Dinjard v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPIC 189
•16 April 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Dinjard v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 189 |
| CLAIMANT: | Darko Dinjar |
| INSURER: | Insurance Australia Limited trading as NRMA Insurance |
| MEMBER: | Belinda Cassidy |
| DATE OF DECISION: | 16 April 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; late claim for statutory benefits; claimant alleged neck and shoulder injuries in car accident in October 2020; claim made 33 months late in August 2023; claimant had long history of pre-accident neck and shoulder complaints and said he did not know there was a three year time limit on making a claim and that he thought he would recover from his injuries; he also said it was not until he saw a neurosurgeon who advised him to have surgery and that the accident may be to blame that the claimant considered the connection between his accident and his current state; the insurer conceded the explanation was full; Held – assessment on the papers; analysis of GP records; explanation was satisfactory and reasonable person with claimant’s background of 15 – 20 years of pain pre-accident whose symptoms improved soon after the accident but substantially deteriorated more than two years after the accident would have been justified in experiencing the same delay; costs allowed at the regulated rate; Karambelas v Zacnic, Figliuzzi v Yonan, Andriotis v NRMA, Hunter v Roberts, and Dahdah v Witte considered. |
| DETERMINATIONS MADE: | CERTIFICATE In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Commission’s assessment is: 1. The insurer is entitled to refuse payment of weekly statutory benefits for the period before 2 August 2023 in accordance with section 6.13(2). 2. The claimant has a full and satisfactory explanation for the delay in making the claim and a late claim for statutory benefits may be made in accordance with section 6.13(3). 3. The amount of the claimant’s costs in the matter is assessed as $2,110.90 including GST. |
STATEMENT OF REASONS
INTRODUCTION
Darko Dinjar was involved in a motor accident on 18 October 2020. At the time he was 58 years of age. He is now 61 years of age.
Mr Dinjar says he sustained a neck injury in the accident, and he has had constant neck pain, shoulder pain and pain in his temples as a result.
On 2 August 2023 he made a claim with NRMA for personal injury statutory benefits under Part 3 of the Motor Accident Injuries Act 2017 (the MAI Act). On 31 August 2023, NRMA declined liability for that claim on the basis that the claim was made late. On 15 November 2023, NRMA denied liability to pay for any statutory benefits after the first 26 weeks on the basis that the only injuries he sustained in the accident were threshold injuries and because the claim was made late. NRMA did however concede that the claimant was not at fault in respect of the cause of the accident.
On 27 August 2023, Mr Dinjar made a claim for damages under Part 4 of the MAI Act. As that claim was made before the third anniversary of the accident, it was made on time. On 6 October 2023, Mr Dinjar commenced proceedings in the Personal Injury Commission (the Commission) for the assessment of his damages claim. Those proceedings have been referred to me however because there are medical disputes not yet determined, no action has been taken to progress that assessment.
On 14 December 2023, Mr Dinjar referred to the Commission his statutory benefits claim and the dispute about whether he can make that claim late. The proceedings have been referred to me and I have held two preliminary conferences with the legal representatives of the parties. As the outcome of the late statutory benefits claim dispute would not impact on the damages claim and was not dependent on the outcome of any medical dispute, the parties agreed I should complete the assessment at this time.
LEGISLATIVE FRAMEWORK
Mr Dinjar’s claim is governed by the provisions of the MAI Act. This Act established a scheme of statutory benefits (income support, treatment and care benefits) as well as lump sum compensation for persons injured in motor accidents in New South Wales.
Section 6.12 provides that notice of a statutory benefits claim must be given to the relevant insurer. NRMA agrees it is the relevant insurer and would be liable to pay Mr Dinjar his statutory benefits if the claim had been made on time.
Section 6.13(1) provides that the notice must be given within three months of the date of the accident and the parties agree that the claimant was made on 2 August 2023 and should have been made on or before 19 January 2021.
Section 6.13(3)(a) provides that a claim for statutory benefits may be made more than three months after the accident and before three years after the accident “if the claimant provides a full and satisfactory explanation for the delay in making the claim.”[1]
[1] Claims for statutory benefits made more than three years after the accident require the clamant to have a whole person impairment of greater than 10%. See s 6.13(3)(b).
A definition of “full and satisfactory explanation” is found in s 6.2 as follows:
“(1) For the purposes of this Part, a full and satisfactory explanation by a claimant for non-compliance with a duty or for delay is a full account of the conduct, including the actions, knowledge and belief of the claimant, from the date of the accident until the date of providing the explanation.
(2) The explanation is not a satisfactory explanation unless a reasonable person in the position of the claimant would have failed to have complied with the duty or would have been justified in experiencing the same delay.”
The claimant provided a statement explaining the delay on 6 October 2023 attached to the application. He provided a further statement dated 21 February 2024 in support of the application.
Schedule 2(3)(k) of the MAI Act declares the following to be a miscellaneous claims assessment matter:
“Whether the insurer is entitled to refuse payment of statutory benefits, including statutory benefits for a period before a claim is made, in accordance with section 6.13 (Time for making of claims for statutory benefits).”
In addition, Schedule2(3)(n) declares that any issue of liability for a claim for statutory benefits not otherwise specified is a miscellaneous claims assessment matter. This clearly permits a Member of the Commission to determine whether or not a late claim for statutory benefits can be made.
ISSUES IN DISPUTE
Claimant’s submissions
The claimant’s first submissions dated 29 November 2023 refer at [1] to the fact the accident was a rear-end collision. It was submitted at [2] that Mr Dinjar he saw his general practitioner (GP) the next day and was not advised about making a Compulsory Third Party (CTP) claim.
Mr Dinjar says at [3] he continued to work and was stood down during Covid and while off work his pain decreased and he thought he would recover. When he returned to work however his neck and shoulder pain “intensified”.
The claimant said at [4] he had some pain in his neck before the accident, but he suffered from a different type of pain in his neck and shoulders in the accident. He had imaging studies and was referred to a neurologist who advised in July 2023 that Mr Dinjar needed surgery and it was this that prompted him to seek legal advice as his injuries were more serious than he first thought [5].
The claimant submits at [12] that he has never made a CTP claim, does not have family or friends who have made a CTP claim and at [13] was unaware of the three-month limit to lodge a CTP claim. He was aware of a three-year limitation period to commence proceedings and has referred his damages claim to the Commission in accordance with that limitation period [14].
Mr Dinjar submits at [15] that he “continues to be troubled by the injuries sustained the motor accident … and requires ongoing treatment.”
Insurer’s submissions
The insurer’s submissions in support of the reply dated 18 January 2024 take issue with certain aspects of the application and say the explanation is not full and therefore the satisfactoriness of it cannot be judged.
The insurer notes the application was lodged 33 months after the last date allowed under s 6.13(1).
The insurer noted that the claimant had complained of constant chronic neck and shoulder pain since the date of the accident and should have provided details of the treatment provided to him. The insurer said that a reasonable person in the position of the claimant experiencing such significant pain and working in an insurance firm would have sought information from his doctors or an insurance company and obtained legal advice about his rights and entitlements.
First teleconference
At the first teleconference, I indicated to the parties that I was of the view there were gaps in the claimant’s explanation and there may be additional documents that could be of assistance. The parties sought directions and time to provide additional evidence and submissions.
The issue of the method of assessment was discussed. Ms Horvat said she would like the matter to be assessed “on the appears”. Mr Gorman said that until he saw the documents with the claimant’s final statement and submissions, he would not be able to make a final call on whether the claimant was required to attend a hearing for questioning.
Parties’ further submissions
The claimant lodged further submissions dated 21 February 2024.
He submits at [5] three reasons why he did not consider making a claim within three months:
(a) he did not know of the three-month time limit;
(b) he thought he would recover and would be unaffected by the accident, and
(c) if was not until 2023 when he saw his specialist Dr Scholsem that he realised his symptoms at that time were linked to the accident and it was then that he made his claim.
The claimant submits at [6] there is no evidence anyone gave him advice any earlier about making a claim or told him his beliefs were wrong. He submits at [7] that he thought he had three years to make a claim until his solicitor told him in July 2023 that was incorrect. He says at [8] he did not make a decision to allow the limitation period to expire and at [14] that he never decided to abandon the claim and that his actions were consistent with his beliefs and knowledge.
The claimant acknowledged at [9] that he worked in insurance but only in recoveries and debt recovery for property damage claims. He submitted he had no exposure to personal injury claims or the CTP insurance scheme.
The claimant cites the Court of Appeal decisions Karambelas v Zacnic (2),[2] Figliuzzi v Yonan[3] and a decision of Senior Member Williams of the Commission, Andriotis v Insurance Australia Limited t/as NRMA Insurance.[4]
[2] [2014] NSWCA 433 Karambelas.
[3] [2005] NSWCA 290 Figliuzzi.
[4] [2022] NSWPIC 380.
Mr Dinjar submits at [15] and [16]:
(a) a reasonable person in his position would be justified in seeking legal advice within three years being aware of a three-year limitation period only, and
(b) a reasonable person would have failed to lodge a claim within three months.
In the insurer’s further submissions dated 1 March 2024, the insurer says the pre-accident records reveal a history of previous neck and shoulder symptoms and a post-accident notation suggests the claimant had previous neck pain with pain in the shoulders for more than 20 years. The insurer says a reasonable person in the position of the claimant with those symptoms and with experience in insurance claims would have investigated his rights and entitlements in the short term and pursued them.
Second preliminary conference
At the preliminary teleconference on 25 March 2024 the insurer conceded the explanation was full but maintained that it was not satisfactory.
I drew the parties’ attention to the Court of Appeal’s decision in Dahdah v Witte[5] which referred to the cases and the concept of “a spectrum of reasonable persons”.
[5] [2023] NSWCA 304 Dahdah.
Mr Gorman advised his client did not wish to question the claimant, neither party wished to make any further submissions, and the parties requested the dispute could be assessed on the papers.
REVIEW OF THE EVIDENCE
Application for Personal Injury Benefits
The claim form was signed as true and correct and dated 1 August 2023.
The claimant said at section [1] he had never made a third-party claim before. At section [3] he says on the day of the accident he telephoned the police but they did not want to come out and he recently attended Bass Hill police station, but they were not interested.[6]
[6] At the first preliminary conference, the insurer confirmed there was no issue with the accident verification requirements set out in ss 6.8 and 6.9 of the MAI Act.
The claimant described the accident as follows:
“I occupied the second lane … on the Horsley Drive … when I noticed that all the vehicles up ahead were slowing down and had come to a stop. I braked and came to a complete stop – with perhaps a 2-metre gap between the vehicle in front of me. I heard a loud muffler on the vehicle behind me then looked in my rear vision mirror and realised that this vehicle was moving very fast with no likelihood of stopping. I braced [emphasis added by the clamant] myself for the inevitable crash into my rear. The vehicle behind me hit me in the rear with great force, which shunted my vehicle into the rear of the car that was in front of mine.”
Mr Dinjar then goes on to describe his injuries:
“Within a few hours of the incident, I felt a pain in my neck. The following day it was much worse. I then went to the Bankstown Centre on the following day:
-I have constant neck pain on both sides;
-I have constant shoulder pain on both sides;
-I have constant pain in my temple region in the cranial area;
-I have pain in areas which I have never had before the accident, and
-I also have an injury at C6/7 cirvical [sic] area which only appeared post-accident.”
The claimant provided details of the names of the drivers and registration number of two other vehicles.
His explanation dated 2 August 2023 for making the claim late was set out in the clam form as:
“I only recently became aware that my condition is related to the accident which caused me to see a solicitor.”
In answer to the question about previous injuries and illnesses, the claimant says:
“Some pain in neck and shoulder for perhaps 15 – 20 years before this injury. There was a pre-existing condition in my cervical spinal area that was manageable and only flared up occasionally. Since this last incident, the pain in my neck, head and shoulders is continual and of a much greater magnitude [emphasis added by the claimant]. I have copies of pre and post-accident scans / report. My medical specialist Dr Martin Scholsem also retains copies of such scans.”
The claimant discloses that he has been away from work and says his last day was 28 July 2023 and that he has “taken numerous sick and annual leave days due to illness and pain arising from this accident.”
Mr Dinjar identified his occupation as “Insurance recoveries/claims” and that his current employer is the Coverforce Group Pty Limited.
The first certificate of capacity was completed by Dr Mohammad Abdullah of Bankstown on 26 July 2023. He records a sudden hit from behind and that, “has had neck pain and being treated by a neurologist since 2015, the pain aggravated after MVA since 2020.”
Claimant’s first statement
The claimant’s next explanation (after the claim form) was given by way of a statement dated 6 October 2023. The claimant says:
(a) 33 years ago, he injured his lower back at the L4/5 level while skiing and had laminectomy in about 1992. He then says 12-13 years ago he developed chronic back pain and had surgery at the L3/4 level in 2010. He said he got better after that and had occasional lower back pain which did not interfere with his work [4];
(b) Mr Dinjar said that before the accident he had “bilateral shoulder and intermittent neck pain” [5] and that he used to see the GP every two to three months, he had physiotherapy which gave him temporary pain relief [6]. Mr Dinjar said he used Voltaren and Nurofen but “never used opioids to manage my pain symptoms” apart from the L3/4 2010 condition [7];
(c) in 2015-2016 he says he had a flare up of “upper back pain” and saw a neurosurgeon and had an MRI scan and advised him surgery was not necessary [8]. Mr Dinjar says he next saw the neurosurgeon in May 2023 [9];
(d) at [11]-[15] he describes the accident consistently with the history in the claim form and at [16] says he had pain in his neck and shoulders “immediately upon impact.”;
(e) the claimant says the next day he woke up with even more pain and saw Dr Islam and reported the accident and his injuries [17]. He says Dr Island did not mention making a compensation claim [18];
(f) Mr Dinjar described that he had more intense pain for a few weeks then subsided and he had pain and discomfort but not as bad. When it flared up again the saw his GP and managed the pain with Voltaren [19]. No detail is given of the date of this flare-up;
(g) he said at [20] the pain and discomfort “continued to significantly bother me up until sometime in 2021” when he was put off work due to Covid. At this time he was only bothered by “moderate pain” and he thought he would get better;
(h) when he returned to work the pain in his neck and shoulder “intensified” [21] and has not improved since then [22];
(i) Mr Dinjar says he saw his GP about four months earlier, was referred for scans [23] and saw Dr Scholsem in July 2023 and that doctor recommended a discectomy and fusion at C6/7 [24];
(j) Mr Dinjar says at [25] that “since the accident, I have suffered from chronic neck pain, albeit to varying degrees as well as chronic bilateral shoulder pain” and at [26] “I was not like this before the accident.” He says his neck pain before the accident was intermittent as was his shoulder pain managed with over-the-counter medication and which did not interfere with his work or daily activities [27] and [28];
(k) the claimant says that since the accident he has pain in areas he has never experienced pain in before and that he has sleepless nights [29]. He says the pain since the accident is different and is more debilitating. Mr Dinjar says he now has to take Endone. He acknowledges he was taking antidepressants for 10 years but says his depressive condition has got worse [32];
(l) Mr Dinjar says at [36] that he and his wife had never made a third-party claim before or had family and friends who have made a claim, and
(m) he also says at [36] “I was aware that I had a right to make a CTP claim” but says he was unaware of the limitation periods. At [37] he says he only knew about a “three-year limitation period to commence proceedings”.
Mr Dinjar’s second statement is dated 21 February 2024. The claimant says:
(a) he left school in 1981 [4], completed courses in insurance [5] and enrolled in a law degree [6] completing legal institutions and contract law only;
(b) he recalls now he had a cortisone injection in 2015 from Dr Scholsem [7];
(c) his son is a family lawyer and has never practised personal injury law [9];
(d) from 2013 to 2019 he worked as a claims recovery specialist for property damage claims for machinery and equipment “caused by the negligence of third parties”, he did not work in personal injury claims [10]-[15];
(e) in 2019 he worked at another firm for recoveries and settlements of property damage motor vehicle claims and in early 2020 he worked again for an insurance agency [16]-[18];
(f) in 2020 before his collision, he went to a meeting between a solicitor and the son of a friend who had been injured in a car accident. He recalls the solicitor saying an injured person had three years to make a claim and could make a claim at any time in that three years [20];
(g) he had a low-speed accident in June 2020 but he “didn’t sustain any neck or spinal repercussions from this accident. I consulted by GP out of concern for my neck” [21];
(h) that the pain he felt after the accident “which was more than usual” persisted for about two weeks [24]. He says at [25] that his pain gradually subsided and he decided he did not need to consult his GP and took Voltaren to manage his pain and the pain got better and better;
(i) he started work in a new job also in property damage motor vehicle claim in mid-2021 and he worked form home five days a week for nine months [31]. When he had pain in his neck, back and shoulders he would lie down;
(j) his neck pain returned slowly after he transitioned back to work in April 2022 [33] and in June 2022 he resigned [36];
(k) he did not go to doctors much during 2020 and 2021 due to Covid lockdowns [35];
(l) between 2021 and 2022 there was always pain in his neck and shoulders but never as intense as it reached in 2023 [40]. He thought he had to endure it until “it incrementally got worse.”;
(m) between 2022 and 2023 he saw his GP regularly particularly if he needed a medical certificate or pain prescriptions [41]. In August 2023 he was prescribed Endone [43] and due to the increasing pain he went to see Dr Scholsem who said his accident may have been the reason for the increasing pain [44], and
(n) it was then that he “realised that the accident is the cause of the increasing pain in my neck and shoulders” [45]. He asked his son about the limitation period and arranged to see his current lawyers.
Medical records
Dr Scholsem – neurologist
Letters from Dr Scholsem to the claimant’s GP have been provided. The first is dated 26 August 2015 and records a “long history of low back and cervical pain,” two lots of disc surgery (L4/5 and L3/4) and neck pain “more than 20 years which is slowly getting worse”. Pain was said to increase if he does too much and triggers occipital neuralgia which is very intense at the base of the neck and back of shoulder blades and occasionally down the back of both arms. Mr Dinjar was reported to have had a few episodes of pins and needles in a C7 distribution. Dr Scholsem also notes:
(a) the claimant was taking two to four tablets of Panadol with Codeine;
(b) he had muscle spasm, no motor or sensory deficit, reflexes were present and symmetrical;
(c) he had C6/7 disc disease which explains the pain, and
(d) he prescribed Lyrica and arranged an MRI and bone scan.
In his second letter, dated 15 September 2015 Dr Scholsem reports the claimant was said to be “still struggling with intense neck pain without any pain in the upper limbs” although Mr Dinjar reports pain in both shoulder blades and back of the head “as soon as he does any sort of manual work the pain becomes very intense.” The claimant was taking four Panadeine Forte tablets every day and he was advised to increase the Lyrica and have CT guided facet joint injections.
As at 11 April 2016, there was no real improvement and “constant neck pain.” The claimant had recently broken his leg and was working from home which helped. The claimant denied upper limb pain but struggled at night. The Lyrica was not working, and the claimant was given a script for Targin and Endone.
Dr Scholsem said in his letter of 14 June 2023 says that the claimant’s “pain remained relatively stable until a few years ago when he was rear ended by another car and suffered a whiplash syndrome.” He also says:
(a) the quality of his life has been severely impacted;
(b) he has pain on both sides of neck radiating to the back of the shoulder blade and back of the arm with occipital neuralgia;
(c) he was taking Voltaren, had tried Lyrica which did not help, Tramadol gave him bad side effects and Endone was the only thing which worked;
(d) there was disc desiccation with bone on bone at C6/7 with mild foraminal stenosis and a bulge at C4-5 with foraminal stenosis at C3/4, and
(e) surgery was a possibility.
On 17 July 2023 in a letter to Dr Islam, Dr Scholsem said it was hard to tell where the pain was coming from but suggests C6/7 surgery. On 21 July 2023 he gave Mr Dinjar a script for Endone and said he may need to see a pain specialist
In a letter dated 4 October 2023 it was reported the Endone worked and he was trialling medicinal cannabis.
Bankstown doctors
The insurer has obtained records from the claimant’s GP which include the following entries relevant to his physical injuries and conditions:
(a) 17 October 2010 – the claimant wanted Endone for back pain which was declined;
(b) 29 April 2014 – the claimant reported a flare up of back pain and Panadeine Forte was prescribed;
(c) 16 July 2018 – Mr Dinjar reported “cervical spine, down the scapula region – has seen a neurosurgeon and lower back pain – off work” and Panadeine Forte was given;
(d) 15 October 2018 – the claimant said he was “digging in garden yesterday” and had pain in the scapular area on both sides and was given time off work and Endone was prescribed;
(e) 28 November 2018 – stress at work at an insurance company was noted an there is reference to Cymbalta (an antidepressant) being prescribed which he had been taking for five years;
(f) 3 January 2019 – the claimant said he feels much better as he “saw his regular GP and gave one month off”. The claimant had gone to work and needed clearance and was said to be using Valium;
(g) 6 March 2019 – Mr Dinjar reported depression anxiety and was tender around the trapezius but had a full range of motion neck and back. More Valium was prescribed and there were further similar attendances;
(h) 25 November 2019 – the claimant said he “feels pain upper back and neck. Says he has cervical disc prolapse”. Mr Dinjar said he could not take anti-inflammatories as they caused high blood pressure and cannot take Tramadol as it causes nausea. He wanted strong pain killers and Prodeine extra was prescribed as well as Cymbalta;
(i) 19 June 2020 – the claimant attended and this history is noted:
“Today one car stopped suddenly in front of his car and he also stopped then front car reversed [and] hit his car. He was the driver and jarred his neck. He has already chronic neck problem now mild lower neck pain. Not tender, no restriction movement but hyper extension cause mild pain – review tests tomorrow”;
(j) 5 September 2020 – the claimant reported having pain in the back of his neck radiating to the left shoulder and needed medication. Panadeine Forte was prescribed as well as Cymbalta;
(k) 29 September 2020 – the claimant said he had shoulder pain in both his shoulders and was unable to work;
(l) 19 October 2020 – Mr Dinjar attended complaining of “neck pain following sudden hit by a car from behind yesterday … no loss of consciousness, headache.” Voltaren and Panadol were recommended;
(m) 20 January 2021 – the note suggests the claimant was well but had attended Dr Islam for medication (high blood pressure, Cymbalta, antacid, Voltaren EC) and a referral was given for blood tests;
(n) on 11 February and 27 May 2021, the claimant attended his GP to discuss the blood test results and for further scripts of medication for high blood pressure, antacid and depression, but not for pain killers;
(o) 13 September 2021 – the claimant was said to need a medical certificate for left shoulder and neck pain “wake up with this pain and unable to go to work” – a medical certificate was given and Voltaren EC was prescribed;
(p) on 28 February and 1 March 2022 the claimant attended for multiple issues not accident related and medication was given;
(q) 15 August 2022 – neck pain radiating to both arms – was under treatment of a neurosurgeon, today neck pain and sleep disturbance. Physiotherapy recommended and Osteomol prescribed. The claimant attended the next day with tiredness and four prolapsed discs were mentioned;
(r) 12 September 2022 – the claimant wanted a medical certificate to avoid jury duty which he said was due to pain and the claimant was advised to “follow up with his usual GP for his neck issues”;
(s) On 10 October, 3 November and 28 November the claimant attended for unrelated conditions;
(t) 9 December 2022 – the claimant saw Dr Loo who took a history of 15-20 years of right more than left shoulder and neck pain and she states, “no history of trauma unable to recall any specific injury”, and Mobic was prescribed. There was an unrelated telehealth consultation on 12 December 2022;
(u) 16 January 2023 – Dr Islam saw the claimant and noted he was well but had a painful right side of the neck following housework – “all range of motion present in both shoulder.” A medical certificate and Voltaren was given;
(v) 14 March 2023 – the claimant saw Dr Islam for alcohol issues and neck pain and left shoulder or scapular pain. The claimant was given a referral to Dr Scholsem, a medical certificate but no medication other than his antidepressant was prescribed. An apparently unrelated consultation occurred with Dr Loo on 17 March 2023;
(w) 23 March 2023 – the claimant saw Dr Islam and a nurse at the practice for the purposes of developing a care plan involving physiotherapy and Dr Scholsem for neck pain with referring arm and shoulder pain;
(x) 31 March 2023 – physiotherapy with Andrew Huynh was provided at the centre. The claimant is reported to have neck pain and interscapular pain and headaches and occasional neural pain down into his shoulders. The onset of this was said to be 20 years ago and a disc injury in his 20s, “stiff thoracic spine – lacking extension and rotation weak scapular – review in a week”;
(y) 5 April 2023 – physiotherapy with Andrew Huynh the claimant reported some soreness but was now feeling slightly better – he still had a stiff thoracic spine and weak scapular;
(z) 11 April 2023 – Dr Islam notes the claimant was having physiotherapy and acupuncture and there were two further attendances for physiotherapy at the practice on 12 and 19 April 2023;
(aa) 28 April 2023 – the claimant saw Dr Khan for other issues but requested a CT scan before he saw Dr Scholsem;
(bb) 10 May 2023 – the claimant attended on Dr Islan for “bilateral neck pain” and was given a medical certificate, a referral for an MRI and a script for Panadeine Forte given. On 24 May 2023 the MRI of the cervical spine was discussed, and it was noted the claimant was to see his neurologist (presumably Dr Scholsem) on 6 June;
(cc) 29 May 2023 – the claimant saw Dr Abdullah and requested a medical certificate for neck pain and right shoulder pain which was given, and on 31 May 2023 Mr Dinjar again saw Dr Abdullah and was given another medical certificate and a script for Valium. The claimant said he had an appointment with his neurologist on 14 June 2023 and his sleep was disturbed;
(dd) 1 June 2023 – Dr Islam notes that for the last three days Mr Dinjar’s right side of the neck and shoulder was painful and his neck movements were moderately restricted. A referral for MRI and a medical certificate was given;
(ee) 27 June 2023 – the claimant attended on Dr Khan who noted the claimant had seen his neurosurgeon who had advised him to have surgery which he does not want. He said he was told to see his GP to Dr Khan advised the claimant to see his regular GP (presumably Dr Islam) for it;
(ff) 5 July 2023 – Dr Islam records the claimant was seeing a specialist and was not able to tolerate Lyrica or Tramadol. There was mild restriction of neck movements but no sensory impairments. Dr Islam prescribed Targin;
(gg) 19 July 2023, the claimant saw Dr Islam at 10.32am and was said to be well but having neck pain and needed pain killers. Dr Islam records, “Targin only very demanding [advised] to see his specialist for Endone or other S8 painkillers”. At 11.19am the claimant saw Dr Abdullah who records:
“for CTP claim as had MVA in Oct 2020. He attended the day of accident only one time to me, then he has been attending regularly to Dr Islam – advised to go to regular GP.”
(hh) 20 July 2023 – Dr Islam spoke with the claimant via telehealth as Mr Dinjar wanted a Targin script;
(ii) 26 July 2023 – Dr Abdullah reported under a heading “History: for first time CTP worker compensation claimed:
“pain in the neck radiating to shoulder both side but worse on the left also radiating to the head since 12 month, also radiating to front of upper chest … working in an insurance [company], was physio but no improvement, has been treating by a neurologist since May 2023 and 17 July 2023. He has also treated him for the same neck pain and shoulder in 2015 and 2016 aggravated the pain of neck following MVA rear ended by another car.”
On examination Dr Abdullah records that Mr Dinjar’s neck was not swollen and there was no wasting of muscles, and all movements were normal except it was painful “on the right side”. In the arms and forearms there was also no wasting of muscles and power, tone and reflexes were said to be normal;
(jj) 8 August 2023 – the claimant saw Dr Abdullah with “neck pain worse on sitting on chair difficulties to work in sitting position.” The pain was said to be “little bit improved on rest for two weeks now 8/10” and a medical certificate for the claim was given;
(kk) 17 August 2023 – Dr Hussain records that Mr Dinjar had been “having a painful neck and shoulder since 20 years but recently is very painful”;
(ll) 21 August 2023 – Dr Hussain saw the claimant again who was “having pain in the neck and lower back”;
(mm) 23 August 2023 – the claimant saw Dr Abdullah who records that Mr Dinjar’s neck pain had improved and that the claimant would return to pre-injury duties the next day;
(nn) 27 October 2023 – the claimant saw Dr Awal who prescribed Panadeine Forte and records:
“Chronic neck pain aggravated yesterday – saw neurosurgeon recently waiting for surgery discectomy – need analgesic - pain radiating to upper shoulder - asking for Endone / Targin – explained need to see pain specialist - advised to discuss with neurosurgeon about option to manage pain.”
The claimant has not identified any other GP but noted that the GP he saw in 2015 and 2016 is no longer in practice.
CONSIDERATION OF THE ISSUES
The claimant’s submissions identify three reasons why his claim for statutory benefits was made late:
(a) he was unaware of the three-month time limit;
(b) he thought he was going to recover, and
(c) it was not until July 2023 when he saw Dr Scholsem that he connected his escalating symptoms to the car accident.
The explanation – what the claimant knew
In his first statement the claimant says at [36] he always knew he had the right to make a claim. He also says at [37] is that he knew there was a three-year limit on commencing court proceedings, but he was unaware of any other time limit. That suggests he was unaware of the time limits surrounding a claim.
This is somewhat inconsistent with his second statement in which he provides at [20] details of a meeting with a solicitor before his car accident and hearing that an injured person had three years to make a claim. While there is scant detail about this meeting, the insurer has not sought to question the claimant about it.
I accept therefore that the claimant knew he could make a claim for injuries sustained in a motor accident but that he thought he had three years to make or pursue that claim.
The explanation – he thought he would recover
The claimant concedes he has a lengthy history of neck and shoulder pain before the accident. His GP notes and the records of Dr Scholsem confirm this.
The claimant said in his first statement at [16] he had immediate neck and back pain, and it was worse the next day [17] and severely affected him for a few weeks [19]. The claimant said at [19] in the first statement that his neck pain subsided after the accident. This acute pain and subsidence is supported by the GP records as there were no further accident related attendances after 19 October 2020 until 20 January 2021.
The claimant says his symptoms flared up again [19] and he returned to his GP. He does not identify the date of this flare up. This could be at a time that corresponds with the 20 January 2021 attendance, or it could be the next relevant attendance in September 2021.
In paragraphs [25] and [26] of his second statement, the claimant reports that the pain from the accident subsided and then got better and better so he decided not to see his GP again. He said at [27] he thought his pain would settle and he could manage with tolerable pain. This is also supported by the GP records as there is an absence of attendances on his GP for neck and shoulder pain from 20 January to 13 September 2021 when the condition appears to have flared up again and then a further absence in the records from 13 September 2021 until 15 August 2022.
In his second statement the claimant says at [35] his non-attendance on his GP in 2020 to 2021 was because of the Covid lockdowns. I note medical practitioners were providing telehealth consultations at this time. I also note the 2020 lockdown and restrictions were imposed from March to July (before the claimant’s car accident) and that the 2021 lockdowns and restrictions were in effect from July to October 2021.
I accept the claimant’s evidence that his neck and shoulder symptoms subsided after the initial acute injury phase and settled. The claimant offers as one of the reasons for the delay in making his claim that he thought he would recover. When the records from his GP are considered as a whole, it appears that the claimant did recover from the immediate and worsened neck and shoulder pain soon after the accident.
The explanation – a link is made between the accident and the worsening complaints
In his claim form the claimant refers to continual pain in his neck, head and shoulder which is of “much greater magnitude” than before the accident.
At [25] of the first statement the claimant says his pain has been constant and chronic albeit varying as well as having constant shoulder pain and at [26] that he was not like this before the accident.
He says at [27] and [28] before the accident his pains were intermittent and manageable and did not interfere with work. He says at [29]-[32] that since the accident his pains are constant and in areas that he has never had pain in before, he has had to take stronger medication and take a lot of time off work.
Mr Dinjar in his claim form and [27]-[33] of his first statement, makes it quite clear that there was a connection between the accident and his current state with worsening, chronic, varying and more debilitating neck pain and shoulder pain since the accident. He has also emphasised that the pain he experienced after the accident was different to the pain he experienced before the accident.
He said in his first statement at [21] that he has only been able to manage his pain with Endone, yet it appears that Endone and other strong pain killers such as Panadeine Forte and Targin were not prescribed until mid-2023. Before that the claimant was taking Voltaren or what appear to be other over-the-counter medications.
Mr Dinjar says he has had much time off work since the accident, but from his GP records while there were a handful of medical certificates given in the first two years after the accident, the bulk of the medical certificates and time off work occurred in 2023.
Mr Dinjar’s pattern of attendance at the GP reveals five related attendances after the accident and before the end of 2022, and 23 attendances in 2023.
I do not accept that the claimant’s alleged worsening, chronic, different and more debilitating symptoms commenced immediately after the accident. The evidence suggests that the claimant’s neck and shoulder symptoms worsened in or around the end of 2022 or early 2023 with a different level of medical attention, more time off work and a change in his medication. It appears that it was only then that Mr Dinjar experienced the neck and shoulder symptoms that he had not experienced before at a level that he had not experienced before.
Is the claimant’s explanation satisfactory?
The definition in s 6.2 requires an evaluation of the injured person’s explanation, with reference to an objective standard, to determine whether the delay experienced by the particular injured person was justifiable. As Karambelas determined, the delay in this case is the period of time that the claim was late, that is from 20 December 2020 to 2 August 2023.
The Court in Hunter v Roberts[7] held at [18]:
“The relevant test directs attention to whether a hypothetical reasonable person ‘in the [applicant’s] position’ would have experienced the same delay. … As Hodgson JA (dissenting …) emphasised in Russo v Aiello at [17] there is ‘a substantial spectrum of reasonableness’ and accordingly ‘it is sufficient that there is a hypothetical person within that spectrum who would have experienced the same delay’. The test does not require a claimant to establish that all ‘reasonable’ persons within that spectrum would have experienced the same delay.”
[7] [2019] NSWCA 116.
The court in Dahdah followed that reasoning and doubted the decision of Figiluzzi and said at [65] “that there is a spectrum of reasonable persons and it is sufficient that there is one hypothetical person within that spectrum who would have experienced the same delay.”
If the claimant’s only explanation for the delay was his mistaken belief that he had three years to make a claim, it is my view that explanation would be satisfactory. In the light of the meeting he had with a personal injury solicitor before the accident, and his recollection of what he heard at that meeting, a reasonable person might not have pursued a claim within three months of the accident. I do not accept the insurer’s argument that because Mr Dinjar was involved in the insurance industry, he would have a greater level of understanding than those within the spectrum of reasonable people, particularly in an area of insurance he says he had nothing to do with.
If I had accepted that from the day of the accident the claimant’s pain in his neck, shoulders and head was different to his pre-accident pain and that this pain was in different areas and of a greater magnitude continuously until August 2023 then I would be unlikely to have allowed Mr Dinjar to make his claim so late. It would have been my view that a reasonable person who had such different and greater pain and who was aware of the right to make a claim would have investigated that claim and his entitlements long before August 2023.
However, I have not accepted that the medical records establish that the claimant’s pain has been different, continual and of greater magnitude since the day of the accident. I have expressed the view that the significant variation or difference or alteration in pain does not appear to have occurred until late 2022 or early 2023, more than two years after the accident.
In the light of the claimant’s apparent recovery from acute symptoms and a return to what appears to be a pattern of complaints to his doctors similar to that which occurred before the accident, I am of the view that a reasonable person with a 15-20 year history of similar symptoms would have been justified in not pursuing a claim before the considerable worsening at the end of 2022 and further into 2023. A reasonable person is likely to have considered that what he was experiencing for the first two years after the accident was a continuation of what he was experiencing before the accident.
What appears to have been the catalyst for the claimant contemplating a claim was the increasing pain which appears to have started in early 2023 and the opinion of Dr Scholsem in July 2023 that this increasing pain may have had something to do with the accident. In my view a reasonable person in the possession of that knowledge would have taken action, which the claimant then did. He spoke to his son (a lawyer), engaged Penrose Lawyers and promptly lodged a claim.
CONCLUSION AND COSTS
As the insurer has conceded the claimant’s explanation for his late statutory benefits claim is full and I have found the claimant’s explanation is satisfactory, it follows that Mr Dinjar can make his claim and recover statutory benefits in accordance with Part 3 of the MAI Act.
As Mr Dinjar’s accident occurred before 1 April 2023, Regulation 8A of the Motor Accident Regulation 2017 does not apply and, in accordance with s 6.13(2), NRMA does not have to pay weekly statutory benefits before 2 August 2023 when the claim was made.
In messages left in the Commission’s electronic file on 15 April 2024:
(a) the claimant’s solicitor sought the maximum amount of regulated legal costs in respect of the dispute; and
(b) the insurer advised agreed the claimant was entitled to costs regardless of the outcome of the dispute and that the maximum allowable under the Motor Accident Injuries Regulation 2017 could be awarded.
In accordance with Schedule 1, Part 1, clause 3, the maximum amount for a declared miscellaneous claims assessment matter is 16 monetary units. As a monetary unit is the equivalent of $119.96, the maximum costs available under the regulation is $1,919.
I have considered the amount of work done by the claimant’s solicitors in respect of this dispute. This has included preparing the application and supporting documents, drafting submissions, obtaining a further lengthy statement from the claimant and attending the teleconference. In my view the costs incurred would be likely greater than the maximum sum that can be recovered and that therefore the sum of $1,919 should be allowed. To that must be added GST of $191.90.
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