Cimen v AAI Limited t/as GIO

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Cimen v AAI Limited t/as GIO [2022] NSWPIC 482
Claimant:	Deniz Cimen
insurer:	AAI Limited trading as GIO
Member:	Susan McTegg
DATE OF DECISION:	2 September 2022
CATCHWORDS:	MOTOR ACCIDENTS - Damages; economic loss; consistency; exaggeration; acromioclavicular joint; neck; thoracic spine, lumbar spine; right knee; depressive condition; reliability claimant’s evidence; 28 years of age at date of accident; residual earning capacity; assessment of damages; Motor Accident Injuries Act 2017; motorbike accident; claimant age 28 at date of accident and 33 at date of assessment; truck driver; dislocation right acromioclavicular joint; injury to neck, thoracic spine, lumbar spine, right knee, psychological injury; claimant not returned to work; consistency of presentation; pain behaviour; feigning; exaggeration; whether any residual earning capacity; Held — claimant pain focused and pain avoidant; lack of consistency and exaggeration; claimant developed chronic pain condition with psychological overlay; damages assessed on basis unfit for work to date; unfit for work for next two years; thereafter fit for sedentary work for 20 hours per week until age 67 years; damages assessed in sum of $861,857.62.
determinations made:	1. On the issue of liability for the claim, the NRMA’s insured owed a duty of care to the claimant, breached that duty of care and the claimant sustained injury loss and damage as a result of that breach of duty. 2. Under sub-sections 7.36 (3) and 7.36 (4) of the Motor Accident Injuries Act 2017 (the MAI Act), I specify the amount of damages for this claim as $861,857.62 3. The amount of the claimant’s costs, taking into account the amount of damages assessed in respect of this claim, assessed in accordance with the MAI Act is $68,206.60 inclusive of GST.

Reasons for Decision

Issued under section 7.36(1) of the Motor Accident Injuries Act2017

INTRODUCTION

On 10 December 2017 Deniz Cimen (the claimant) was riding his Ducati motorcycle approaching the ferry crossing at Wisemans Ferry when the vehicle in front pulled off to the left and onto the verge. As the claimant’s motorcycle began to pass that vehicle, without warning it turned across the claimant’s path. The claimant was thrown to the other side of the road and landed on his right-side sustaining injury (the accident).
I am asked to assess damages pursuant to the provisions of the Motor Accident Injuries Act 2017 (the MAI Act) in respect of the injury sustained by the claimant.
AAI Limited trading as GIO (the insurer) is the relevant insurer with liability to pay any damages to the claimant under the MAI Act.
Mr Cimen alleges he sustained the following injuries in the accident:
·        dislocation of the right acromioclavicular (AC) joint;
·        injury to the neck;
·        injury to the thoracic spine;
·        injury to the lumbar spine;
·        injury to the right knee;
·        injury to the left knee, and
·        psychological injury.
The insurer’s position is that the only ongoing physical injury is in respect of the right shoulder.
The insurer admitted liability in a notice dated 4 December 2019.
The claim was listed for assessment on 24 August 2022. The claimant was represented by Mr John Catsanos of senior counsel instructed by Mr Philip Scroope of LHD Lawyers. The insurer was represented by Mr Marco Nesbeth of counsel instructed by Mr Paul Wholohan of McCabes, Lawyers.
The issues in dispute are the following:
(a)    the reliability of the claimant’s evidence;
(b)    the extent to which the accident has resulted in an impairment of the claimant’s earning capacity, and
(c)    the amount of the claimant’s pre-injury earnings.
I am asked to assess damages in respect of the following:
· past economic loss, and
· future economic loss.

TRANSITION OF EXISTING DISPUTES TO THE PERSONAL INJURY COMMISSION

The Personal Injury Commission (Commission) commenced operation on 1 March 2021. The former Dispute Resolution Service was abolished by cl 3 of Division 2 of Part 2 of Schedule 1 to the Personal Injury Commission Act2020, (the PIC Act). The PIC Act and Regulation establishing the Commission provide that a new decision-maker may determine pre-existing disputes in accordance with the previously applying legislation.
Clause 14B(4)(c) of Schedule 1 of the PIC Regulation 2020 provides that the provisions of any Act, statutory rule or other law that would have applied to determine the proceedings, had the PIC Act not been enacted, continue to apply.

THE EVIDENCE

The claimant’s evidence

The claimant provided a detailed statement dated 7 December 2020 and a supplementary statement dated 7 July 2022. He also provided oral testimony at the assessment conference.
Mr Cimen is now 33 years of age, and he was 28 years of age at the time of the accident.
Whilst Mr Cimen completed the Higher School Certificate, he conceded he was not the brightest student. On leaving school he worked as a concreter for about two years, as a bricklayer for six months. In 2012, 2013 and 2014 he worked in road traffic management. In the period 2012 – 2013 he also worked as a security officer with Southern Hemisphere Corporate Security.
Mr Cimen also helped his parents with their fast-food business. When questioned
Mr Cimen stated his duties included making kebabs, customer service, taking orders and money handling. He estimated he worked 15 hours per week in the kebab shop. As a result of COVID the kebab shop closed in about August or September 2021.
According to the clinical notes of Marketplace Mediclinic on 28 October 2013 the claimant reported a right shoulder injury when he was handcuffed by a police officer. On 30 October 2013, he reported he was having flashbacks, nightmares and was anxious and stressed. Whilst Mr Cimen recalled the incident when he was handcuffed, he was not able to recall sustaining injury. When questioned the claimant agreed after leaving school he made some poor choices, hung out with “some idiots” but soon pulled away and got his life on track.
On 21 May 2014 the clinical records of Marketplace Mediclinic show the claimant’s attendance on psychologist Anthony Sciberras where he discussed relationship issues, anxiety and his experience of “panic attacks”. Dr Amir referred to some psychological problems during consultations on 4 September 2014,
26 September 2014 and 4 December 2014.
In his evidence Mr Cimen stated he attended two to three counselling sessions and then moved on with no ongoing emotional effects although he could not specifically recall experiencing panic attacks.
In 2014 Mr Cimen was diagnosed with a bicuspid aortic valve with mild aortic regurgitation and came under the care of Dr Cherry, cardiologist.
In 2014 the claimant and his parents purchased the farm where he currently lives with his parents. In 2015 the claimant assisted with improvements on the property including the construction of the driveway.
In either 2015 or 2016 the claimant registered the business name Kolo Recycling. His evidence was that at that time he contemplated buying a truck and commencing his own business. He stated he pulled out at the last second and was happy he did so because things did not go well with that company. The claimant said that experience “threw him off” and he decided to hold off for a while to make sure it was the right thing to do.
In early 2017 the claimant worked as a casual employee with Buttigieg Excavations Pty Ltd (Buttigieg) driving a water cart and tipper on site, and also driving a bobcat and excavator. Mr Cimen states he worked on average five days a week and also undertook labouring work including shovelling, carrying and moving materials on site. He states he was earning approximately $1,000 net per week. This is verified by the claimant’s pay slips. He states he worked with Buttigieg on several large sites including at Edmondson Park and Middleton Grange over a two-to-three-month period.
In March 2017 the claimant had stomach surgery, namely gastric sleeve surgery and hernia repair. He was off work for about one month before returning to work with Mick Buttigieg.
The claimant states before the accident he was well and happy, he enjoyed working, going to the gym, playing sport, hiking and bushwalking.
In July 2017 the claimant obtained work with Steve Bo, the owner of Steve’s Eggs & Tipper Pty Ltd (Steve’s Eggs), he says earning on average $530 net per week. He says he wanted to gain more experience driving tippers with a view to getting into this work himself. Whilst working on a Fulton & Hogan project the claimant was required to cart hot asphalt to the site. The work was physical as he was also required to climb into the back of the truck, dig out the residue asphalt and use a shovel to clean out the back of the truck.
Whilst working for Steve’s Eggs the claimant was continuing to assist his parents in their kebab shop including on weekends. He states he also helped with maintenance of the 45-acre family farm and house, driving the excavator to mow the lawns and other yard work.
Shortly before the accident Mr Cimen agreed to purchase a Kenworth T350 10-wheel tipper truck from Charlie Bazouni of Meridian Industries Pty Ltd (Meridian) for $140,000. Mr Bazouni offered the claimant full time subcontracting work with Meridian commencing after he purchased the truck. He paid a $15,000 cash deposit on
29 November 2017. Mr Cimen stated his parents were going to assist him with the funds to purchase the truck and he was excited about the possibility of owning his own truck. Following the accident, he was unable to complete the sale and he forfeited the $15,000 deposit.
The claimant holds the following licences and qualifications:
·        Certificate II in Security Operations;
·        White Card;
·        Bobcat Operators licence;
·        Excavator Operators licence, and
·        HR truck licence.
Following the accident on 10 December 2017 the claimant says he was in and out of consciousness and was taken to Hornsby Hospital by the insured driver. He was sent home with a sling on his right shoulder. He consulted his general practitioner (GP) and was referred to Dr Dave who some months later operated on his right shoulder.
Mr Cimen states following the surgery he had physiotherapy but continued to have trouble moving his shoulder. He subsequently underwent surgery to remove the plate and screws but with little improvement in the pain and restriction of movement of his right shoulder.
Mr Cimen was referred to a pain clinic at Liverpool Hospital, but he was found mentally unfit to commence the programme and was then referred to Westmead Hospital to undergo an 11-week programme addressing his psychological condition. He commenced treatment before the COVID lockdown with Dr Katie Dawson and following the lockdown resumed treatment. Mr Cimen stated he attended 10 or more sessions.
In his recent statement Mr Cimen stated he continues to suffer pain and discomfort in the right side of his neck, right shoulder, mid back, right elbow and upper right arm, although most of the pain is in the right shoulder. He also described right knee pain which is exacerbated by kneeling or going up and down stairs.
Mr Cimen stated following the accident he lost his relationship with his then partner but subsequently entered a further relationship which resulted in the birth of a daughter. He stated the relationship failed due to his mood and he now sees his two-year-old daughter at his parent’s home several times a week.
Mr Cimen continues to take Panadeine Forte and Nurofen for pain and he takes Valium, Valdoxan, Effexor and Seroquel for his psychological condition.
Mr Cimen stated his mental health remains problematic, he does not sleep, and he suffers anxiety and panic attacks. When asked why he had not worked in his parents’ business since the accident Mr Cimen stated he had social anxiety, did not like to go out in public and did not believe he could handle money. Mr Cimen stated he could not think of any work he could do.
Mr Cimen stated his treatment with Dr Singh psychiatrist was interrupted by the pandemic, but he resumed treatment at the start of this year. He stated Dr Singh has recommended an inpatient admission so that he can change the claimant’s medication. He is also seeing Lucy Kenny psychologist every two to three weeks.

Statement of Chabal Bazouni

Mr Chabal (Charlie) Bazouni provided a statement dated 9 December 2020.
Mr Bazouni is the managing director of Meridian, a company operating a cartage business. Attached to his statement is a Tax Invoice addressed to Kolo Recycling evidencing the proposed truck purchase and the payment of the cash deposit.
Mr Bazouni states in addition to trucks owned and operated by Meridian the company also engages subcontractors who have their own trucks for haulage work. He states there is a lot of cartage work available in Western Sydney and had the claimant gone ahead with the purchase he would have offered him contract work on a full-time basis at the rate of $125 per hour. He stated the hours worked are long, the trucks being generally required for 10 to 12 hours each day. He confirmed the claimant forfeited his deposit when he did not proceed with the purchase of the truck.

Application for personal injury benefits

Whilst the claimant made no complaint to his GP of injury to any body part other than his right shoulder until 7 February 2019 it is worth noting that in the Application for personal injury benefits completed by the claimant on 21 December 2017, he described his injuries as “right shoulder, neck, upper back, low back, left knee, left leg, shock, abrasion to hands, right arm”.

Post-accident medical history

Mr Cimen attended Hornsby Hospital where a subluxation of the right AC joint was diagnosed on X-ray.
Mr Cimen consulted Dr Amarasinghe on 11 December 2017 in respect of right shoulder pain and tenderness. He prescribed Endone.
An X-ray on 13 December 2017 revealed a dislocation of the right AC joint. Mr Cimen was referred to Dr Viswanathan who he saw at the beginning of January. He referred the claimant to Dr Chandra Dave.
On 5 January 2018 Dr Dr Amarasinghe not only noted shoulder pain but recorded
Mr Cimen was feeling depressed, sad, not interested and could not go out of the house.
On 18 January 2018 Dr Dewan noted that the claimant’s pain was interfering with his daily living activities, social life and sleep and the claimant felt worried and mildly depressed.
On 7 February 2018 Dr Jamil reported Mr Cimen had generalised muscle aches and pain since the accident and on 28 February 2018 he reported complaints of neck, upper and lower back pain, stiffness and numbness of legs and pain in both knees.
On 27 March 2018 Dr Jamil reported complaints of pain all over his body including neck, upper and lower back and right shoulder effecting his sleep. He reported the claimant was unable to leave the house and spent most of the day lying down in bed.
The claimant has continued to see his GP for management complaining variously of right shoulder pain, neck pain, right knee pain, difficulties with sleeping and psychological symptoms. He has attended physiotherapy, undergone psychological counselling and been prescribed medications including Panadeine Forte, Cymbalta, Effexor and Lyrica.
The claimant has been certified unfit for work since the accident. His recent medical certificates provide the following certification as to his capacity for activities:
(a)    lifting/carrying capacity restricted;
(b)    sitting tolerance limited to 30 minutes;
(c)    standing tolerance limited to 30 minutes;
(d)    pushing/pulling ability restricted;
(e)    bending/twisting/squatting ability restricted, and
(f)    driving ability limited to one hour at a time, then to rest.

Reports of Dr Dave, orthopaedic surgeon

Mr Cimen saw Dr Dave on 17 January 2018. He diagnosed an AC joint Grade III injury and proposed a reconstruction of the AC joint which he indicated would be followed by four weeks in a sling followed by four to six weeks of mobilization. Dr Dave indicated it would interfere with the claimant’s work activities and the plate may need to be removed.
In a report dated 20 February 2020 Dr Dave noted the claimant had also complained he had neck, lower back and left knee pain due to the accident.
On 18 April 2018 Dr Dave reported the surgery had gone well.
On 31 May 2018 Dr Dave reported the claimant’s progress had been slow, he was very sensitive to pain and could only lift his arm up to about 30º with forward flexion. He considered the claimant was getting a frozen shoulder/adhesive capsulitis. He also reported the claimant had sustained a direct blow to the right knee patella and had chondral damage behind the patellofemoral area. He also reported full thickness fissuring of the articular surfaces which he suggested be treated with a quadriceps strengthening program.
On 10 September 2018 the claimant had the plate removed with manipulation under anaesthetic. On 31 October 2018 Dr Dave reported the shoulder looked well aligned but reported he had a fair bit of pain to which he was very sensitive. He said he anticipated the claimant should go back to light duties in about three weeks.

Reports of Dr Singh, psychiatrist

On 28 August 2018 the claimant saw Dr Rajneesh Singh, psychiatrist. The claimant reported his life turned upside down following the accident. He reported persistent lowered mood, marked snappiness with significant levels of amotivation and social withdrawal. The claimant described being confined at home together with a relationship breakup had contributed to a reduction in his self-esteem. Dr Singh diagnosed a major depressive disorder with anxiety symptoms with a differential diagnosis of an adjustment disorder with mixed anxiety depressive symptoms.
Dr Singh proposed an increase in the dosage of Effexor 75 given Mr Cimen had indicated some improvement. He concluded Mr Cimen was unfit for any form of employment.
In a letter dated 25 September 2018, Dr Singh notes an improvement in depressive symptoms with the prescribed medication.
On 26 March 2019 Dr Singh reported ongoing depressive symptoms, low mood, poor motivation and persistent sleep disturbance leading to significant mental and physical exhaustion during the day.
On 25 June 2019 Dr Singh reported the claimant continued to struggle with chronic pain from his shoulder injury and ongoing depressive cognitions of frustration, helplessness and worthlessness.
On 8 October 2019 Dr Singh noted Mr Cimen reported he had been unable to contain his emotions around rage and intense frustration. The claimant acknowledged difficulties in his relationship with his parents and brother and increased social withdrawal. Dr Singh suggested a three-week inpatient admission to complete an intensive programme on mood and anxiety disorder and also consider the option of transcranial magnetic stimulation (TMS).
On 29 June 2020 Dr Singh reviewed Mr Cimen and reported little change in his mental state. Mr Cimen described intense panic attacks involving body shakes, palpitations, a choking sensation as well as a sense of having a heart attack. Dr Singh reported the claimant had been referred to an 11-week outpatient programme for mood and anxiety disorder at the Traumatic Stress Clinic at Westmead Hospital and had attended some sessions prior to the pandemic. Dr Singh again recommended a trial with TMS in the event of a future non-response to treatment.
Dr Singh reviewed Mr Cimen on 14 December 2020 when he referred to upheavals related to panic attacks but noted Mr Cimen had gained some traction in using strategies learnt from recent intensive psychological interventions.
On 1 March 2020 Dr Singh reported no significant change in the claimant’s mental state, but reported he was responding well to his medication regime and benefiting from the one-to-one psychological interventions. He noted the chronic pain issues have continued.

The most recent report is dated 1 June 2021 when Dr Singh reported the claimant continued to experience “ongoing mixed anxiety depressive symptoms laced with symptoms of enduring low mood, amotivation, negative ruminations as well as finding himself quite mentally and physically exhausted most times of the day”. Dr Singh again discussed with Mr Cimen the possibility of an inpatient admission to a mental health clinic.

The claimant’s medico-legal evidence

Dr Drew Dixon, orthopaedic specialist

Dr Dixon assessed the claimant at the request of his lawyers on 15 April 2019 and provided a report dated 17 April 2019. He considered the claimant’s presentation to be consistent. Dr Dixon reported tenderness of the AC joint with synovial swelling, tenderness in the biceps groove and of the posterolateral deltoid and right trapezius muscle. He noted 1 cm of wasting of the right upper arm.
Dr Dixon summarised the radiological investigations as follows:
“His investigations include an x-ray of his right shoulder and clavicle on l3 December 2017 which showed a grade 3 dislocation of the right AC joint. There were no fractures.
Post-operative x-ray of the right shoulder on 13 August 2018 showed internal fixation of the AC joint by means of plate and multiple screws The position appeared satisfactory and the plate and screws remain in good position. This hardware has been removed.
MR1 of the right knee on 12 March 2018 showed no meniscal or ligament abnormality but there was full thickness fissuring of the patella articular cartilage.
MRI of the left knee on 15 March 2018 showed Osgood Schlatter' s disease with small posterior capsular ganglion. These appeared to be old conditions and he was not complaining of the left knee today.
MRI of the cervical spine (multi-positional) on l9 March 2018 showed no fracture and there was minimal synopsis on the right C3/4 and a central disc herniation at T2/3 which just contacted the cord with 1mm of anterolisthesis at this level.
MRI of the thoracic spine on 20 March 2018 showed no fracture. There were disc herniations at T6/7, T7/8 and T8/9 without canal or foraminal stenosis.
MRI of the lumbosacral spine on 21 March 2018 showed no fracture or disc herniation but there was articulation of the right L5 transverse process with the sacrum.”
Dr Dixon provided the following diagnosis:
(a)    repaired dislocation of the AC joint;
(b)    residual de-pigmented scarring at the operative site;
(c)    post traumatic stiffness of the right shoulder with biceps tendonitis and AC arthralgia clinically with deltoid and trapezial muscle pain and shoulder girdle weakness;
(d)    post traumatic stiffness of the neck with right trapezial muscle pain;
(e)    thoracic back pain and stiffness on trunk rotation with interscapular pain and disc herniation at T6/7, T7/8 and T8/9 without canal or foraminal stenosis, and
(f)    injury to the right knee with post traumatic retropatellar crepitus with chondromalacia patellae.
Dr Dixon found a poor prognosis for returning to work at that time due to marked pain and stiffness in the right shoulder which meant he would be unable to drive a truck, load or unload the truck and would have difficulty with lifting and carrying and with driving.

Dr Andrew Porteous, occupational physician

Dr Porteous assessed the claimant at the request of his lawyer and provided a report dated 11 June 2020. He reported Mr Cimen had chronic pain in the neck, right shoulder and thoracic spine since the accident. He also had intermittent lumbar and left knee pain. He reported the claimant was referred to the Liverpool Pain Clinic for his ongoing chronic pain, but it was recognised he should initially undertake a mental health course at the Mental Health Unit at Westmead Hospital.
On examination of both shoulders Dr Porteous reported as follows:
“He had full left shoulder range of motion. Today he had 180º flexion and abduction. He had restricted right shoulder range of motion with 60º flexion (8%) 30º of extension (1%), 50º of abduction (6%), 0º of adduction today (2%), 70º of internal rotation (1%), and 10º of external rotation (2%; 20% UEI, Figure 38, 41, and 44). Today, he had slight swelling and deformity in the right AC joint. Visually, there appeared to be mild wasting in the right shoulder girdle. He reported tenderness over the right AC joint.”
Dr Porteous diagnosed musculoligamentous soft tissue sprain injuries in the cervical spine, right shoulder, thoracic spine and in the right knee with aggravation of pre-existing right knee patellar chondral degeneration. He stated there was also plausibly soft tissue strain of the lumbar spine and left knee.
Dr Porteous provided the following opinion as to capacity for employment:
“Mr Cimen is restricted from using the right arm for repeated activity for lifting or carrying or pushing or pulling or stretching or reaching up. He holds his arm in a protective position or in a sweatshirt front anterior pocket on his shirt. He is restricted from sustained non-neutral neck position. He is restricted from kneeling or crouching or frequent or constant walking up and down steps or slopes. He is restricted from constant or prolonged standing or walking. He is restricted for heavy lifting, pushing and pulling with the right arm.”
Dr Porteous noted the claimant’s substantially reduced capacity for work was more than likely compounded by his psychiatric conditions. He found the claimant would not be able to compete with ‘able bodied’ persons for jobs.
Dr Porteous reviewed the claimant by video conference on 9 November 2021 and provided a report dated 18 November 2021. Dr Porteous reported a marked deterioration in the claimant’s mental health condition and noted his psychiatrist recommended an inpatient admission. His opinion remained unchanged. He found the claimant’s substantially reduced capacity for work was compounded by his psychiatric conditions.
Dr Porteous provided a supplementary report dated 27 June 2022 following a review of the report of Dr Keller, Dr Porteous reported he and Dr Keller agreed as to the acute right shoulder AC joint subluxation, the surgery, that the claimant had spinal strain injuries and he reported ongoing symptoms, reduced capacity and a possible need for restrictions. However, Dr Porteous disagreed with Dr Keller that other than time off work following each surgery Mr Cimen had recovered capacity to work full time hours. Dr Porteous was of the view the claimant was and continued to be incapacitated for his pre-injury work and unable to compete in the open labour market.
Dr Porteous reported the claimant’s psychological injuries appeared to cause significant ongoing reduction in capacity. He also had regard to the national driver medical standards “Assessing Fitness to Drive” and agreed Mr Cimen did not and was unlikely to reach in the foreseeable future the level of fitness required to hold or operate a commercial truck licence.

Dr Zbigniew Poplawski, orthopaedic surgeon

Dr Poplawski assessed the claimant at the request of his lawyers on 8 December 2021 by video conference. He reported the claimant had difficulty with sleep, with sitting for more than 10 to 15 minutes and with standing for more than two to three minutes. He noted Mr Cimen can walk 30 to 40 m but cannot manage stairs or slopes. He avoided bending, lifting, pushing and pulling, he had difficulty removing and replacing shoes, socks, trousers and upper garments and difficulty with toileting and showering. He could only drive for 20 to 30 minutes.
Dr Poplawski reported the claimant had pain in his neck radiating to the right shoulder and down the posterior aspect of the right upper arm associated with paraesthesia in the ring and little fingers of the hand. He also described marked restriction of range of motion in the shoulder. He noted continued discomfort/pain in the mid thoracic area and intermittent low back pain, aggravated by standing, walking and movement. The claimant also reported pain over the anterior aspect of the right knee. He reported his neck pain had settled.
Dr Poplawski reported prior to the accident Mr Cimen helped with food preparation, cooking and cleaning and was responsible for lawn mowing and gardening. He also played soccer, attended the gym most days, and was involved in martial arts and in hiking.
He provided the following opinion as to diagnosis:
(a)    grade 3 dislocation, right AC joint requiring internal fixation;
(b)    adhesive capsulitis of the right shoulder with significant loss of motion;
(c)    post-traumatic stiffness of the cervical spine with non-verifiable right sided radiculopathy;
(d)    post-traumatic thoracic back pain as a result of herniation of the T6/7, T7/8 and T8/9 discs;
(e)    low back pain;
(f)    post-traumatic chondromalacia patellae, right knee, and
(g)    chronic post-traumatic stress disorder and major depressive disorder.
Dr Poplawski found the claimant was totally unable to compete for any form of employment on the open labour market. He also noted the claimant’s psychiatric condition limited him considerably.

Dr Jeff Bertucen, psychiatrist

Dr Bertucen assessed Mr Cimen and provided a report dated 6 June 2019. Whilst he reported Mr Cimen lived with his parents and younger brother he also reported he had been in an on-off relationship with his then partner Seren over the last four years.
Dr Bertucen also reported at the time of the accident Mr Cimen was working 15 to 20 hours per week at the family take away and was also engaged in truck driving.
Dr Bertucen reported within weeks of the accident Mr Cimen was experiencing a range of distressing symptoms including nightmares, re-experiencing phenomena, delayed sleep, fear of riding motorcycles, avoidance of the accident site and intrusive distressing recollections of the accident. Dr Bertucen reported Mr Cimen described feelings of despair, marked social withdrawal from friends and family, low mood, reduced libido, and occasional panic attacks.
Dr Bertucen made the diagnoses of post-traumatic stress disorder and a comorbid major depressive disorder causally related to the accident. He opined a WPI of 22%.

Prudence Rehab

Alana Di Martino of Prudence Rehab undertook a functional assessment and provided a report dated 24 September 2020. She reported Mr Cimen said he generally does not leave home or socialise with his family who reside in the home. He reported spending his time watching television and sleeping with little motivation to change his daily activities.
Ms Martino reported pain focused/pain avoidant behaviours throughout the assessment. He was unable to attempt or complete a number of tasks and guarded his right arm and shoulder during the assessment. He also appeared highly anxious and irritable.
Ms Martino concluded Mr Cimen did not have a current work capacity having regard to the following factors:
· psychological barriers impeding recovery of physical symptoms, and
· fear avoidance/pain focused type behaviour.

The insurer’s medico-legal evidence

Dr Nigel Marsh, occupational physician

Dr Marsh assessed the claimant at the request of the insurer and issued a report dated 19 February 2020. He reported current symptoms were continuing pain down the right side of the neck extending over the shoulder as far as the elbow. He complained of pain extending down the thoracic spine into the lumbar spine as well as pain in the right knee. The pain was described as constant, he had problems sleeping and could only drive very short distances.
Before the accident the claimant said he was extremely active, attending the gym, playing soccer, rugby and engaged in other sporting pursuits. He was no longer able to do any exercise.
Dr Marsh noted Mr Cimen was pain focused and exhibited features of exaggerated pain behaviour. He concluded his current presentation was indicative of a marked secondary chronic pain syndrome which was disproportionate to the injuries sustained.
Dr Marsh found the claimant had sustained a musculoligamentous strain to the neck, mid and lower back regions. He found no indication of radiculopathy. He noted a grade III right AC dislocation treated by open reduction and internal fixation. He also noted a contusion to the right knee.
Dr Marsh reported:
“Mr Cimen exhibited features of exaggerated pain behaviour and increased pain focus. There was gross restriction in movement of the right shoulder. There was also restriction in movement of all spinal regions and the right knee. There was no clinical evidence of radiculopathy or of any pathology involving the right knee, however, examination of the latter was impeded by the marked pain response. There was also a significant surgical scar over the anterior aspect of the right shoulder.”
Noting the right frozen shoulder was diagnosed a year earlier Dr Marsh concluded it would generally be two years or so before such a condition resolved or stabilised.
Dr Marsh concluded the claimant presented with marked psychological issues with a secondary chronic pain syndrome. He did not consider Mr Cimen would be able to resume his pre-injury employment because of his chronic secondary pain issues. He considered there would be significant improvement following intensive pain management.

Dr Andrew Keller, occupational physician

Dr Keller assessed the claimant at the request of the insurer and provided a report dated 3 May 2022.
Dr Keller reported the claimant spends 90% of his time lying in bed watching television. He goes to the shops once or twice a week, he does not go out to socialise and has no sports or hobbies.
Dr Keller diagnosed:
“Probable acute right acromioclavicular joint grade 3 dislocation with surgical repair, inconsistent restriction of motion of the right shoulder.
Reported pain in the cervical, thoracic, and lumbar spine without evidence of asymmetry or radiculopathy, inconsistent weakness in the right ankle, no investigative support for discal nerve injuries.”
Dr Keller did not dispute the claimant sustained an acute right shoulder AC joint subluxation or grade 3 tear but considered he only suffered temporary strains to the spine without evidence of lasting physical injuries to the cervical, thoracic or lumbar spine.
He concluded Mr Cimen had recovered the capacity to work full-time hours, subject to a heavy lifting restriction in the right shoulder, other than a period of time after the accident, three months after the first operation and three weeks after the second operation.
Dr Keller concluded the claimant’s functional use of the right arm was more than reported as he did not find any measurable wasting after five years of minimal reported arm use.

Vocational Capacity Centre (VCC)

O J Burchett undertook a vocational assessment on 3 March 2020. He reported the possibility that the claimant was depressed and observed pain behaviour through complaints of pain and fatigue. He noticed the claimant fidgeting whilst seated and stood up at variable intervals. He also reported Mr Cimen held his right arm against his side or rested it in his lap and did not use his right dominant arm except to write.
Ms Stewart undertook a functional assessment. She reported the upper arms measured 39.5 cm on the right and 38 cm on the left, forearms 32.5 cm on the right and 32 cm on the left as expected given his right sided dominance but not consistent with reports of not using the right arm for any functional activity for two years.
She reported the claimant self-limited his performance in most tests and noted that the grip strength demonstrated with the right hand was so poor as to be inconsistent with a functional hand, despite no injury to the hand. She reported his performance was affected by pain behaviour and resultant exaggeration.

Dr George, psychiatrist

Dr George assessed the claimant for the insurer and provided a report dated
18 February 2020.
According to Dr George, the diagnosis on self-reported symptoms was that of a chronic post-traumatic stress disorder in association with a persistent depressive disorder. Dr George referred to a report of Alma Muratovic of Camden Clinical Psychology, dated 14 August 2018, that stated, inter alia, that Mr Cimen’s presentation in sessions was inconsistent with his reports of how he was feeling. He was observed to be “extremely talkative and able to laugh and giggle”, despite scoring extremely severely for depression, anxiety and stress. The psychologist found that Mr Cimen was dismissing a lot of the treatment strategies and was resistant to change.
Dr George recommended forensic psychological testing to validate the claimant’s subjective report.
Dr George reviewed the claimant on 21 June 2022. He concluded Mr Cimen was an inconsistent historian and having regard to the results of Dr McMahon’s testing he was not prepared to diagnose the claimant with an ongoing disorder. He found from a psychiatric point of view there was no reason why Mr Cimen could not participate in employment.

Dr John McMahon, clinical psychologist

Dr McMahon, clinical psychologist assessed the claimant on 9 September 2020. On examination Dr McMahon reported Mr Cimen was “brooding, mildly agitated and there were times where his speech seemed pressured, and he lost the bounds of the question put to him”. He noted mild psychomotor agitation.
Mr Cimen performed poorly on the Test of Memory Malingering, with performance being below chance on the first trial. According to Dr McMahon, “in order to perform in the below chance range a person has to remember the target and report the foil more often than chance predicts, so evidencing efforts to appear overly symptomatic”.
The Trauma Symptom Inventory Test is intended for use in the evaluation of acute and chronic traumatic symptomatology. Whilst it contains validity scales and good reliability it has only moderate ability to identify feigning spectrum behaviour. Dr McMahon reported Mr Cimen appeared to engage in a pattern of over-endorsement of symptoms.
The primary finding of Dr McMahon was feigning spectrum behaviour based on the results of the Test of Memory Malingering, although Dr McMahon also referred to the opinions expressed by Dr George, Dr Marsh and Dr Singh. He also noted the claimant had undergone a significant course of appropriate treatment with no response. As a result, he concluded he was precluded from making an accident-related diagnosis.

Certificates of Medical Assessors

Medical Assessor Clive Kenna

Medical Assessor Kenna assessed the claimant and issued a certificate dated
2 June 2021.
Assessor Kenna noted the main complaints pertained to the right shoulder, although Mr Cimen also experienced some interscapular symptoms and cervical pain. He complained about his lower back but without radiation into either leg. He also complained the right knee was symptomatic, he could not kneel on it, he could only walk about 100 m and he found steps difficult.
Assessor Kenna reported inconsistences on examination. On inspection of the neck, he found range of movement was uniformly restricted by 30% but there was no abnormality on neurological tests in relation to reflexes, muscle power and dural tension tests.
Assessor Kenna found a full range of movement of the thoracic spine and did not observe any abnormalities on examination.
In respect of the lumbar spine, he found no muscle guarding or spasm present, a full range of motion and no asymmetry. He did not observe neurological deficit in either lower limb and noted any distal symptoms did not follow the distribution of any specific nerve root. He found no indication of a non-verifiable radicular complaint.
In relation to the right upper arm Assessor Kenna noted there was no evidence of disuse, as would be expected given the history. Assessor Kenna concluded range of movement would be an unreliable indicator with regard to impairment assessment due to the lack of consistency. Mr Cimen said he was limited by pain but Assessor Kenna noted vast inconsistencies between not only his own assessments but those noted in other examinations. He noted the right shoulder joint AC joint had been repaired. Assessor Kenna found excellent muscle build over the right upper quadrant, and the claimant’s overall presentation belied the limited level of mobility he was prepared to demonstrate. He noted the joint was stable and assessed a 5% WPI for impairment of the right shoulder and 1% WPI for the noticeable 9cm scar over the AC joint.

Other than the injury to the right shoulder which required operative repair Assessor Kenna was unable to confirm the presence of any ongoing injures specifically relating to the accident. He reported the claimant’s condition had morphed into a chronic pain-type syndrome with potential psychological sequalae.
Assessor Kenna found the following injuries were caused by the accident:
·        cervical spine - soft tissue injury;
·        thoracic spine - soft tissue injury;
·        lumbar spine - soft tissue injury;
·        right shoulder dislocation and surgical repair of right shoulder A/C;
·        scarring - right shoulder;
·        right knee - soft tissue injury, and
·        left knee - soft tissue injury.

Medical Assessor Doron Samuell

Medical Assessor Samuell assessed the claimant on 28 July 2021 and issued a certificate dated 6 August 2021.
Assessor Samuell reported Mr Cimen told him he saw a psychologist when he was 18 because he was “hanging around with some wrong people” and he was friends with a man who was shot. Dr Samuell said Mr Cimen was angry and then apologised when he pointed out that Dr George had reported the death of his friend was due to heart disease.
Assessor Samuell also asked about past problems with the law and reported the claimant said he had “never been arrested or jailed”. He then asked the claimant about the reference to being handcuffed. He said the claimant stated that incident had occurred around 10 years earlier when he had been speeding. When Dr Samuell suggested this was an unusual response to speeding the claimant conceded he was accused of running away from the police at the time. He said he was fined and lost his licence.
Assessor Samuell referred to inconsistencies in the physical reports, strong evidence from Dr McMahon and inconsistences both he and Dr George identified which he considered were sufficiently severe to undermine a reliable psychiatric diagnosis. He concluded a psychiatric diagnosis could not be made.

THE RELIABILITY OF THE CLAIMANT’S EVIDENCE

Questions have been raised about the consistency of the claimant’s presentation. Unfortunately, there is a very clear dichotomy between the evidence of the claimant’s treating practitioners, the medico-legal doctors engaged by the claimant and the medico-legal evidence presented by the insurer.
The insurer does not dispute the claimant sustained injury to the right shoulder or that there was a need for surgery. The insurer relies upon the opinion of Dr Marsh to dispute the nature and extent of the remaining alleged injuries. However, I note
Dr Marsh did not dispute that at the time of his examination the claimant suffered from a frozen shoulder and further, he accepted Mr Cimen was not fit for his pre-injury employment due to his marked psychological issues with a secondary chronic pain syndrome.
When questioned about his assertion to Dr Keller that he remained in bed for 90% of the time the claimant reiterated that he spent most of the time in bed or in his room.
When Mr Cimen was asked about the assessment he underwent with Gillian Stewart who recorded that his right-hand grip was so poor it suggested he had no functional use of that hand Mr Cimen said he still suffered from a frozen shoulder at that time.
During the assessment Mr Cimen was challenged about his assertion that his sitting limit was 20 minutes when he had been seated for about 45 minutes at that time. He said he was biting his tongue and proceeded to stand up. He insisted he could only sit comfortably for 15 to 20 minutes.
Dr Keller considered the claimant only suffered temporary strains to the spine without evidence of lasting physical injuries to the cervical, thoracic or lumbar spine. He also concluded the claimant’s functional use of his right arm was more than reported as he did not find any measurable wasting. Assessor Kenna also found no evidence of disuse of the right arm. These findings were at odds with the opinion of Dr Dixon who noted 1 cm of wasting of the right upper arm in April 2019 and the opinion of
Dr Porteous who observed mild wasting in the right shoulder joint in June 2020. Assessor Kenna concurred with Dr Marsh in concluding that the claimant’s condition had morphed into a chronic pain-type syndrome with potential psychological sequalae.
At the time of his initial assessment Dr George’s concerns about the claimant’s presentation arose because Ms Muratovic, psychologist suggested the claimant’s presentation to her was inconsistent with his reports as to how he was feeling, she considered he was treatment resistant and because Mr Cimen denied any forensic issues which Dr George believed was contraindicated by a notation as to his arrest in 2013.
Much has been made about the claimant’s arrest in 2013 and the discrepancy in his evidence about the death of his friend who was shot. However, when questioned by Assessor Samuell the claimant readily explained the circumstances of his arrest arising out of a fairly minor offence and in the four years between that offence and the accident there is no suggestion of any adverse forensic history. I consider the claimant’s failure to disclose that his friend was a criminal who was shot is explicable when one considers the claimant did not want to appear at a disadvantage and where he had subsequently pulled away from those friends and got his life back on track.
The claimant reported he was depressed, sad and could not leave the house as early as 5 January 2018, less than four weeks after the accident and on 18 January 2018
Dr Dewan reported the claimant’s pain was interfering with his activities of daily living and he was mildly depressed.
The claimant was asked about his involvement in a relationship which resulted in the birth of his daughter, Ella. Mr Cimen disputed the accuracy of the entry in the clinical notes of 14 February 2019 which stated he and his partner had been trying to conceive for four months. When asked why he had not disclosed this relationship to medical practitioners or in his first statement Mr Cimen said, “no one asked me”, although I note Dr Bertucen referred to this relationship in his report of 6 June 2019. When asked how they met Mr Cimen said he had known Seren for a long time. He denied he and Seren went on dates or did things together and suggested it was one of the issues which led to the breakdown of the relationship. When asked if he lived with Seren he said she was living with him and his family when the baby was born but moved out when they broke up. I agree with the insurer that this relationship is at odds with the claimant’s assertion that he leads an inactive life.
In determining he was unable to make a psychiatric diagnosis Assessor Samuell placed inordinate weight on the opinions of Dr George and Dr McMahon notwithstanding the opinion of the treating psychiatrist Dr Singh who has treated the claimant, on and off having regard to COVID, since August 2018. Dr McMahon relied upon the opinions of Dr George and Dr Marsh in concluding the claimant was feigning spectrum behaviour when the results of the Test of Memory Malingering merely showed the claimant was evidencing efforts to appear overly symptomatic.
In assessing the reliability of the claimant’s evidence, I note the circumstances of the accident, which involved Mr Cimen being thrown from his motorcycle, and also the consistency of his complaints thereafter and the evidence of his treating practitioners including Dr Dave and Dr Singh.
I find the claimant is pain focused and pain avoidant. I find there has been a lack of consistency and tendency to exaggerate in his presentation to medical assessors. Any wasting of the claimant’s right arm is clearly not significant and not consistent with the lack of functional use of that arm over a period in excess of four years. I also have regard to the inconsistency recorded on examination by various medical practitioners as reported by Assessor Kenna. However, I also find the claimant’s perception of his pain and disability is influenced by his psychological condition.

THE INJURY SUSTAINED BY THE CLAIMANT

I prefer the opinions of Dr Dixon, Dr Porteous and Dr Poplawski to the opinion of
Dr Keller, although I accept that the claimant’s condition has morphed into a chronic pain condition with a psychological overlay.
I find the claimant sustained a right shoulder dislocation which required surgery, followed by the development of a frozen shoulder which has now largely recovered, and I am also satisfied he experiences pain and restriction of movement as a result of soft tissue injuries to his cervical spine, his thoracic spine, his lumbar spine, his right knee and to a lesser extent his left knee. I also note the surgical scarring to the right shoulder.
I also accept the opinion as to diagnosis of Dr Singh, that is, as a result of the accident Mr Cimen continues to suffer from a major depressive disorder with anxiety symptoms.
To what extent Mr Cimen’s presentation is as a result of his psychological overlay is difficult to assess but whilst he appears to have adopted the role of an invalid, I am not satisfied he is as disabled as he alleges, nor am I satisfied he has no residual work capacity.

THE ASSESSMENT OF DAMAGES

Past economic loss

The claim for past wage loss is calculated on the basis the claimant had a capacity to earn $1,000 net per week.
At the date of accident, the claimant was working two jobs, as a truck driver for Steve’s Eggs working 20 to 30 hours per week and in his family’s kebab shop doing food preparation and customer service for 12 to 15 hours per week.
Payslips from Salime Cimen show earnings of $1,666.67 gross per month for the five months pre accident which equates to the sum of $384.70 gross per week. In the 21 weeks prior to the accident the claimant earnt the sum of $569.86 gross per week from Steve’s Eggs. This results in total earnings of $954.56 gross per week in the period immediately prior to the accident.
The claimant has provided payslips from Buttigieg for the week ending 3 May 2017 when the claimant worked 51.5 hours and earnt the sum of $1,173 net and for the week ending 10 May 2017 when the claimant worked 52.5 hours and earnt the sum of $1,192 net. Whilst the claimant was not working with Buttigieg at the time of the accident the claimant submits these earnings demonstrate a capacity to earn of $1,192 net.
The insurer provided the following summary of the claimant’s pre-accident taxation returns:

Year

Gross income

Net income

Weekly income

2012

$25,894

$23,303

$448

2013

$27,262

$25,541

$491

2014

$3812

2015

2016

$20,687

$20,215

$388

2017

$28,214

$26,757

$514

The claimant did not produce his 2015 taxation return. The insurer submits the taxation returns do not support the submission that the claimant was earning about $1,000 net per week. The insurer submits I would allow a loss of $500 net per week since the date of accident.
It was suggested to Mr Cimen that he was not motivated to return to work following the accident because he was financially better off due to receipt of statutory benefits than he was in the 12 months prior to the accident noting the insurer had calculated the pre-accident weekly earnings (PAWE) at $1,014.48 gross. Mr Cimen denied any lack of motivation due to the receipt of statutory payments pointing out he had not received any payments during the last 12 months since the statutory payments ceased.
Ms Stewart found the claimant demonstrated an ability to work in sitting postures with breaks, to stand for short periods and to perform sedentary level manual handling. Given the patellofemoral chondral fissuring evidence on investigations in the right knee she concluded the claimant should avoid repetitive or sustained work at low levels and repetitive lifting from low levels.
Ms Stewart concluded Mr Cimen was not suited to working as a tipper truck driver in an unrestricted manner but could work selected short haul driving roles where manual loading and unloading are not required and he can alter his postures. She found he was suited to occupations such as traffic controller and fast-food customer service assistant or other occupations within the sedentary and light to medium classifications.
Mr Cimen disputed he could do a customer facing role now because he gets agitated, he does not sleep well and cannot sit for too long. He disputed he had the capacity to work as a car park attendant or drive a truck.
Whilst the insurer submitted the claimant had not attempted to mitigate his loss by attempting to find suitable work, I am satisfied having regard to the opinions of
Dr Porteous, Dr Singh and Dr Poplawski that the claimant has been totally unfit for work to date by reason of his chronic pain condition and his psychological illness as diagnosed by Dr Singh.
I propose to have regard to the claimant’s earnings in the period prior to the accident in calculating past economic loss in the sum of $954 gross per week or $787 net per week.
I assess damages for past wage loss at a loss of $787 net per week for 248 weeks in the sum of $195,176.
The insurer submits no allowance should be made for loss of superannuation payments where the claimant has not produced any evidence that he received superannuation payments from the jobs he was performing prior to the accident. However, noting the obligations of an employer pursuant to the Superannuation Guarantee (Administration) Amendment Act, 2012 I consider it appropriate to make an allowance for loss of superannuation benefits calculated at 9.5% of the past net economic loss.
Accordingly, I assess damages for past loss of superannuation benefits calculated at 9.5% of $195,176 in the sum of $18,541.72.

Special damage

A claim is also made for the loss of the deposit payment on the tipper truck purchase in the sum of $15,000.
Section 4.5(1)(a) of the MAI Act limits an award of damages for past or future economic loss to loss of earnings or the deprivation or impairment of earning capacity. I am not satisfied the loss of the deposit payment on the tipper truck can be categorised as a loss of earnings or the deprivation or impairment of earning capacity. There is no other provision of the MAI Act which would entitle the claimant to recover the loss of the deposit payment and I decline to award same.

Fox v Wood

Fox v Wood refers to the claimant’s entitlement to recover taxation payments deducted from statutory payments of compensation. The parties have agreed the claimant is entitled to recover the sum of $9,967 in respect of those payments. I assess damages accordingly.

Future economic loss

In assessing future economic loss, I must have regard to the provisions of s 4.7 of the MAI Act which states no allowance may be made for future loss of earning capacity unless the claimant establishes that the accident has caused a change in his most likely future circumstances.
A claim for future wage loss is calculated at $1,282 until retirement at age 70 years. The claim for future wage loss is predicated on the following:
(a)    prior to the accident the claimant was earning or capable of earning $1,275 net per week;
(b)    the claimant will remain unfit for return to employment until retirement at age 70 years;
(c)    prior to the accident the claimant had paid a non-refundable deposit for purchase of a Tipper truck and intended to work under the business name Kolo Recycling undertaking heavy haulage on construction sites;
(d)    the claimant would reasonably expect to work more than 38 hours per week;
(e)    hourly rates do not take into account weekend penalty rates;
(f)    the claimant would reasonably expect to work weekends and receive penalty rates;
(g)    the claim is for an additional 10 hours per week, that is, for 48 hours weekly;
(h)    the average earnings of a truck driver according to the Paysale.com extract is $34.99 gross per hour;
(i)    48 hours at $34.99 gross per hour is $1,679.52 gross per week or $1,282 net per week, and
(j)    having regard to current trends in the workforce the claimant more likely than not would have worked to at least 70 years of age.
The insurer submits the claimant has exaggerated his level of disability, he has not attempted to mitigate his loss and appears to have no intention of seeking alternative work.
I find the claimant’s most likely future circumstances was continued employment as a truck driver, either as a subcontractor or an employee. The claimant’s intentions in that regard are evidenced not only by his employment history prior to the accident but by the statement of Chabal Bazouni who stated had the claimant proceeded with the purchase of the tipper truck he would have been offered contract work on a full-time basis.
I find the accident has caused a change in the claimant’s most likely future circumstances. Having regard to the opinions of Dr Porteous, Dr Poplawski, Dr Singh and Gillian Stewart I find the claimant is likely to remain unfit for return to his pre-injury employment as a truck driver or to secure a commercial truck licence.
The claimant is only 33 years of age with a working life of 34 years assuming a working life to age 67 years. Notwithstanding the claimant’s current chronic pain condition and depressive disorder, I am not satisfied he has no residual earning capacity. Furthermore, there is no evidence to suggest the claimant is likely to work beyond the current retiring age of 67 years.
I concur with the opinion that psychological barriers have been impeding recovery of the claimant’s physical symptoms and promoting fear avoidance and pain focused type behaviour. However, I note the claimant has now agreed to follow the recommendation of Dr Singh and undergo an inpatient admission to a mental health clinic.
Assuming an improvement in the claimant’s psychiatric condition I consider it appropriate to compensate him on the basis of total incapacity for another two years and thereafter I am of the view he will have a capacity to return to light sedentary employment where he can sit and stand at will, alter his posture and where there is no requirement for manual handling. The claimant has experience in customer service, in taking orders and in money handling as a result of his work in his parent’s kebab business. However, I also accept the claimant will be disadvantaged competing on the open labour market.
I note the claimant has demonstrated a capacity to earn $1,192 net per week in his employment with Buttigieg and I also have regard to the average earnings of a truck driver according to the Paysale.com extract of $34.99 gross per hour which equates to the sum of $1,053 net for a 38-hour week or $1,282 net for a 48-hour week. Having regard to the two payslips from Buttigieg and noting the claimant was also undertaking concurrent employment in his parent’s fast-food business I propose to calculate the claimant’s future earning capacity calculated at $1,200 net per week.
I propose to assess damage for future wage loss on the basis of total incapacity for work for the next two years and thereafter on the basis the claimant has a residual earning capacity of 20 hours per week in alternative sedentary work. In his report O J Burchett of the Vocational Capacity Centre nominates a number of suitable occupations and the salary applicable for those roles. Whilst I am not convinced all of those occupations would be suitable for the claimant or would even be accessible to him, having regard to the salary applicable to those roles I propose to assess the claimant’s residual earning capacity for the remainder of his working life in the sum of $500 net per week. I propose to apply a discount of 15% for the vicissitudes of life.
Having assessed the claimant’s future earning capacity in the sum of $1,200 net per week and his residual earning capacity in the sum of $500 net per week I assess the loss at $700 net per week for the remainder of the claimant’s working life following deferral for two years.

I assess damages for future wage loss in the sum of $557,404.93 as follows:
(a) $1,200 x 99.4 (5% multiplier for 2 years) x 0.85 in the sum of $101,388, and
(b) $700 x 845.0 (5% multiplier for 32 years) x 0.907 (5% deferred multiplier for 2 years) x 0.85 in the sum of $456,016.93.
I also assess damages for future loss of superannuation benefits calculated at 14.49% of $557,404.93 in the sum of $80,767.97.

ASSESSMENT OF DAMAGES SUMMARY

I assess the claim as follows on the findings set out above:
Past Loss of earnings (incl superannuation)  $213,717.72
Future loss of earnings (incl superannuation)  $638,172.90
Fox v Wood  $9,967.00
TOTAL DAMAGES ASSESSED  $861,857.62
The claimant’s economic losses are to be reduced by and the insurer is to have credit for statutory payments pursuant to s 3.40 of the MAI Act in the sum of $160,814.

COSTS AND DISBURSEMENTS

I refer to the claimant’s schedule of costs and disbursements.
I agree with the insurer that the claimant is only entitled to recover the regulated fee in respect of Dr Dixon’s report fee in the sum of $1,660 plus GST.
A claim was made for eight conferences. The insurer submits four is reasonable.
I note the complexity of the claim and allow four.
Disbursements as claimed were otherwise agreed.
Costs and disbursements are otherwise assessed in accordance with the attached Damages and Costs Calculator in the total sum of $68,206.60.

Year	Gross income	Net income	Weekly income
2012	$25,894	$23,303	$448
2013	$27,262	$25,541	$491
2014	$3812
2015
2016	$20,687	$20,215	$388
2017	$28,214	$26,757	$514

[2022] NSWPIC 482

2 September 2022