Cortes v QBE Insurance (Australia) Limited
[2023] NSWPICMR 1
•11 January 2023
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
| Citation: | Cortes v QBE Insurance (Australia) Limited [2023] NSWPICMR 1 |
| ClaimanT: | Marlon Cortes |
| Insurer: | QBE Insurance (Australia) Limited |
| Merit Reviewer: | Katherine Ruschen |
| DATE OF DECISION: | 11 January 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Merit review; dispute about payment of weekly benefits under Division 3.3 of the Motor Accident Injuries Act 2017 (2017 Act); meaning of pre-accident earning capacity under schedule 1, clause 7 ; meaning of post-accident earning capacity under schedule 1, clause 8; qualifications, training, skills and experience; suitable employment; whether insurer has improperly excluded injuries said to be a result of the motor accident; whether insurer is in breach of clause 4.56 of the Motor Accident Guidelines; Held – the reviewable decision is affirmed. |
| Determinations made: | CERTIFICATE OF DETERMINATION Issued under s 7.13(4) of the Motor Accident Injuries Act2017 The reviewable decision is about the amount of weekly payments of statutory benefits that are payable under Division 3.3 of the Motor Accident Injuries Act 2017 (the MAI Act),and is therefore a merit review matter under Schedule 2(1)(a) of the MAI Act. 1. The reviewable decision is affirmed. |
STATEMENT OF REASONS
introduction
There is a dispute between Marlon Cortes (the claimant) and the insurer about the amount of weekly payments of statutory benefits that are payable under Division 3.3 of the MAI Act.
The claimant was involved in a motor accident on 18 January 2021.
The claimant made an application for payment of statutory benefits under the MAI Act.
There is no dispute that the claimant is an earner within the meaning of the MAI Act.
The dispute is in relation to entitlements to weekly payments in the period after the second entitlement period ends under s 3.8 of the MAI Act.
On 23 May 2022 the insurer made a decision about the claimant’s entitlement to payment of weekly benefits after the second entitlement period (after 78 weeks after the date of the accident) that is, from 19 July 2022. The insurer determined the claimant suffered a loss of earnings for the purpose of s 3.8 in the sum of $11.45 and therefore the claimant was entitled to payment of weekly benefits at the rate of $9.73 (85% of his net loss) based on the following findings:
(a) the claimant’s pre-accident capacity to earn equated to a capacity to earn $764.45 net per week, and
(b) the claimant has a post-accident capacity to work up to six hours per day for five days per week as a postal delivery officer, which would produce average weekly earnings of $753.
The claimant requested an internal review of the insurer’s decision dated 23 May 2022.
On 19 July 2022 the insurer issued their internal review decision in which they affirmed their original decision that the claimant’s entitlement to weekly benefits under s 3.8 is $9.73 per week.
The claimant seeks a merit review of the insurer’s internal review decision dated
19 July 2022.Separately, the insurer has determined that a left knee and back injury are not a result of the motor accident. The claimant disputes this decision and has lodged an application with the Personal Injury Commission (the Commission) for a medical assessment to determine this dispute. It is understood the medical assessment application has not yet been determined.
SUBMISSIONS
The claimant raises two issues in this merit review:
(a) that the insurer failed to consider certain injuries and care and treatment related to same (namely left knee and back injuries referred to in the claimant’s submissions as the “excluded injuries”) in their determination of post-accident earning capacity and the decision in this regard is therefore incorrect, and
(b) that the insurer’s earning capacity determination breaches cl 4.56 of the Motor Accident Guidelines (the Guidelines) on the basis the determination is “incomplete, capricious and not evidence based”. The basis of this submission is that the claimant contends the insurer failed to consider the excluded injuries and related treatment and that after this was brought to the insurer’s attention, the insurer failed to fix “this error promptly” and/or did not act in good faith and/or is perceived to be biased toward a particular outcome.
The insurer submits the claimant has been certified as having capacity to work six hours per day, five days per week (that is, up to 30 hours per week) and a vocational assessment has identified postal delivery officer as a suitable role for the claimant. The insurer submits that given the evidence of this current earning capacity there has been no error and no breach of cl 4.56 of the Guidelines.
REASONS
Legislation
Section 3.8 of the MAI Act relevantly provides:
“Weekly payments after second entitlement period (after week 78)
(1) A person who is injured as a result of a motor accident and suffers a total or partial loss of earning capacity as a result of the injury is entitled to weekly payments of statutory benefits under this section after the end of the second entitlement period, but only if the person—
(a) is at least 18 years of age (whether or not the person is an earner), or
(b) is under 18 years of age and is an earner.
...
(2) A weekly payment of statutory benefits under this section is to be at the rate of—
(a) in the case of total loss of earning capacity—80%, or
(b) in the case of partial loss of earning capacity—85%,
of the difference between the person’s pre-accident earning capacity and the person’s post-accident earning capacity (if any) after the second entitlement period.
(3) A weekly payment of statutory benefits to a person under this section is not to exceed the maximum weekly statutory benefits amount less the person’s post-accident earning capacity (if any) after the second entitlement period.
(4) A weekly payment of statutory benefits to a person under this section is not to be less than the minimum weekly statutory benefits amount or the person’s pre-accident earning capacity, whichever is the lesser.”
(emphasis added)
In the first and second entitlement periods under ss 3.6 and 3.7 the entitlement to weekly benefits is assessed by reference to the injured person’s pre-accident weekly earnings (PAWE). However, under s 3.8 PAWE no longer forms the basis of an assessment of the extent to which weekly benefits are payable. Instead, under s 3.8 any entitlement to weekly benefits is assessed by reference to pre-accident earning capacity.
Section 3.15 sets out requirements for the claimant to provide evidence as to fitness for work on an ongoing basis.
Pursuant to s 3.16 the insurer may make a decision about the pre-accident earning capacity or post-accident earning capacity of an injured person at any time. For example, if the claimant’s partial capacity to earn increases to a greater or full capacity the insurer can make a new decision about post-accident earning capacity at that time.
The pending medical dispute does not prevent an insurer from making a decision about earning capacity. Making an earning capacity decision at the time when the second entitlement period has ended, or is about to end is consistent with the objects of the MAI Act. A decision on earning capacity can only be based on available information. Further, what is relevant is the claimant’s earning capacity at the time of the decision.
If further evidence comes to hand the claimant may request an updated earning capacity decision from the insurer. Importantly, the claimant has the onus of proof where he challenges an earning capacity decision of the insurer.
Pursuant to Schedule 1, cl 7 of the MAI Act pre-accident earning capacity means:
“(1) ‘Pre-accident earning capacity’ of an injured person means the weekly amount a person had the capacity to earn before the motor accident concerned in employment reasonably available to the person in view of the person’s training, skills and experience.
(2) If the amount of an injured person’s pre-accident earning capacity cannot be determined, the amount is deemed to be the amount that is equal to 80% of the average weekly total earnings of adults in full-time employment in New South Wales last published by the Australian Statistician.”
(emphasis added)
Relevantly, pursuant to Schedule 1, cl 8 of the MAI Act:
“(1) ‘Post-accident earning capacity’ of an injured person means—
(a) …
(b) for any period after the second entitlement period—the weekly amount the person has the capacity to earn in any employment reasonably available to the person, determined on the basis of the person’s fitness for work in any such employment.
(2) …
(3) A person’s fitness for work after the second entitlement period is to be determined having regard to the following—
(a) the nature of the injury and the likely process of recovery,
(b) treatment provided and rehabilitation undertaken and the potential for further treatment and rehabilitation,
(c) the person’s training, skills and experience,
(d) the age of the person,
(e) any medical certificate provided by the injured person as to the person’s fitness for work.
(4) The Motor Accident Guidelines may make provision for the matters to be taken into account for the purposes of determining the employment reasonably available to a person in any period after the second entitlement period.”
(emphasis added)
Clause 4.56 of the Motor Accident Guidelines (the Guidelines) sets out the matters to be considered in a determination of post-accident earning capacity, as follows:
“When determining employment reasonably available to a claimant at any time after the second entitlement period (from week 79 after the motor accident), the matters to be considered include:
(a) the nature and extent of the claimant’s injuries
(b) the claimant’s age, education, skills and work experience
(c) rehabilitation services that are being or have been provided
(d) the nature of the claimant’s pre-injury employment
(e) the claimant’s place of residence at the time of the motor accident
(f) the details given in the claimant’s Certificate of Fitness
(g) the length of time the claimant has been seeking employment
(h) any other relevant circumstances.”
Pursuant to the Supreme Court decision in Allianz Australia Insurance LTD v Jenkins (2020) NSWSC 412, payment of weekly benefits under s 3.8 of the MAI Act is on the basis of net earnings, not gross.
The claimant’s pre-accident earning capacity
As noted above, pre-accident earning capacity for the purpose of the MAI Act means the weekly amount a person had the capacity to earn before the motor accident in employment reasonably available to the person in view of the person’s training, skills and experience.
The insurer appears to have determined pre-accident earning capacity based on the claimant’s PAWE, which was assessed based on the claimant’s pre-accident sole trader income. However, it is apparent the claimant’s pre-accident sole trader earnings fluctuated. That is the nature of a sole trader income. Whilst the claimant is stuck with this for the purposes of calculating PAWE he is entitled to have his pre-accident earning capacity considered as if he were an employee where work as an employee would have been reasonably available to him. As an employee, the claimant likely would work regular hours on a consistent basis and not suffer the same fluctuation in earnings as he would as a sole trader. This approach is inherent in the distinction between PAWE and pre-accident earning capacity.
There is nothing to suggest work as an employee in place of a sole trader would not have been reasonably available to the claimant in his circumstances. Accordingly, pre-accident earning capacity should take this into account.
There is no evidence of any impediment to the claimant working fulltime (40 hours per week) in a range of employment prior to the accident other than his student visa status and/or ongoing studies. During school term, the claimant’s student visa restricts him to working 20 hours per week. I have not been provided with any evidence as to whether the claimant remains on a student visa with the same work restriction. However, the evidence indicates the claimant continues to engage in studies in both English tuition and a college course in Leadership and Management.
On the basis the claimant has a visa restricting work to 20 hours per week during school terms and/or has ongoing studies I do not consider full-time work reasonably available to the claimant for the purpose of assessing his pre-accident earning capacity. Whilst the claimant says he worked additional hours outside of school term which he believes resulted in a weekly average of 40 hours per week there is no documentary evidence in support of this, and it seems doubtful that the claimant would have been able to reach this average by including additional hours outside of school term. The claimant’s PAWE suggests an average of 30 hours per week, give or take.
Accordingly, I consider the claimant’s pre-accident earning capacity equated to a capacity to work an average of approximately 30 hours per week (taking into account an ability to work additional hours outside of school term), as fulltime work was not reasonably available to him by reason of his visa restriction and requirement to dedicate time to his studies. Adopting an hourly rate of $25 to $30 based on the claimant’s education, training, experience and young age, this is reasonably consistent with the claimant’s sole trader earnings and in turn his PAWE. I therefore accept that the claimant’s pre-accident earning capacity equates to a capacity to earn $886.45 gross per week, which is $764.45 net per week.
Should the claimant’s visa status change and he completes his studies, he should provide evidence to the insurer and request an updated determination of his pre-accident earning capacity. It would be expected that if the visa work restriction is removed and the claimant has completed his studies that pre-accident earning capacity would be assessed by the insurer based on a capacity to earn fulltime (that is, 40 hours per week).
The claimant’s post-accident earning capacity
The substantive issue is whether the claimant’s earning capacity is less than that determined by the insurer because of a left knee and/or back injury.
Whether there is a left knee and/or back injury as a result of the motor accident is in dispute and is the subject of an application for a medical assessment, which is currently pending before the Commission.
Leaving aside the issue of whether there is a left knee and/or back injury as a result of the motor accident, if the claimant contends such injuries currently restrict his earning capacity the onus is on the claimant to provide medical evidence in support of the contention.
The claimant’s submissions conflate the issues of whether the “excluded” injuries are a result of the motor accident and earning capacity. The claimant’s submissions do not address current capacity to earn in any detail and largely rely on the claimant’s self-reported symptoms regarding his left knee and back. The submissions do not point to any expert medial evidence in the claimant’s extensive document bundle that provides an opinion on earning capacity when considering the left knee and/or back injury. Rather, the submission appears to be that there is evidence of such injuries resulting from the accident and therefore there must be, in turn, a reduction in earning capacity. However, the fact of an injury is not evidence of a loss of earning capacity. Over 18 months had passed since the day of the motor accident when the insurer made their earning capacity decision. In many cases, it is expected that some or all injuries sustained by an injured person would improve and/or resolve in this time. Evidence of an injury in January 2021 is not evidence of a restricted earning capacity in July 2022. Evidence of an injury reportedly remaining symptomatic in July 2022 is also not sufficient on its own to determine loss of earning capacity. If the claimant says a knee and/or back injury continues to impact earning capacity 18 months on from the motor accident, the onus is on the claimant to establish this through expert medical opinion. The claimant’s submissions and documents do not address this issue which is the pertinent issue in this merit review.
As noted above, Schedule 1, cl 8(3) of the MAI Act and cl 4.56 of the Guidelines set out the matters to be considered for the purpose of determining post-accident earning capacity. Each of these matters is considered below.
Nature and extent of the claimant’s injuries and likely recovery
The evidence establishes the claimant sustained bilateral hand fractures as a result of the motor accident. The claimant has undergone surgery, hand therapy and a guided cortisone injection. Whilst arthroscopic surgery has been discussed with the claimant the evidence establishes the claimant has no plans for further hand surgery and it appears ongoing treatment will be conservative.
The claimant complains of ongoing pain/discomfort in his hands. However, the evidence establishes on balance that symptoms have sufficiently resolved and/or are sufficiently manageable such that the claimant is not significantly restricted in his earning capacity by reason of the bilateral hand injuries.
The claimant also contends he suffered left knee and lumbar spine injuries, which he says also cause ongoing pain. The left knee has been diagnosed as tendinopathy. There does not appear to have been any significant investigation in relation to the lumbar spine and there does not appear to be a medical diagnosis of any back injury.
Dr Szomor reports that the left knee condition is likely the result of impact to the knee during the motor accident. However, Dr Szomor does not disclose his reasoning process for reaching this conclusion. Other evidence puts into question whether the left knee is causally related to the motor accident, including on its face there is no radiological evidence of any injury to the knee that might account for the tendinopathy. An ultrasound of the left knee in March 2021 only showed a strain of the lateral collateral ligament in addition to the presence of proximal patella tendinopathy. An MRI reported on 26 November 2021 shows no ligament or meniscus injury and no other abnormality indicating an injury to the knee that might explain the presence of tendinopathy. In addition, there are issues that tendinopathy can also be caused by overuse (the claimant’s sporting history may be relevant in this regard) and typically resolves in 8 to 12 weeks. If the tendinopathy was a result of the motor accident, in the ordinary course one would expect it to have resolved long before the insurer’s capacity decision.
It is not known whether Dr Szomor considered the temporal issue or the possibility that the tendinopathy is the result of another cause such as the claimant’s sporting activities prior to the accident, overuse or impact to the knee occurring before or after the motor accident before concluding the tendinopathy is likely a result of the motor accident. Without any reasoning from Dr Szomor and absent any other expert opinion to explain whether there is a causal link between the left knee condition and the motor accident I am not comfortably satisfied on the balance of probabilities, on the evidence before me, that the left knee condition is a result of the motor accident.
There is scant medical evidence regarding a back injury. The evidence in this regard is largely limited to a record of the claimant’s reported symptoms. As noted, there does not appear to be any medical opinion that the claimant has a back injury as a result of the motor accident. Accordingly, I am not comfortably satisfied on balance that there is a back injury as a result of the motor accident.
The claimant submits that a referral letter from the claimant’s general practitioner (GP) to Dr Szomor “unequivocally causally links the knee injury and need for treatment to the motor accident”. However, the referral letter simply records symptoms, as reported by the claimant. In other words, the doctor has simply recorded the history, as given by the claimant. The GP does not include in the referral letter any independent expert opinion on whether there is likely a causal connection between the claimant’s complaints of left knee pain and/or the tendinopathy reported in the MRI and the motor accident. Accordingly, this submission is unfounded.
Further evidence is required before one could be reasonably satisfied on balance that the left knee condition is the result of the motor accident. In any event, the issue is clearly in dispute and as merit reviewer, I do not have jurisdiction to determine whether an injury is a result of the motor accident. Nor do I have jurisdiction to determine the degree of impairment of earning capacity as a result of any particular injury. Disputes about these matters are medical assessment matters under Schedule 2, cl 2 of the MAI Act. Pursuant to Schedule 2, cl 1 of the MAI Act this merit review is necessarily limited to determining the amount of weekly benefits payable under s 3.8 of the MAI Act.
The claimant has lodged an application for a medical assessment regarding the dispute over whether the left knee and back injuries are a result of the motor accident. That application is yet to be determined. The outcome of the medical assessment may have some bearing on whether the claimant has suffered a loss of earnings and if so, to what extent for the purpose of s 3.8. It will likely be appropriate for the insurer to undertake an updated earning capacity assessment following the outcome of the medical assessment. In the meantime, the second entitlement period has ended, and it was therefore appropriate for the insurer to determine the extent of the claimant’s loss of earnings under s 3.8 at that time. The decision can only be made on the evidence available at the time of the decision. The MAI Act clearly contemplates that the insurer may make more than one earning capacity decision by permitting the insurer to do so at any time.
Leaving aside the question of whether the left knee or back injury is a result of the motor accident there is presently no expert medical evidence that the left knee or back injury impacts the claimant’s earning capacity to any greater extent than determined by the insurer in the insurer’s current capacity decision.
The claimant’s age, education, training, skills and work experience
The claimant is 25 years of age. The claimant is a native Spanish speaker, having arrived in Australia from Colombia in 2019. In his statement he contends his English is limited. However, the claimant’s work, study and sporting history in Australia, including working as a sole trader air conditioner technician/installer assistant as well as for several companies suggests the claimant’s English ability is at a level sufficient for him to find gainful employment in the Australian workforce. This is also evidenced by the fact the claimant currently works as a store person. I note the claimant is completing a Certificate IV course in Leadership and Management with Lloyds College, a course that is presumably conducted in English. In the circumstances, any English language limitation likely does not adversely impact the claimant’s ability to find and carry out employment.
In addition to working as an air conditioner technician/installer assistant the claimant’s work experience includes food delivery driver and working as a scaffolder.
On 18 March 2022 Recovre conducted a vocational assessment and identified that the claimant had several transferable skills based on his work experience in Australia to date. These are listed on page 7 of the report. Based on these transferable skills, among other things, Recovre determined that suitable employment for the claimant included postal delivery officer, crossing supervisor and sales assistant (food, drinks and general groceries).
I have considered the claimant’s criticisms of the Recovre report and consider most of them unsubstantiated. Much of what the claimant says in submissions is a matter for expert evidence and there is no expert evidence that challenges Recovre’s conclusions regarding the types of employment available to the claimant based on his training, skills and experience (or his ability to do those roles from a functional capacity perspective).
Treatment and rehabilitation services that are being or have been provided and the potential for further treatment and rehabilitation
The claimant has received extensive bilateral hand treatment and therapy and has completed an exercise physiology program. There is no evidence the claimant requires any significant ongoing treatment or rehabilitation regarding the hands. On balance, it appears ongoing treatment for the hands is likely to be conservative. Whilst arthroscopic surgery has been discussed, the claimant’s GP records record as of
14 July 2022 that there is no plan for surgery.Regarding the left knee, the evidence establishes on balance that only conservative treatment is required consisting of the application of icepacks and Voltaren cream and home exercise.
There is no medical evidence to suggest any ongoing treatment or rehabilitation is required for a back injury.
The nature of the claimant’s pre-injury employment
This is considered above under “The claimant’s age, education, training, skills and work experience”.
The claimant’s place of residence at the time of the motor accident
At the time of the motor accident the claimant resided in a suburb of Sydney. There is no evidence to suggest the claimant’s place of residence within Australia has any adverse impact on earning capacity.
Details in the claimant’s Certificate of Fitness
Certificates of Fitness have been provided by the claimant’s GP. The insurer’s capacity decision is consistent with the GP’s certification regarding fitness for work. The GP has certified the claimant as fit to work 30 hours per week since at least early to mid-2022.
There is no expert medical opinion which challenges the GP’s certification regarding fitness for work. Whilst the GP does not expressly record a left knee or back injury having been sustained in the accident in the certificates of fitness it can be reasonably inferred that the GP has considered the left knee and back in view of the following:
(a) the GP progress notes record the claimant’s complaints of left knee and back pain said by the claimant to be attributable to the motor accident and the GP has referred the claimant for specialist review regarding same;
(b) the GP has recorded issues with the left knee and back in progress notes which also record the GP’s opinion on earning capacity separate to the certificates issued. For example, on 26 April 2022 there is reference to a knee injury in the progress notes along with a record that the claimant is fit for work for six hours per day for five days per week with a 10kg lifting restriction, and
(c) the results of the left knee MRI were discussed by Dr Wijetunga and
Dr Antoun of Medical Assist Network as part of the claimant’s rehabilitation program on 26 April 2022, as recorded in the Doctor Support Program report of that date. At this time the claimant’s GP confirmed their medical opinion that the claimant has capacity for six hours per day, five days per week.Dr Szomor has provided an opinion on the claimant’s fitness for work, expressly in connection with the left knee. Dr Szomor does not support the claimant’s contention he has an incapacity for work arising from a left knee injury. Dr Szomor opines “as left knee symptoms are relatively mild it is expected [the claimant] will be able to return to his usual work from his knee point of view”.
It is apparent that both the GP and Dr Szomor have considered the left knee injury in connection with fitness for work and both agree it does not have any significant impact on earning capacity. It is also apparent the claimant’s GP is aware of and has considered the claimant’s complaints of back pain and that this does not alter the GP’s opinion on earning capacity.
There is no medical evidence which states the claimant has a further reduction in earning capacity (that is, an earning capacity that is less than the capacity determined by the GP and the insurer) by reason of a left knee or back injury (regardless of whether such injuries are a result of the motor accident). Accordingly, the claimant’s submissions regarding cl 4.56 of the Guidelines, including that the insurer’s earning capacity decision is not tenable because it excludes the left knee and back injuries is not substantiated on the evidence.
There appear to be attempts by the claimant and/or his solicitor to have the GP amend their opinion regarding fitness for work. There is a concerning entry in the progress notes on 14 July 2022, which records that the claimant is not happy with the GP’s “WCC” and that “his solicitors have put too many amendments to do in the initial certificate”. The content of a certificate as to fitness for work represents the GP’s independent expert opinion. It is inappropriate for the claimant or his solicitor to request that the GP alter their expert medical opinion and if a solicitor attempts to do so it puts them in breach of the solicitors’ conduct rules.
There are also rehabilitation reports from Peak Conditioning. The final report at the end of the claimant’s rehabilitation program was issued on 7 October 2021 at which time the claimant had successfully demonstrated an increase in functional capacity to allow him to return to employment 5 hours per day, 4 days per week (20 hours per week) with a 15kg lifting, pushing/pulling restriction and no driving. Peak Conditioning recommended a certificate of capacity be issued in this respect.
In the months that followed the claimant’s GP increased the claimant’s capacity to 6 hours per day, 5 days per week (that is, from 20 hours per week to 30 hours per week), which is consistent with further improvement over time which the medical records indicate was anticipated.
Lastly, in addition to identifying occupations suitable for the claimant based on his training, skills and experience Recovre also concluded the claimant had the capacity to perform those roles from an injury/fitness perspective and for the hours (30 hours per week) certified by the GP.
Accordingly, there is a consensus in the medical evidence that the claimant is fit to work 30 hours per week in some type of employment. There is no medical evidence to the contrary. In so far as the left knee is concerned the expert opinion of Dr Szomor is that the claimant does not have any incapacity for work arising from the left knee injury. There is no evidence rebutting that opinion.
The length of time the claimant has been seeking employment
I have not been provided with any substantial evidence in relation to the claimant’s attempts to seek employment. The documents available, however, suggest the claimant has been able to secure employment as a store person since August 2022.
Any other relevant circumstances
Section 1.3 sets out the objects of the MAI Act, which relevantly include:
(a) benefiting all members of the motoring public by keeping the overall costs of the scheme within reasonable bounds so as to keep premiums affordable, and
(b) promoting the recovery and return to work or other activities of those injured in motor accidents.
Section 1.3(4) requires a construction of the MAI Act that would promote the objects of the MAI Act to be preferred to a construction that would not promote those objects.
The second reading speech for the Motor Accident Injury Bill noted the reasons for insurers being able to regularly assess a person’s earning capacity under the MAI Act as being “to ensure that injured people who have the capacity to return to employment stay off work only as long as is necessary to support their recovery”.
Summary
Having considered all the above, I am satisfied on balance that the evidence establishes the following in circumstances which include the left knee and back injuries, regardless of whether they are a result of the motor accident:
(a) pre-accident the claimant had the capacity to earn based on an average working week of around 30 hours in a range of occupations, including food delivery driver, air conditioner technician/installer assistant and the occupations identified by Recovre, and this capacity equates to average weekly earnings of $764.45 net, and
(b) post-accident the claimant has the capacity to work 6 hours per week, 5 days per week (that is, 30 hours per week) in a range of occupations including postal delivery officer, crossing supervisor and in sales and such roles are reasonably available to the claimant, which would generate earnings of around $753 net per week.
In relation to the earnings available from the roles identified by Recovre there is no evidence to rebut the information gathered by Recovre regarding wages available in such roles. Accordingly, I accept on balance the figures proposed by Recovre.
CONCLUSION
For the reasons set out above, I am satisfied on balance that the evidence establishes the claimant has a pre and post-accident earning capacity consistent with that determined by the insurer in their internal review decision (although my reasoning regarding pre-accident earning capacity differs the same conclusion is reached). I also consider employment reasonably available to the claimant includes the additional roles of crossing supervisor and sales assistant identified by Recovre and is not limited to postal delivery officer.
As to the claimant’s complaint that the insurer is in breach cl 4.56 of the Guidelines, I have concluded above that there is no evidence that the left knee or back injury has any significant impact on earning capacity and that it can be inferred that the GP’s opinion on earning capacity takes these injuries into consideration. The insurer has in turn relied on the GP’s certification as to earning capacity. It follows from this that the insurer is not in breach of cl 4.56.
Further, there is clearly a dispute about whether the left knee and back injuries are a result of the motor accident. The claimant’s submissions essentially suggest the insurer is in breach of cl 4.56 because the insurer has not conceded to the claimant’s views regarding the evidence and his capacity.
There are several flaws in the claimant’s argument under cl 4.56. Some have been identified above, including that evidence said to “unequivocally” link the left knee injury to the motor accident does not in fact do so, as the referral letter relied upon by the claimant simply records the history given by the claimant and does not express the doctor’s independent expert opinion.
The predominate failings in the claimant’s submissions are that:
(a) there is no expert medical opinion which confirms the claimant’s alleged back injury is likely a result of the motor accident;
(b) there is only one medical opinion suggesting the left knee condition is likely a result of the motor accident, but that report is completely lacking in any reasoning process, and it is questionable as to whether any other aspect of the ultrasound or the MRI could explain the presence of tendinopathy in the patella;
(c) accordingly, there are reasonable grounds for the insurer to determine the knee and back injuries are not a result of the motor accident;
(d) in circumstances where the insurer’s decision that the left knee and back injuries are not a result of the motor accident has not yet been set aside by a Medical Assessor, the insurer is entitled to maintain their position including for the purpose of issuing a capacity decision;
(e) in any event, by relying on the GP’s certification, among other things, the insurer has implicitly considered the left knee and back in their capacity decision;
(f) there is no evidence that the claimant has a greater incapacity to earn than that certified by his GP, regardless of whether the left knee and back injuries are included. In fact, the specialist Dr Szomor opines there is no incapacity for work arising from the left knee; and
(g) in short, the claimant (or his solicitor) obviously has a certain view of the matter and is entrenched in that view, but it is not supported by the current evidence. It is therefore not unreasonable for the insurer not to concede to the claimant’s position.
It follows from the above that the claimant has not established any breach of cl 4.56 by the insurer.
Lastly, there is a capacity certificate issued by the claimant’s GP on 15 September 2022 stating the claimant has a capacity to work only four hours per day for four days per week from 17 August 2022 until 11 October 2022, although the GP had not seen the claimant between 14 July 2022 and 8 September 2022 (and perhaps not until 15 September 2022 as the progress notes were printed on 8 September 2022 showing the last consultation at that time on 14 July 2022).
I have not been provided with the GP’s progress notes for any consultations after
8 September 2022 at which time the last was on 14 July 2022. Accordingly, I am unable to reconcile this certificate with records made by the GP in the progress notes which may shed further light on why the GP has reached a different view on capacity at this time. The certificate has been back dated to a date in August 2022 when the claimant commenced employment as a store person. This work provides him with shifts of a maximum of four hours per day for three to four days each week. The certificate dated 15 September 2022 conveniently aligns with the claimant’s employment circumstances and perhaps a desire to continue in that more limited capacity for various reasons, including that it would allow him more time to focus on his studies. The certificate also follows the last consultation on 14 July 2022 where it appears the claimant or his solicitor attempted to put pressure on the GP to amend the certificate of capacity. For these reasons, I am not comfortably satisfied that the 15 September 2022 certificate alone represents the claimant’s capacity since 17 August 2022. Further enquiry should be made by the insurer.As noted, the insurer may make a capacity decision at any time. In the circumstances of the 15 September 2022 certificate, it would be appropriate for the insurer to request updated progress notes from the GP together with any other relevant information and make an updated capacity decision. In the meantime, I am satisfied that the insurer has correctly determined the amount of weekly benefits payable from 19 July 2022 under s 3.8 of the MAI Act.
Accordingly, the reviewable decision is affirmed.
Legislation and Guidelines
In making this decision, I have considered the following:
· the application, reply and supporting documentation;
· the MAI Act;
· the Guidelines, and
· Motor Accident Injuries Regulation 2017.
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