a degree of impairment of earning capacity that has resulted from the injury caused by the motor accident.
At the time of the motor vehicle crash, Mr Barzani was working full-time in customer relations with ‘Luxury Escapes’. This was an office-based role which he had for about two years before the accident.
Mr Barzani also had a second job as a supervisor on the dock at Kmart. This is a part-time job that he had had for many years.
The Medical Assessor considered the claimant’s whole person impairment (WPI), a treatment and care dispute and a dispute about the claimant’s earning capacity. This review is only about the claimant’s loss of earning capacity, if any. The claimant submits that the Medical Assessor erred in his approach to assessing impairment of earning capacity. The claimant states the Medical Assessor failed to take into account his capacity to perform his pre-accident part time job, working on the loading dock at Kmart, and his capacity to perform work on the open labour market.
Concerning the assessment of treatment and care and whether this was reasonable and necessary, the Medical Assessor issued a certificate issued under s 7.23(1) the Motor Accident Injuries Act 2017 (the Act). He concluded that the following treatment and care:
·        MRI of the lumbar spine;
·        four physiotherapy treatments to the lumbar spine from 29 January 2021 to
2 March 2021;
·        Gabapentin (physical injuries) from date pf prescription and ongoing;
·        Circadin (sleeping tablet – due to physical injuries);
·        Modafinil (anti-sleepiness tablet – physical) from date of prescription and ongoing;
·        Omeprazole (physical) from date of prescription and ongoing;
·        Belsomra (sleeping tablet – due to physical injuries) from date of prescription and ongoing;
·        Melatonin (sleeping tablet – due to physical injuries) from date of prescription and ongoing, and
·        the epidural steroid injection to claimant L5/S1.
was not reasonable and necessary in the circumstances as it did not relate to the injury caused by the accident.
Going to the assessment of care and improving the recovery of the claimant, the Medical Assessor also found that the following treatment or care:
• MRI of the lumbar spine, and
• four physiotherapy treatments to the lumbar spine from 29 January 2021 to
2 March 2021;
would not improve the recovery of the claimant.
The Medical Assessor assessed a WPI of 2% with respect to the claimant’s right hip soft tissue injury.

The accident

The accident occurred on 5 July 2018. The claimant was the driver of a car proceeding through a roundabout when he was hit on the passenger side by another car. He said he hit his forehead on the right side. The claimant reported that he remembered the other driver assisting him. He said he moved his car but felt hazy. As the claimant was close to his home, he reported that he was able to drive his car there.

DOCUMENTATION

The parties have each presented their respective bundles of documents upon which they rely. The Panel have read all the documentation. If a particular document is not referred to by the Panel, this does not mean that the Panel or a Panel Member has not read it, in much the same manner as parties not referring to or not specifically relying on a document in their own bundle and submissions.

Claimant’s submissions

The claimant submits that the Medical Assessor has accepted that there are ongoing complaints of pain in the claimant’s right upper thigh, hip and right buttock region as well as some back pain and neck pain. He assessed 2% WPI in relation to the right hip.
The claimant submits that in making his assessment as to impairment of earning capacity, it seems that the Medical Assessor has confined his assessment to a consideration about whether the claimant could undertake his previous office based job in customer relations with a travel agent. On this point it is submitted that the Medical Assessor erred in that he should also have taken into account the claimant’s capacity.
Further, the claimant submits that the Medical Assessor said that he considered that the claimant would have been incapacitated for his travel agent role for between one to three months post-accident. The claimant says that the Medical Assessor did not give a proper explanation how he reached such conclusion. It is submitted that such opinion is speculative because:
(a) it is based on an examination of the claimant conducted some four years
post-accident, and
(b) the claimant had conceded marked improvement in symptoms in the intervening period as a result of the input of a neighbour that was studying physiology.
The claimant refers to page 2 of the Medical Assessor’s certificate where he says:
“The injured person does have a degree of impairment of earning capacity
that has resulted from the injury caused by the motor accident.”
The claimant refers to page 5 of the certificate where the Medical Assessor records:
“At the time of the motor vehicle crash, Mr Barzani was working full-time in customer relations with ‘Luxury Escapes’. Th claimant says that this was an office based role which he had for about two years.”
The claimant submits that he also had a second job as a supervisor on the dock at Kmart. This was a part time job that he had had for many years.
The claimant noted that at page 6 of his report, the Medical Assessor reported the following in relation to treatment:
“There had been some physiotherapy. However, Mr Barzani said that he had been
helped on an informal basis by a neighbour who is in training in exercise physiology. He said that there had been marked improvement as a result of that input.”
The claimant refers to the earning capacity assessment at page 12 of the Medical Assessor’s certificate where he says:
“Mr Barzani currently has continuing symptoms of pain from multiple body regions. Due to these symptoms Mr Barzani states that he does not have full work capacity.
Based on the physical injuries that Mr Barzani sustained he would have had reduced work capacity for one to three months following the subject motor vehicle crash.
The physical injuries would not be expected to have an impact on working capacity after that time because they have not caused significant permanent impairment and they were not injuries that cause long term limitations in work related abilities.
From the viewpoint of capacity and fitness for work due to the physical injuries that

Mr Barzani sustained he has capacity for work in occupations similar to that he had at the time of the motor vehicle crash. That was an office based role and he has capacity to do that type of work with reference to the physical injuries that he sustained.”
Finally at Page 13, the Medical Assessor says:
“The injured person does not have a degree of impairment of earning capacity that has resulted from the injury caused by the motor accident.”
The claimant submits that it seems that the Medical Assessor has accepted that there are ongoing complaints of pain in the right upper thigh, hip and right buttock region as well as some back pain and neck pain. He has found 2% WPI in relation to the right hip.
The claimant says that in making his assessment as to impairment of earning capacity, it seems that the Medical Assessor has confined his assessment to a consideration of whether the claimant could undertake his previous office based job in customer relations with a travel agent. In this respect, the claimant submits that the Medical Assessor has erred in that he should also have taken into account the claimant’s capacity:
(a) to perform his part time job working on the loading dock at Kmart, and
(b) to perform work on the open labour market.
Further, the claimant submits that that the Medical Assessor considers that the claimant would have been incapacitated for his travel agent role for between one to three months post- accident. However, it is submitted that the Medical Assessor does not give a proper explanation as to how he has reached such conclusion. It is submitted that such opinion is speculative because:
(a) it is based on an examination of the claimant conducted some four years post-accident, and
(b) the claimant had conceded marked improvement in symptoms in the intervening period as a result of the input of a neighbour that was studying physiology.
Specifically, regarding the claimant’s earning capacity assessment, he has provided separate submissions.
The claimant says that as a result of the accident, he sustained injuries to his cervical spine, thoracic spine, lumbar spine, right shoulder, right knee, right hip and psychological injuries (post-traumatic stress disorder and major depressive disorder).
The claimant says that his physical injuries are well documented in medical evidence.
The claimant refers to an initial consultation report dated 11 September 2018 of

Dr Calavache-Rubio of Workers Doctors. He diagnosed the claimant with a “Head injury; cervical spine (NDI: 62%); abdominal contusion, lumbar spine radiculopathy (ODI: 53%); right knee strain; right hip strain; trocanteric bursitis (US); acute stress disorder (IESr: 35)”.
The claimant says that his injuries to his cervical spine, lumbar spine and thoracic spine were confirmed in an MRI scan dated 15 October 2018 which concluded “Fluid/inflammation right L4/5 facet joint”.
In addition, the claimant says that an MRI of the claimant's right hip indicated “1. moderate articular cartilage loss both anteriorly and posteriorly; 2. Features of femoracetabular impingement”.
The claimant says that a cerebral perfusion scan dated 1 May 2019 demonstrated the claimant had “multiple cerebral perfusion abnormalities ...although other aetiologies (e.g. vasculitic) [were] not entirely excluded”.
The claimant also refers to and relies on the report of Dr Bodel dated 20 August 2020.
The claimant refers to page 6 of Dr Bodel’s report where he says that the claimant has:
“a closed head injury and a possible traumatic brain injury. He also has a soft tissue injury in the neck in the form of a whiplash associated disorder and a soft tissue injury to the region of the right shoulder which is probably a minor rotator cuff injury although I have not seen any investigations to confirm this. He also had a soft tissue musculoligamentous injury to the lower part of the back and there is no evidence of disc pathology in that region and he may have strained the sacroiliac joint on the right hand side. He also has a small labral tear in the region of the right hip.”
The claimant submits that despite pain management and conservative treatment, his injuries have merely exacerbated over time. The claimant submits that this is consistent with the medical records from Workers Doctors, medical records from the Valley Plaza Medical Centre and various Certificates of Capacity which document his 'intermittent headaches' and 'persistent pain and discomfort'.
The claimant says that more recently, an MRI of the right hip report of Dr Markson dated
11 June 2020 indicated a “probable small tear of the labrum centred anterosuperiorly. Cam impingement anatomy”.
Regarding the claimant’s earning capacity, the claimant submits that he primarily relies on various certificates of capacity which have been provided. The claimant says that in accordance with cl 4.58.6 of the Motor Accident Guidelines (the Guidelines), the insurer ought to consider the claimant's certificate of fitness in determining his earning capacity.
The claimant submits that although he was previously deemed fit to work for five hours a day, two days a week, a Certificate of Capacity dated 23 October 2020 indicated he had no capacity for work. Substantiating his opinion, Dr Moo concluded that the claimant had no capacity for employment due to 'Head Trauma with Brain Injury; Cervical Spine (ND!: 72%); Lumbar Spine Radiculopathy (ODI: 72%); R) Knee Strain; R)Hip strain; Trochantertic bursitis (US); PTSD (PCL-5: 65), SI Joint aggravation' as a result of the injuries he sustained in the subject motor vehicle accident. The claimant says that this is a testament to the aggravation of the claimant's injury from the subject accident to date.
The claimant submits that Dr Bertucen said, on page 8 of his report, that the claimant “would be incapable of returning to work full-time as a consultant for Luxury Escapes (or a similar organisation) owing to the requirement for high speed decision making and liaising with clients face to face”.
The claimant submits that the insurer ought to consider the nature of the claimant's pre-injury employment pursuant to cl 4.58.4 of the Guidelines.
The claimant submits that this view is supported by Dr Bodel on page 7 of his report dated 20 August 2020. The claimant says that Dr Bodel concluded that the claimant “is not physically capable of work based on his current presentation”.
The claimant submits that ultimately, but for the accident, he would have continued working his two jobs, earning no less than $1,000 net per week.

The insurer’s submissions

The insurer notes that the Medical Assessor found the claimant to have a 2% WPI in relation to the injury to his right hip. The insurer submits that this does not translate to the claimant having a degree of impairment of earning capacity.
The insurer also notes that Medical Assessor Cameron found that the claimant does not have a degree of impairment of earning capacity that has resulted from the injury caused by the motor accident.
The insurer referred to the claimant’s submission that in making his assessment of impairment of earning capacity it appeared that the Medical Assessor had confined his assessment to a consideration of whether the claimant could undertake his previous office based job in customer relations with a travel agent. It is submitted that Medical Assessor Cameron has erred in that he should have also taken into account the claimant’s capacity:
(a) to perform his part time job working on the loading dock at K Mart, and
(b) to perform work on the open labour market.
By way of context, the insurer noted that the claimant referred to the Medical Assessor stating that he considered the claimant would have been incapacitated for his travel agent role for between one to three months post-accident but did not give a proper explanation about how he had reached such a conclusion. The insurer said that the claimant submitted that it was speculative as it was based on an examination of the claimant conducted four years post-accident and further noting that the claimant had conceded marked improvement in symptoms in the intervening period as a result of the input of a neighbour that was studying physiology.
The insurer submits that the Medical Assessor has not erred in his approach to assessing impairment of earning capacity and submits that the Medical Assessor took a detailed history of the claimant’s pre and post-accident employment. The insurer also noted that he considered the assessment of Medical Assessor Wan in respect of minor injury as part of his assessment and under the heading right hip – soft tissue injury assessed the claimant as having a mild hip impairment assessed at 2% WPI.
The insurer says that the Medical Assessor in his determination on earning capacity relevantly noted that the claimant’s physical injuries would not be expected to have an impact on working capacity after one to three months following the motor vehicle crash because they had not caused significant permanent impairment and they were not injuries that caused long term limitations in work related abilities.
Regarding the claimant’s current capacity and fitness for work the insurer noted that the Medical Assessor considered the claimant’s capacity and fitness for work due to the physical injuries sustained to be capacity for work in occupations similar to that he had at the time of the accident, that is, an office based role and that he had the capacity to do that type of work with reference to the physical injuries that he sustained.
The insurer submits that the Medical Assessor has clearly considered the claimant’s occupations both pre and post the motor vehicle accident and considered the claimant to have capacity to perform his pre-accident roles.
Regarding the original earning capacity dispute, the insurer submits that the contemporaneous records support the claimant being involved in a low speed accident and having no obvious significant injury. The insurer says that the photographs of the vehicle also support this.
The insurer noted that shortly after the accident the claimant changed treating doctors to Workers Doctors. The insurer submits that the records of this subsequent practice do not accurately record the claimant’s pre-accident history noting the following from Valley Plaza Medical Centre records under the heading Investigation requests:
“On 5 September 2016, Dr Karthigesu requested a plain x-ray of the cervical spine with a note “pain in neck over lower left paraspinal muscles of neck. Was in an MVA.
On 16 February 2018, Dr Ong arranged for a referral for radiology for “lumbar and both sacroiliac spines with a history recorded of four years of right lower back pain.”
The insurer relies on a report of Dr Mitchell. He considered the claimant had a capacity for suitable work avoiding any aggravation of reported symptoms and considered the claimant was able to work on a full-time basis. He considered that there was no significant basis to accept that the claimant had been incapacitated for the time alleged due to physical symptoms.
In a supplementary report Dr Mitchell considered the claimant’s treatment appeared to be excessive with no apparent requirements for extensive medication. He agreed with his previous assessment and considered symptoms to be of a soft tissue nature and in his opinion would normally have resolved over a period of between three and six months after the accident.

A functional assessment was undertaken by Ms Farag on 28 August 2020. She considered the claimant capable of undertaking a range of work including his pre-accident occupation and based upon the clinical assessment findings, he could in her assessment undertake his role at Kmart. She also considered the claimant was not precluded from working full-time hours.
Ms Hartley, vocational assessor, noted inconsistencies in the claimant’s reporting of symptoms, specifics of work history and lack of clarity in vocational aspirations she considered that there were concerns the claimant had become highly preoccupied not only the about the consequences of his injury but also the claim process. She considered that the claim process may be playing a part in the claimant’s ongoing reluctance to look for work or consider work options and consider appropriate locational possibilities be found in the clerical and administrative workers category and with further training in the professional and community and personal services workers categories.
The insurer submits that these two assessors combined concluded that the claimant was capable of performing work full-time basis.
The insurer noted that Dr Vickery saw no psychiatric impediment to the claimant working pre-accident duties. The claimant was undertaking studies at university but requested by email of 10 January 2019 a deferral when he said “due to my travels and work commitments I had to take about subjects over the course of two semesters in 2018. I intend to give a full commitment to my studies as of this year”. The insurer says that while he mentioned travel and work commitments, he made no mention of the accident.
The claimant was involved in two further accidents being a car accident in 2019 and a bike accident in July 2019. The insurer noted that the claimant’s treating doctors did not make any reference to these further accidents notwithstanding that the claimant provided a history of accidents to his doctors and to Medical Assessor Wan.
The insurer submits that the claimant’s reasons for deferring his university course are not related to the accident as shown in the records. The insurer says that the claimant’s social media presence shows him actively participating in physical activities including jet skiing, fly boarding and parasailing, snow skiing, swimming, attending festivals and social occasions. The insurer submits that this is not consistent with the claimant’s assertion that he is unable to perform activities and is unable to work in any capacity.
The insurer submits that the claimant was involved in a minor car accident on 5 July 2018 but alleges significant injuries which are not consistent with the contemporaneous evidence and the medical evidence.
The insurer submits that the claimant is fit for full-time employment and this is the correct determination based upon the evidence which includes the reports of Dr Mitchell, the Vocational Capacity Centre report and report of Dr Vickery.

Medical evidence

Dr Calavache-Rubio in his initial consultation report dated 11 September 2018, diagnosed the claimant with a “Head Injury; Cervical Spine, Abdominal Contusion, Lumbar Spine Radiculopathy, R) Knee Strain; R)Hip strain; Trochanteric [sic] bursitis; Acute Stress Disorder”.
Dr Moo concluded that the claimant had no capacity for employment due to “Head Trauma with Brain Injury; Cervical Spine Lumbar Spine Radiculopathy; R) Knee Strain; R)Hip strain; Trochanteric bursitis ; PTSD , SI Joint aggravation” as a result of the injuries he sustained in the subject accident.
The claimant had an MRI scan dated 15 October 2018 which noted injuries to his cervical spine, lumbar spine and thoracic spine and with a conclusion of 'Fluid/inflammation right L4/5 facet joint'.
An MRI of the claimant's right hip indicated “I. Moderate articular cartilage loss both anteriorly and posteriorly; 2. Features of femoroacetabular [sic] impingement”.
A cerebral perfusion scan dated 1 May 2019 concluded that the claimant had “multiple cerebral perfusion abnormalities ...although other aetiologies (e.g. vasculitic) [were] not entirely excluded”.
The claimant obtained a report of Dr Bodel dated 20 August 2020. Dr Bodel said that the claimant has a closed head injury and a possible traumatic brain injury. He also has a soft tissue injury in the neck in the form of a whiplash associated disorder and a soft tissue injury to the region of the right shoulder which is probably a minor rotator cuff injury although I have not seen any investigations to confirm this. He also had a soft tissue musculoligamentous injury to the lower part of the back and there is no evidence of disc pathology in that region, and he may have strained the sacroiliac joint on the right hand side. He also has a small labral tear in the region of the right hip.
Medical records from the Valley Plaza Medical Centre and various Certificates of Capacity document the claimant’s 'intermittent headaches' and 'persistent pain and discomfort'.
An MRI of the right hip report of Dr Markson dated 11 June 2020 indicated a 'probable small tear of the labrum centred anterosuperiorly. Cam impingement anatomy'.
The claimant has also sought psychological treatment, undergoing in excess of 20 consultations. The claimant has been diagnosed as having chronic post-traumatic stress disorder and co-morbid major depressive disorder.
The claimant was examined by Medical Assessor Cameron. He provided the following WPI assessment amounting to 2%.

Body Part or System	AMA4 Guides/ Guidelines References (chapter/ page/table)	Permanent (YES/NO)	Current %WPI*	*%WPI from pre-existing OR subsequent causes**	*%WPI due to motor accident**
1	Head – soft tissue injury	Section 6.164, page 34, MAG	Yes	0	0	0
2	Cervical spine – soft tissue injury	Chapter 3, page 103 (AMA4)	Yes	0	0	0
3	Thoracic spine – soft tissue injury	Chapter 3, page 104 (AMA4)	Yes	0	0	0
4	Right shoulder – soft tissue injury	Chapter 3, Figures 38, 41 and 44 (pages 42 to 44 AMA4 Guides)	Yes	0	0	0
5	Right hip soft tissue injury	Chapter 3, Table 40, page 78 AMA4	Yes	2	0	2
6	Lumbar spine – soft tissue injury	Chapter 3, page 102 (AMA4)	Yes	0	0	0

Regarding the claimant’s earning capacity, the Medical Assessor said the claimant had continuing symptoms of pain from multiple body regions.
The Medical Assessor said that based on the physical injuries that the claimant sustained he would have had reduced work capacity for one to three months following the subject accident.
The Medical Assessor said that the physical injuries would not be expected to have an impact on working capacity after that time because they have not caused significant permanent impairment and they were not injuries that cause long term limitations in work related abilities.
Regarding capacity and fitness for work due to the physical injuries that the claimant sustained, the Medical Assessor said that the claimant had capacity for work in occupations similar to that he had at the time of the accident. The Medical Assessor said that this was an office-based role and he had the capacity to do that type of work with reference to the physical injuries that he sustained. The claimant says that the Medical Assessor noted that prior to the accident, the claimant had a full-time job working in customer relations at Luxury Escapes and a second job, as a supervisor on the dock at Kmart. The Medical Assessor said that from the viewpoint of capacity and fitness for work due to the physical injuries that the claimant sustained he had capacity for work in occupations like that he had at the time of the accident. That was an office-based role and the Medical Assessor said that the claimant had the capacity to do that type of work with reference to the physical injuries that he sustained. However, the claimant complained that the Medical Assessor did not address the claimant’s second job, working as a supervisor on the dock at Kmart, in providing reasons regarding the finding that the claimant does not have a degree of impairment of earning capacity that has resulted from the injury caused by the accident.
The claimant was also reviewed by Medical Assessor Wan to determine if he had suffered a threshold or non-threshold injury. Medical Assessor Wan found that an injury to the claimant’s lumbar spine was a threshold injury but that an injury to his right hip, being an articular cartilage injury was a non-threshold injury.
Medical Assessor Wan also found that moderate abnormal cerebral perfusion abnormalities were not caused by the accident and therefore did not assess whether this was a threshold or non-threshold injury.
Medical Assessor Ian Cameron determined that the abnormal perfusion scan was not caused by the accident
Medical Assessor Cameron’s interpretation of the cerebral perfusion results:
“The reported abnormalities were multifocal and fairly widespread, affecting the both temporal lobes, both frontal lobes, posterior parietal/parieto-occipital regions bilaterally and posterior frontal lobes bilaterally (though of different degrees). The patterns suggest that it was unlikely to be due to traumatic head injury from the subject MVA, as it only involved a relatively low speed MVA which hit his right sided head. I expect that it would have been more on 1 side or more locally if the significant abnormalities were due to the subject MVA. The widespread involvement suggests more generalised aetiologies such as vasculitis or other conditions that were causally unrelated to the subject MVA.”
The Medical Assessor said that the soft tissue injury to the head has resolved. The head injury was not assessable as causing permanent impairment. While Mr Barzani has had an impact to the head there are no recorded abnormalities in Glasgow Coma Score, post traumatic amnesia or brain imaging abnormalities associated with brain trauma. The criteria set out in section 6.164, page 34 Motor Accident Guidelines, are not satisfied.
Dr Ong’s notes confirm the claimant was momentarily dazed in the accident, hit right side of head. Pain in right head, neck lower back right shin and right middle toe. Headache presentations in 2013, October 2017, Feb 2018 (with gastric upset).
The claimant had two further accidents –a car accident in 2019 and a bike accident in mid July 2019. The is no other information about these;
“Liverpool Hospital: speed of accident described to medical staff by patient was 30-40kph.estimated time of accident 1400. Time triaged 1846. Time seen in assessment area of Emergency Department around 2245 He described hitting his head on the side window. Brief loss of consciousness reported – about 1 second. Self-extricated. Walking around all day; no pain immediately stiff in neck, right hip pain – states a long-term pain but different quality.”
Glasgow Coma Score (GCS) 15/15 at 2036.
Report by Medical Assessor Tai Tak Wan:
“The following injuries WERE NOT caused by the motor accident:
Traumatic brain injury - moderate cerebral perfusion abnormality There is no evidence of traumatic brain injury sustained in the subject MVA, although the claimant reported a brief loss of consciousness. The reported cerebral perfusion abnormality in the cerebral perfusion scan of 1 May 2019 is not causally related to the subject MVA.”
Medical Assessor Wan has completed a mental health assessment in his clinical examination and concluded the claimant achieved full marks in the assessment and had no cognitive impairment. Medical Assessor Wan reported the claimant had been doing well in his studies. He noted that in the clinical examination with Dr Bertucen, the claimant was articulate, and had adequate attention and concentration. Speech rate was normal. The claimant reported to the Medical Assessor that his hours for study had been reduced due to decreased in concentration.
Images of vehicles involved in the subject accident. Deformation of the front panels on corresponding sides of the vehicles consistent with the collision described. Bodywork deformation consistent with the speed of collision described.
Dr Vickery – psychiatric assessment:
“ Psychiatric diagnoses 1. Somatic Symptom Disorder.
Category Class Reason for Decision
1. Self Care and Personal Hygiene 1 There is no psychological impairment in hygiene or grooming.
2. Social and Recreational Activities 1 Mr Barzani spends time with his nephew and niece with playing card games or helping them with their homework.” Mr Barzani occasionally meets up with old school friends as “I have a connection through ‘What’s Up’.” Mr Barzani watches the news however “I’m not a big user of social media.” There are restrictions on any recreational activities due to incapacitating pain perception which is discounted.
3. Travel 1 Mr Barzani has ceased driving however this was due to a subsequent motor vehicle accident.
4. Social Functioning 3 Mr Barzani is close to his parents and siblings however ‘they can annoy me because of their frustration with me not doing anything because of my pain.’ There was a break-up in a seven year heterosexual relationship in 2019 and ‘now I’ve learnt she has a new boyfriend.’
5. Concentration, Persistence and Pace 1 Mr Barzani reported he had undertaken cognitive testing for “brain trauma” with Dr St George and ‘I was told there was no damage.’ There is reported to be impairment in short-term memory with “not knowing what day it is” while his concentration is variable. There was no cognitive impairment noted in the assessment.
6. Employability 1 In the report by Consultant Psychiatrist Dr Jeff Bertucen of
11 March 2020 it was noted “Mr Barzani continues to work casually in a manual and undemanding role for Kmart (10 hours per week in the loading dock) and also appears to be studying two days a week at UWS. In my opinion he would probably be capable of some additional clerical work consistent with his qualifications for another 10 or 15 hours per week.” Mr Barzani was assessed as fit for 25 hours work or its equivalent a week however Dr Bertucen did not include the time Mr Barzani would be expected to undertake in study/assignments which would add a further 10 to 15 hours for a total of 35 to 40 hours a week. Mr Barzani had continued with his one shift a week with Kmart until July 2020 when ‘I was told I had to stop working by the doctor.’ Mr Barzani reported ‘I was doing a full four units last semester in my Primary School Teaching University Degree but I had to pull out of two of the units and the practical teaching unit has been delayed until later in the year.’
List classes in ascending order:   1 1 1 1 1 3 Median Class Value:
1 Aggregate Score:     8 %
Whole Person Impairment:         1 %”
Dr Vickery said that somatic symptom disorder is a somatoform disorder and is not utilised in the assessment of WPI.

MEDICAL EXAMINATION

The claimant was examined on behalf of the Panel by Medical Assessor Gibson. A further interview occurred by Teams conference on 1 March 2024. Her report and her notes follow;
“Mr Barzani attended unaccompanied. He said his sister had driven him from home in Green Valley, the trip taking 50 minutes.
Past Medical History
Mr Barzani had fractured his left collar bone on three occasions, the last time in his mid-teens. The fracture had healed without requiring any surgical intervention.
He suffered a patellar dislocation of his right knee in 2013.
There was no other history of prior injuries or accidents.
When asked, he could not recall having had any low back or hip pain prior to the subject accident. His attention was drawn to the notes of Dr Kim Ong, who on 16 February 2018 had noted, ‘said to have 4 years of right lower back pain, occasional ache right medial knee.’ Imaging referral was completed for the lumbar and both sacroiliac spines”. A recall notice had been sent out on 22 February 2018 regarding the Radiology. On 15 March 2018, the doctor noted "ongoing right lower back pain, lately has nocte pain, pain daytime, pain and x-ray advised, refer Dr G Graham." Also that the results of x-ray spine and lumbosacral region x-ray sacroiliac joints were given to patient.
From the clinical notes, Dr Bashir Raji had examined Mr Barzani on 31 August 2016, noting a motor vehicle accident, air bag injuring nose, neck pain, but no swelling or bruises. On 2 September 2016, neck pain, stiffness neck, reduced range of motion. On 5 September 2016, Dr Karthigesu noted neck pain and tenderness and on 20 December 2016 low back pain complaints were recorded by Dr Magdy Farag. Further complaints of low back pain were recorded by Dr Kim Ong on 28 February 2017 and

Dr Bashir Raji on 1 March 2017.
When asked, Mr Barzani had no recollection of having any back pain or sacroiliac pain prior to the subject accident, nor having been referred to Dr Gotis Graham.
Occupational History
Mr Barzani had completed a Bachelor of Business and Commerce and later a Masters in International Business Management.
He worked with ANZ Bank in the mailroom. And he was later working full time in a customer service position at Rabobank for 12 months.
He commenced work as a loading dock supervisor with Kmart in 2013. He was working 5 hours once a week. He was in that position for 7 years.
At the time of the subject accident he was working as a customer consultant with Luxury Escapes. He said he participated in a 7-day roster. He was taking calls from customers. He worked 8 hours a day on 4-5 days a week. He said prior to the accident he was working 4 days as he worked Saturdays and Sundays. He was also doing some of this work from home.
Soon after the subject accident he had travelled on a pre-planned holiday to North America. When he returned to work, he was counselled regarding low KPIs. He said he was then given the option of either resigning and taking a payout or being sacked. He decided on the former.
Mr Barzani is currently studying a Masters of Teaching, having returned to his studies in July 2022.
Personal History
Mr Barzani lives with his parents, brother and two sisters in a home in Green Valley. He said he helps out at home. He would stack the washing machine, wash dishes and do some vacuuming.
He is currently not working in paid employment. He last worked 3 July 2020, this being in the Kmart job. He said he has since been living off savings and loans from family. He is still in receipt of income protection payments through his Kmart superannuation fund.
Mr Barzani advised that he had departed for the US trip within days of the subject accident, and he had not returned to work in the interim.
When asked about the Facebook posts from the US, he described an extensive trip which had included New York, Las Vegas Cuba and Miami. He did not want to cancel the arrangements, as these had been planned for a long time. He and his friend had pe-booked a range of activities prior to arrival, including hover craft, boat, jet ski (which he said he had only sat on the vessel close to shore, while photos were taken, and he never reached speed). He maintained he had managed these activities as he was ‘high at the time’ on a combination of cannabis and endone (up to 7 tablets/day) These agents were not prescribed by a doctor but obtained through a friend. He said prior to this, he had not used any substances.
Prior to the subject accident he had two jobs. A full-time desk-based role with Luxury Escapes. And a job for one day a week with Kmart. He had been in the Luxury Escapes role for 2.5 to 3 yrs. He said that prior to leaving for the US his KPI’s (based on an allocation of 2 points for each phone call and one point for each email) were excellent at 98%. However, on returning to work after the trip, his scoring had deteriorated to 46%.
He attributed this to the fact that he was having difficulty sitting and standing, due to pain. He continued to attend work daily, despite the pain. He said he was constantly moving about, he had headset, and a height adjustable desk. He said that he was even lying down on the floor or on a couch in the rest area during breaks.
He said he could not access either the endone or the cannabis over a 6 week period following his return from his trip. He said, that whilst on holidays, and after his return, he was experiencing insomnia, palpitations, tremors and he could not go near a car.
He was later prescribed medication by the Workers Doctors practice, which had included Gabapentin and melatonin. He was finding this was not working, but his friend was able to help out again, and had provided him endone (which he had taken 3- 5 tablets a day for 3.5 to 4 months) and cannabis.
Because he had lost his job with Luxury Escapes, he had approached Kmart to start work again. Prior to the subject accident he had been working there five hours a day on one day a week for about 3- 4 years, and prior to that 2 – 4 days a week. He would do a 4 – 5-hour shift. He had dropped to one day a week because he had started the Luxury Escapes job. In the Kmart role, part of this time was spent supervising and delegating, but the other part of the job was assisting with the lifting of bulk items, such as picnic chairs, blankets, linen and bedding, pots and picnic tables.
He had resigned from this job prior to his trip. He had returned to work with Kmart three weeks after returning from overseas and he was working four days a week until the end of that year, when he reduced to one day a week. However, he said that after his return they had looked after him, and he was no longer required to do any manual work and was able to stretch and rest during day. He left Kmart in mid-2020
Following this he was not working. However, his brother was giving him some money to support himself. Mr Barzani completed his Teaching qualifications in mid-2023 and following this his accreditation.
At the start of the school term this year, he commenced casual primary school teaching in Busby, and as of this week of 26 February 2024 , he has been teaching days a week. He said he sits most of the day on his left buttock, due to the right hip pain and is able to use the smart board from his desk.
There was no work after the subject accident and prior to US
Currently he takes Fluoxetine 40mg in the morning, Melatonin 4mg at night, and Osteomol (paracetamol 665mg) three times a day. He continues regular stretches and exercises and still receives some advice and supervision from his friend the exercise physiologist.
History of the Subject Accident
Mr Barzani had just picked up his 1989 Honda Civic from a workshop. He said he bought the car as a ‘project’ two weeks previously. Due to the age of the vehicle, it had no air bags. He had entered a roundabout on North Liverpool Rd in Mount Pritchard when another vehicle collided with the left front of his car. He said his chair broke from the bolt.
He hit the right side of his head against the car window. He thinks he may have been knocked out for a short period, but remembered being conscious when the other driver, a young female, approached his car.
Police and ambulance had not attended the accident. Details were exchanged with the other driver. He was able to drive his car home, but he was only a few minutes away. He added that it was badly damaged and scraping on the road as he drove.
After arriving home, he contacted his insurer. He said the representative on the phone had said that his speech sounded slurred and that he should go and visit a doctor immediately. Therefore, without further delay he saw Dr Kim Ong at the Valley Plaza Medical Centre in Hinchinbrook. Dr Ong referred him to the hospital.
Dr Kim Ong records on 5 July 2018 the history of the subject accident, noting that

Mr Barzani had hit his right head on window and was momentarily dazed, but was subsequently able to push the car out of the way. There was pain over the right side of his head, his neck, right lower back, right shin and right middle toe. He had superficial abrasions. He was ‘referred to emergency department at hospital stat, advised not to drive.’
Mr Barzani attended Liverpool Hospital. The clinical notes from the hospital confirm that he had attended 5 July 2018, he was the seat belted driver at 30-40 kph. The impact was to the passenger side of his car. He had hit his head on the window, and there was momentary loss of consciousness. He had self-extricated and there was no pain at the time. He was then walking around all day but had later developed neck pain and stiffness and some right hip pain. He had apparently told them at the hospital that the hip pain was long-term pain, and only slightly different after the accident. He was also reporting that he felt a bit dizzy, and he was cold in lateral hip/buttock area. On examination, there was left lateral neck tenderness, but no midline C-spine tenderness, there was normal range of motion of right hip, he was walking well. He had declined x-ray of hip, and he was discharged home with head injury cautions and also warned to return if there was worsening flank pain or haematuria.
Mr Barzani had later come under the care of a second general practitioner, Dr Lim, at a different medical practice, Workers’ Doctors. Referral was made to physiotherapy, commencing 20 August 2018 and psychological therapy commencing November of the same year.
There had been a subsequent motor accident in 2020. He was a front seat passenger. He said this was a very minor accident as the car had only rolled into the back of them. Their vehicle was drivable. He said there was no aggravation of his physical symptoms but he did feel there was some temporary aggravation of his psychological symptoms.
Current Complaints
Mr Barzani volunteered that he was now ‘feeling like a newborn baby.’ He said his recovery is a consequence of his participation in gym training under the auspices of a neighbour who is a trainer. However, if he goes for a walk, there is still some discomfort felt over the right buttock/upper thigh, right groin and low back. But previously, after 10 minutes of walking, he was ‘like a cripple’ and then had to rest in bed for two days.
He still has some right-sided low back and right buttock pain, however, this is low grade insofar as he regards it as only an ‘annoyance.’ There is also some intermittent right groin discomfort.
The neck pain is much improved and there is no longer any radiation into the upper limbs.
Currently, there is right-sided headaches which can occur every few weeks and may even last for several days.
His right shoulder is now normal with full normal range of movement.
There is no upper back pain now.
Current Treatment
Mr Barzani visits general practitioner Dr Sidrak in Casula, last review three weeks ago.
He said that he has now been working with his physical trainer on a weekly basis for the last 18 months. He said he consulted neurosurgeon, Dr Ganeshwaran Shivapathasundram in Liverpool earlier last year. He had ordered an MRI scan spine, and this was performed 19 January 2023. He had also referred him for a cortisone injection. Mr Barzani said that he had already had multiple cortisone injections to his low back and right groin so was not keen to have any further injections.
He takes melatonin 2-4mg each evening, fluoxetine 20mg in the morning, pregabalin 25mg as required, meloxicam 15mg. He takes ibuprofen as required for headaches, and this was last taken a few days ago. He
Physical Examination
Mr Barzani had a stocky build, he was 178cm tall and weighed 95kg. He was pleasant and cooperative. He had a normal gait. He could walk on heels and toes. He could squat to three-quarters normal on flat feet, and on his toes he could squat fully. He could walk on heels and toes, but when walking on heels felt this aggravated right-sided low back pain.
On examination of the neck, there was no tenderness. There was full normal range of movement. There was no muscle spasm or guarding, and no asymmetry of movements.
On examination of the upper limbs, circumferential measurements were consistent with right hand dominance and there was no muscle wasting. There was normal reflexes, power and sensation bilaterally.
On examination of both shoulders there was no deformity, swelling or scarring. Active shoulder movements were as follows:

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	180 °	180 °
Extension	50 °	50 °
Internal Rotation	80 °	80 °
External Rotation	80 °	80 °
Abduction	180 °	180 °
Adduction	50 °	50 °

On examination of the upper back, there was no tenderness. There was full normal range of rotation. There was no muscle spasm or guarding, and no asymmetry of movements.
On examination of the lower back, there was tenderness across the low back and over the right sacroiliac joint. There was full normal range of flexion, extension, lateral flexion and rotation. There was some pain reported on full extension. There was no muscle spasm or guarding, and no asymmetry of movements.
Lower limb circumferential measurements were equal, therefore there was no muscle wasting There was normal reflexes, power and sensation bilaterally.
On examination of both hips, knees, ankles and feet there was normal range of movements bilaterally. There was tenderness over the anterior and lateral aspects of the right hip. Hip movements were as follows:

Hip movements Right Left

Flexion 110 ° 120 °

Internal Rotation 25 ° 40 °

External Rotation 30 ° 40 °

Abduction 40 ° 50 °

Adduction 20 ° 30 °
On examination of both knees there was no swelling or crepitus and no instability was demonstrated. Knee movements were as follows:

Knee movements

Active ROM Measured

RIGHT

Active ROM Measured
LEFT

Flexion

110 °

120 °

Extension 0 ° 0 °
INVESTIGATIONS
Bone scan with SPECT 4/9/20 showed no abnormal uptake in lumbar spine. Mild arthritic change in right knee joint.
Plain x-ray lumbar spine 4/9/20 showed ‘normal vertebral alignment with no vertebral compression fracture. Disc height is preserved. There are no pars defects. There is no spondylolisthesis. No spondylosis. I question whether there may be some erosions involving both sacroiliac joints with some sclerosis. Dedicated imaging of the joints with plain x-ray and optimally with MRI is suggested to exclude significant sacroiliitis.’
MRI scan lumbar spine 12/12/20 showed ‘Early right foraminal disc bulge at L5/S1, slightly posteriorly displacing the descending right S1 nerve root; there is no impingement. No other lumbar spine degeneration identified.’
MRI scan pelvis and right hip 28/11/18 showed inferior S/I joint changes.
MRI scan lumbar spine 15/10/18 showed no herniation or stenosis, minor fluid in right L4/5 facet joint.
MRI scan right hip 16/10/18 showed moderate articular cartilage loss and features of femoroacetabular impingement.
CT brain 3/4/19
MRI scan right hip 11/6/20
MRI scan spine 19/1/23
Cerebral perfusion scan 1/5/19 ‘There are multiple cerebral perfusion abnormalities as described, which in the clinical context may be due to prior trauma, although other aetiologies (e.g. vasculitic) are not entirely excluded.’
Mr Barzani is a 32-year-old man who was involved in the subject accident on
5 July 2018 when he sustained soft tissue injury to his neck, upper and low back and right shoulder, hip and knee.
Impairment
Head – soft tissue injury
The head injury was soft tissue with no recorded abnormalities in the Glasgow Coma Score, no traumatic brain imaging abnormalities and no post traumatic amnesia. The Motor Accident Guidelines criteria (section 6.164) were not satisfied, so the head injury is not assessable as causing permanent impairment. The soft tissue injury to the head has resolved.
Cervical [Cervicothoracic] spine
There were complaints of pain or symptoms, but without vertebral body compression or vertebral fracture. There were no clinical findings as detailed in Table 6.7, MAA Guidelines [1/4/23]. Thus in reference to MAA Guidelines the cervical spine injury would be assessed at DRE Impairment Category I, thus zero percent permanent WPI.
Lumbar [Lumbosacral] spine
There were complaints of pain or symptoms, but without vertebral body compression or vertebral fracture. There were no clinical findings as detailed in Table 6.7, MAA Guidelines [1/4/23]. Thus in reference to MAA Guidelines the lumbar spine injury would be assessed at DRE Impairment Category I, thus zero percent permanent WPI.
Thoracic [Thoracolumbar] spine
There were complaints of pain or symptoms, but without vertebral body compression or vertebral fracture. There were no clinical findings as detailed in Table 6.7, MAA Guidelines [1/4/23].Thus in reference to MAA Guidelines the thoracic spine injury would be assessed at DRE Impairment Category I, thus zero percent permanent WPI.
Right shoulder
There was 0% WPI has he has a normal range of motion.
Right hip
Right hip range of motion was reduced, so using Table 40, page 78 AMA4 Guides there was mild hip impairment which is assessed at 2% WPI. There was gait derangement and tenderness over the right trochanteric bursa. This could be assessed as trochanteric bursitis at Table 64, p 85, giving 3%WPI. Range of motion and gait derangement cannot be combined as per Table 6.5 MAA Guidelines, the higher WPI is adopted, so 3% WPI for right hip compared to 2% WPI assessed by the Medical Assessor.
Right knee
There was normal range of motion and no instability or crepitus. Therefor right knee is assessed at 0% WPI.”

The claimant was also assessed on documentation by Medical Assessor Hodgkinson regarding a traumatic brain injury (TBI). Her report follows:
“Dilzar Barzani was involved in a collision between 2 vehicles on 5 July 2018 – possible time 1400.
He reported that his head hit the side window during the accident and he may have had a very brief loss of consciousness as a result. To his GP it was described as “dazed”. The impact speed was considered to be 30-40 kph.
Following the collision, he exchanged details with the other driver and then drove home. He did not seek medical assistance until later in the afternoon. He presented to ED at Liverpool Hospital and was triaged at 1846.
GCS was 15/15. He gave a detailed account of the accident and time after the accident. The pain described focused on neck and right hip. He was discharged home for follow up by the GP. The main concern was a finding of haematuria.
He left for an overseas holiday later in July 2018. Insurer reports on social media presence – active in physical recreational activities
In diagnosing a significant head injury (Traumatic Brain Injury-TBI) as a result of an accident the period of disturbed memory is significant. On history this has been reported as being seconds or up to minutes. This can be classified at the most as a mild TBI. No brain imaging was thought to be required as he was fully oriented and GCS 15/15 on assessment in ED. No other symptoms of concussion were described.
None of the clinical findings at any examination over the next years indicated cognitive changes consistent with a TBI. Psychological distress, depression, anxiety, sleep disturbance were assessed by psychiatrists as due to his psychiatric status. Mental state screening (Folstein’s Mini mental state screen) was normal.
In addition he successfully continued his studies at the Western Sydney University, through 2018 and 2019.
Radiological imaging was performed in April 2019 – CT brain normal study
A SPECT scan performed in May 2019 indicated some abnormalities. These are not diagnostic of a TBI and not consistent with the head injury described. In the absence of clinical findings, history of a significant impact to the head or other supporting radiology other causes should be sought.
Below are extracts from the documents that support this.
Cerebral perfusion scan – Dr Ivan Ho Shon 1 May 2019 ‘...There are relatively well-circumscribed moderate cerebral perfusion abnormalities in the mesial and inferior aspects of both temporal lobes (slightly more severe on the right), orbital gyri of both frontal lobes (more extensive on the left, with extension to the inferolateral aspect of the left frontal lobe), mildly in the posterior parietal / parieto-occipital! regions bilaterally and small mid defects in the posterior frontal lobes bilaterally. Elsewhere there is mild heterogeneity of tracer uptake, but no other definite cerebral perfusion abnormalities are demonstrated’. He concluded, ‘There are multiple cerebral perfusion abnormalities as described, which in the clinical context may be due to prior trauma, although other aetiologies (e.g. vasculitic) are not entirely excluded...’
Ct Brain – 3 April 2019 - normal
Extract of master of teaching primary academic transcript:
In the Master of Teaching (Primary) Academic Transcript on 28 July 2020 it was noted:
2018 first half year session: Passed two out of two units. Second half year session: Passed two out of two units.
2019 first half year session – Passed three out of four units with three credits. 2019 second half year session: Passed three out of three units.
2020 autumn session – Passed one unit and withdrew from two units and one unit results were pending.
Applied to discontinue the course without penalty. Letters from Dr Khan – treating psychiatrist
Below is the interpretation by Dr Vickery
There was no apparent impact of the motor vehicle accident related injuries in relation to his university studies.
Conclusion
It is my opinion there is no requirement for treatment and that his current treatment is not reasonable or necessary.”
The Panel adopts the reports and findings of Medical Assessor Gibson and Medical Assessor Hodgkinson.
This review is with respect only to the impairment of the claimant’s earning capacity consequent on his injuries caused by the accident which occurred on 5 July 2018.

CAUSATION

The claimant was involved in a moderate speed accident on 5 July 2018. He was able to drive his car home. Subsequently, on the afternoon of the accident, he attended Liverpool Hospital Emergency Department.
In the accident the claimant was hit on the left side by another car entering a roundabout. The claimant apparently hit his head on the right side, suffering a haematuria and other physical injuries including to his cervical spine, thoracic spine, lumbar spine, right shoulder and right hip. On examination at hospital, the claimant had a GCS of 15.
The Panel has viewed photographs of the damage to both vehicles, indicating direct contact of the claimant’s left front panel of his car with the right front panel of the insured car.
The Panel is satisfied that the claimant could have suffered the injuries claimed by him and that the motor vehicle accident was reasonably responsible for the injuries suffered by him.
Shortly after the accident, the claimant left for a holiday which was planned before the accident took place.
Examination of the claimant has revealed a full range of movement of the injured body areas except for his right hip, as noted in the examination by Medical Assessor Gibson.
There is no information available to the Panel about the extent of any injuries suffered, or at all, by the claimant in his subsequent two further accidents. However, in any event, the claimant’s injuries, except for his right hip injury arising from the accident, are not significant.

CONCLUSION

The determination before the Panel goes to the extent of impairment of the claimant’s earning capacity caused by the accident.
At the time of the accident, the claimant had two jobs. His main employment was a full-time position working for a company as a customer relations officer. The claimant had been in this occupation for approximately two years prior to the accident.
The other form of occupation undertaken by the claimant at the time of the accident was that of a loading dock supervisor at Kmart for one day a week for five hours per day. The claimant had held this position for many years prior to the accident.
The Medical Assessor does appear to have limited his decision only to the office-based role of a customer relations officer. He said that the claimant had the capacity to undertake that type of work with reference to the physical injuries he had sustained. There was no reference to the work at Kmart and the ability to undertake that work or at all.
In the report obtained by the insurer from the Vocational Capacity Centre (VCC) of

28 August 2020, it was said;
“Mr Barzani returned from his overseas trip to Australia and resumed work, in his pre-injury job, at Luxury Escapes. A few weeks after his return his employer gave him notice of termination of his employment. Mr Barzani said that this was due to deterioration in his work performance, and he cited statistics in a reduction in the quality of his work from 93% to 46%; he attributed this to his symptoms.
He was apparently told that if he did not resign then his employment would be terminated, and so he resigned from work, effective on the 05.09.18.”
There is no attribution to the lower statistics to any physical difficulty arising from the accident. For the reasons noted above from Medical Assessor Hodgkinson, the Panel is not of the finding that the claimant has suffered a traumatic brain injury.
Upon cessation of employment as a customer relations officer, the claimant increased his work hours at Kmart. In this regard, the VCC report noted;
“According to the history Mr Barzani relayed at this interview, and it is understood that there may be some discrepancy in the account he provided to other assessors, when he lost his job at Luxury Escapes, he increased his working hours at K-mart and was then working 3-4 shifts per week, for five hours a day. He said that he needed to do this as he needed the money to support his family, which include his parents and sisters. He continued to work the increased hours at K-mart (up to 25 hours per week) until February of 2019, when he could no longer continue (due to increased symptoms).
During this time, he was also relying excessively on pain relief “medication to cope”. In February of 2019 he dropped his working hours, to one shift a week and this situation continued until June of 2020. At this time (June of 2020) Mr Barzani ceased work completely and indicated that this was again due to exacerbated symptoms.
This history of gradual deterioration in his symptoms and gradual reduction in his working hours as a result is somewhat inconsistent with his reported improvement in his symptoms of 50% for the neck and right shoulder and 10-20% for the lower back and right hip”
A further employment background/history is provided in the VCC report when it is said;
“Mr Barzani was also a university student at the time of the subject accident. He has qualifications in Business and Commerce with a Bachelor Degree awarded by the University of Western Sydney, as well as a Masters of International Business and Global Management. Prior to the subject accident he had worked in financial institutions, but opted to change the work environment, moving to the job at Luxury Escapes as it was financially more lucrative. In July of 2018 (the time of the accident in question) Mr Barzani was enrolled in a Masters of Primary School Education. He has not completed the course to date, indicating that last semester he was only enrolled in one subject. He is not enrolled in any subjects this semester and has deferred his study. This is, once again, due to his symptoms.
Nevertheless, Mr Barzani’s plan for the future is to eventually complete his course of study and he is desirous of working as a primary school teacher, in the future.”
This report was undertaken over three years ago. The assessment undertaken by the Panel occurred over five years post-accident. In that time, the claimant had recovered considerably following his initial injuries and complaints.
Dr Bodel for the claimant, said that he was not physically capable of work based on his presentation on 20 August 2020. Eight days later, the VCC report showed no major problem to work. The Medical Assessor, on 17 June 2020 found no impediment to the claimant working as a customer relations officer but did not consider work as a loading dock supervisor.
Dr Mitchell, for the insurer, considered that the claimant’s symptoms would have resolved in a three to six month period.
Medical Assessor Cameron considered that the claimant had no degree of impairment of earning capacity resulting from the accident.
Regarding the claimant’s work at Kmart as a loading dock supervisor, after he resigned from Luxury Escapes due to lower performance, he increased his work at Kmart from 5 hours once per week to 5 hours per day for 3-4 times per week. The claimant said that ultimately, he could not keep up this work and resigned however, surveillance of the claimant, by Quantum Corp dated 6 November 2018 showed the claimant to be undertaking normal day to day activities in an unrestricted manner although with the nature of his injuries, such activities would not perhaps be expected to be restricted to any degree. Observations of the claimant’s Facebook page, however, indicate that he was participating in water activities which would not be expected if the claimant was physically restricted to any degree. The claimant ceased working the increased hours at Kmart in June 2020, nearly two years post-accident and whilst still studying. The insurer submits that the surveillance observations and Facebook entries are not consistent with the claimant’s assertion that he is unable to perform activities and is unable to work in any capacity. Following the examination of the claimant by the Medical Assessors, the Panel agrees with this.
Section 3.16 of the Act states that an insurer can make a decision about the pre and post-accident earning capacity of an injured person at any time.
After the second entitlement period (after week 78), the injured person’s post-accident earning capacity is the amount the person has the capacity to earn in employment reasonably available to them, on the basis of their fitness for work in any such employment.
To determine a person’s fitness for work, cl 8(3) of Schedule 1 of the Act states that the following is to be taken into account:
·        the nature of the injury and the likely process of recovery;
·        treatment provided and rehabilitation undertaken and the potential for further treatment and rehabilitation;
·        the person’s training, skills and experience;
·        the age of the person, and
·        any medical certificate provided by the injured person as to the person’s fitness for work.
To determine the employment reasonably available to a person after the second entitlement period cl 4.58 of the Guidelines states that the following factors are to be considered:
·        the nature of the claimant’s fitness;
·        the claimant’s age, education, skills and work experience;
·        the claimant’s place of residence at the time of accident;
·        the certificate of fitness supplied by the claimant;
·        the provisions of any recovery plan for the claimant;
·        the length of time the claimant has been job seeking, and
·        any other relevant circumstances.
The claimant says that in accordance with cl 4.58.6 of the Guidelines, the insurer ought to consider the claimant's certificate of fitness in determining his earning capacity. The Panel has considered this and takes into account the various medical opinions cited above. The balance of that medical opinion including that of two Medical Assessor who examined the claimant before the Panel, is that his incapacity to work is limited.
Five years post-accident, the claimant is only relatively disabled by his hip injury. The Panel determines that in a sedentary role, that incapacity would not limit his ability to work, in light of his age, education, skills and work experience.
Following the accident the claimant voluntarily resigned from Luxury Escapes as a customer relations officer, due to a decrease in his performance. It has not been submitted to the Panel that this came about due to any accident related cause. The claimant then worked entirely at Kmart , while continuing his university studies.
After the claimant worked only at Kmart, he increased his hours of work. In 2018 he commenced studies of a Masters in Primary Education. In the second semester of 2018, which included the time the claimant had the subject accident, he passed two out of two units. In 2019 in the first half year semesterhe passed three out of four units with three credits. In the 2019 second half year session, he passed three out of three units.

From the documents submitted by the insurer, it can be seen that the claimant was undertaking studies at university but requested by email of 10 January 2019 a deferral when he said “due to my travels and work commitments I had to take about subjects over the course of two semesters in 2018. I intend to give a full commitment to my studies as of this year”. The insurer has noted in its submissions to the Panel that while the claimant mentioned travel and work commitments, he made no mention of the accident.
Dr Bertucen, for the claimant, said that the claimant “would be incapable of returning to work full-time as a consultant for Luxury Escapes (or a similar organisation) owing to the requirement for high speed decision making and liaising with clients face to face.” The Panel does not accept this conclusion in light of the assessment by Medical Assessor Hodgkinson who found that the claimant had suffered no brain injury and also in light of the claimant’s continuing university studies and results, post-accident.
The Panel is of the finding that the claimant’s degree of earning capacity was limited for a short period of time only, between 1-2 months. He has recovered from all injuries suffered in the accident other than his right hip injury and this would not be sufficient to limit his earning capacity. His physical water and other activities indicate a full recovery.
The determination of the degree of impairment of the earning capacity of the claimant that has resulted from the injury caused by the accident is based on the assessment by the Panel of the impact on the claimant’s functional restrictions and capacity to work. This is not an assessment of the injured person’s past or future earnings or wages.

DETERMINATION

The claimant does not have a degree of impairment of earning capacity that has resulted from the injury caused by the motor accident.

Hip movements	Right	Left
Flexion	110 °	120 °
Internal Rotation	25 °	40 °
External Rotation	30 °	40 °
Abduction	40 °	50 °
Adduction	20 °	30 °

[2024] NSWPICMP 244

19 April 2024