Fakhreddine v Allianz Australia Insurance Limited
[2025] NSWPIC 160
•20 April 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Fakhreddine v Allianz Australia Insurance Limited [2025] NSWPIC 160 |
| CLAIMANT: | Sam Hussein Fakhreddine |
| INSURER: | Allianz Australia Insurance Limited |
| MEMBER: | David Ford |
| DATE OF DECISION: | 20 April 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accidents Compensation Act 1999; claims assessment dispute; amount of damages to be paid to the claimant under section 94(5); self-employed concreter; driver of a motor vehicle involved in a collision with the insured vehicle; claimant suffered soft tissue injuries to cervical spine, right limb and left shoulder; lumbar spine also suffered from a persistent depressive disorder; claimant also involved in a subsequent motor vehicle accident in May 2018 where he sustained injuries to his right shoulder and right wrist; no common law claim for damages made in respect of this later accident as the injuries were non threshold; submitted since the accident he suffered a diminution in earning capacity; liability admitted; claim for past and future economic loss; past and future treatment; past and future care; Held – claimant is entitled to damages for past economic loss and past treatment expenses. |
| DETERMINATIONS MADE: | CERTIFICATE Issued under section 94(5) of the Motor Accidents Compensation Act 1999 Assessment of Claim for Damages made in accordance with section 94 of the Act. On the issue of liability for the claim, Allianz’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,1. Under sub-sections 94(3) and 94(4) of the Motor Accidents Compensation Act 1999 (the Act} I specify the amount of damages for this claim as $27,685.2. 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 Act are the regulated costs. 3. The claimant’s economic loss was reduced by, and the insurer is to have credit for the sum of $ nil, in accordance with s.130 of the Act. 4. Attached to this certificate are reasons for my assessment.5. This certificate was issued on 22 April 2025.6. |
STATEMENT OF REASONS
Issued under Section 94(5) of the Motor Accidents Compensation Act 1999.
.
INTRODUCTION
An assessment of the claim where the insurer, having wholly accepted liability for the claim, and the amount of damages for that liability. The section 81 notice is dated 10 August 2019.
On 10 February 2017, the claimant was driving his motor vehicle on Bestic St at Rockdale, when the motor vehicle being driven by the insured driver, attempted to turn right into Bestic St, failed to give way to the claimant’s vehicle, resulting in a collision between both vehicles.
An ambulance did not attend the scene of the accident, and the claimant was able to walk to his home which was nearby. In the submissions dated 13 May 2024, it is submitted the claimant suffered chronic non-specific cervical pain, stiffness and discomfort, with associated non-specific upper right limb sensory symptomology and associated recurrent cervicogenic tension headaches, secondary to an acute musculoligamentous strain. Secondly, it is submitted he suffered a chronic right shoulder impingement syndrome, secondary to an acute rotator cuff tendon strain. Thirdly, he suffered soft tissue injuries to his left shoulder lumbar spine and thoracic spine which are now resolved. Fourthly, it is submitted he suffers from a persistent depressive disorder.
The claimant consulted his general practitioner Dr Chung on 17 March 2017 because of continuing pain and he commenced physiotherapy sessions. At that time, he complained of symptoms of neck discomfort, right deltoid and numbness in his hands, with poor sleep.
On 4 May 2017, he again consulted his general practitioner, Dr Chung who noted there had been improvement with no impairment to locomotion. It is submitted by the insurer the claimant's last accident medical treatment was with Dr Chung in May 2017. He again saw Dr Chung on one further occasion in July 2017 to obtain the personal injury claim form medical certificate.
On 25 May 2018, the claimant was involved in a subsequent motor vehicle accident in which he sustained injuries to his right shoulder and right wrist. On this occasion an ambulance did attend the scene. He required subsequent medical attention with Dr Vo. There was no common law claim for damages made in respect of this accident as the injuries were non threshold as defined in the provisions of the Motor Accident Injuries Act 2017.
The claimant was born in 1977 and is presently 47 years of age. He works in the concreting industry and, at the time of the accident, was the sole director and shareholder of Concrete Blitz Pty limited, which was incorporated in July 2011. It is submitted he worked 6 days a week as a sole trader and it is further submitted, since the accident he has suffered a diminution in earning capacity.
On 4 May 2017, he registered a new company Concrete Blitz Services Pty Ltd. He applied for voluntary deregistration of his previous company Concrete Blitz Pty Ltd on 12 July 2017.
There are detailed submissions from both parties regarding the claim for both past and future economic loss. It was conceded by counsel for the claimant at the assessment conference, the claimant had not made any contributions to superannuation funds, both prior and post-accident, and accordingly the claim for past and future superannuation was withdrawn.
10.Accordingly, the claim comes before me solely to assess damages
OUTLINE ISSUES IN DISPUTE
11.The following issues have arisen in this matter.
a. Past treatment expenses.
b. Future treatment expenses
c. Past economic loss
d. Future economic loss
e. Past gratuitous care.
e. Future domestic care
12. The main issues requiring my determination are as follows
a. To what extent, if at all, have the claimant’s injuries and ongoing disabilities resulted in the claimant suffering a diminution in his ability to earn an income from the date of the accident up until the present time and for the remainder of his working life.
b. To what extent, if at all, have the claimant’s care needs increased as a result of the injuries caused by the accident and,
c. What is the entitlement to damages which flow from the findings of the above issues.
DOCUMENTS CONSIDERED
13.I have considered the documents provided in the application and reply, and any further information provided by the parties.
SUBMISSIONS MADE BY THE CLAIMANT
14.At the assessment conference, the claimant stated, prior to the accident, he had never received treatment from a psychiatrist or psychologist and had never suffered panic attacks. He first joined a gymnasium in 2004 but had only attended the gymnasium on 4 occasions after the accident. He confirmed prior to the accident, he had injured his right knee, but he stated his issues with his back had resolved. On occasions, he now suffers from panic attacks, which he states places pressure on his heart and results in shortness of breath. These attacks can last between 5-6 hours which render him incapacitated for at least three days. He spends most of his work, at the present time, on computer and tendering. He suffers from bad pain in the right shoulder. He is no longer a” hands on “concreter” and he further stated he now feels disabled. When questioned by counsel for the insurer, he denied any back problems prior to the accident
15.In his personal injury claim form, his injuries are described in the medical certificate on page 11, as being” neck pain and numbness in arms “. On page 8, of the claim form, he lists injuries to his neck, back and arms, right and left.
16.In the reports from OZ physiotherapy, it is recorded on 13 March 2017, he was complaining of painful ache across the lower back and into the right buttocks area. On 21 March 2017, he was still experiencing extreme pain in the lower back, and on 27 March 2017, was complaining of lack of sleep, because of sharp pain in the neck and painful ache down the arms, as well as tight bilateral upper trapezius muscles. These symptoms continued for several weeks, and on 8 May 2017, he was feeling better in neck and arms, less down the arms, but complaining of pain in the right shoulder also complaining of tight bilateral upper trapezius muscles.
17.It is recorded on 23 May 2017, because of his injuries, he has not been able to return to full duties at work, currently doing tendering and office work and overseeing simple jobs. On 3 October 2017, it is recorded his neck is better, but the shoulder is bothering him especially when he uses it for everyday things like reaching into a cupboard and into the wardrobe. On 27 November 2017, it is recorded he is still on modified duties at work but does site visits but cannot drive longer than 30 minutes in one sitting. Complaints of right shoulder pain are recorded in February 2018, and on 1 March 2018, it is recorded he had a" really bad” flare up of the lower back.
18.I refer to the statement of the claimant dated 1 May 2024. I note the following paragraphs
“12. After I incorporated, Concrete Blitz Pty Ltd, I started to engage more and more subcontractors, as my business had grown over time, and I felt that I couldn't keep up with the demands of the work myself. I had always used subcontractors on occasion, but I felt like I needed to do this more and more. I continued the work which I was doing as a sole trader. After, I was still doing the physical work as well as being responsible for getting the jobs I was carrying out. I would then determine whether I needed help for a job or part of a job.
13. In the 2 years preceding the accident (2015 and 2016) I drew monies from the company through a debt shareholder loan account (in lieu of wages}.
15. At the time of the accident, I was running my own company Concrete Blitz Services Pty Ltd. I incorporated this entity on 9 May 2017. I was the sole director and shareholder. I did phone work, concreting work, steel fixing and I was involved in plant operations such as driving a bobcat and excavators. I worked on average 6 days per week 70- 80 hours per week. I did heavy physical work such as lifting and moving heavy constructions materials weighing in excess of 25-30 kg my work included repetitive bending and twisting of my lower and upper back, use of hand tools and power tools, repetitive heavy pulling and pushing, frequent overhead work and walking on uneven ground. I would drive anywhere the work site was. These were the duties I had always carried out in my work since I started as a sole trader. It was only after the accident, that I ceased working in the physical role and commenced a more hands off role. At times I have continued to work in the physical role, however, I experienced quite severe pain my right shoulder when I do so. I find it flares up after I attempt to do a long day's work, as such. since the accident, I have had to mostly refer the jobs that I've been able to obtain to other contractors and try and take a small percentage of the profit margin of the job.”
16. From September 2023 Concrete Blitz services was able to get on to the vendor panel with the Waverley Council. That has resulted in Concrete Blitz Services, obtaining tender by tender jobs. This has taken me some years to achieve, and although I performed the work from time to time physically, mostly I have subcontractors to do the work. Again, I still persist persevere to try and work physically, but it is difficult, both as a result of my right shoulder and my neck, although my neck is more painful. When I sleep, I find that when I do work physically, I have flare ups
17. I have also found that I become lethargic and lack the motivation and discipline to network and obtain work like I was able to before the accident. I have explained how I felt and become as a person as result of the accident further below. I do feel like the changes in me from the accident have affected my ability to carry out the business side of the job, as well as the physical side.
32. Since the accident, I have returned to work on a limited basis usually about one to two days per week. I work up to 10 hours per week I can engage in very limited physical work and my role is predominantly that of a supervisor.
41. I was also involved in a motor vehicle accident in 2018. I never made a claim for this accident. My wife was in the car at the time of the accident, and to the best of my knowledge, she has never made a claim either. I did not make a claim because I did not suffer any injuries as a result of this accident.
19.The solicitor for the claimant arranged for him to be examined by Dr Barold , and I refer to his report dated 7 March 2018. He lists numerous complaints made by the claimant regarding his injuries and ongoing disabilities on page 3 of his report. On page 5 of his report, he notes the following,
“There was full pain free range of movement in both right and left shoulders, elbows and forearms.”
On page 6 of his report, he notes the following
“Mr Fakhreddine suffered mechanical strain injury to the neck with radiating pain into the right trapezius and shoulder as well as secondary aggravation of pre-existing low back condition in a motor vehicle accident on 10 February 2017. Treatment has been conservative and although rather sporadic, has been appropriate. He does, however, continue to experience disability and impairment which have diminished his functional and work capacities”.
20.The claimant was also examined on a medical legal basis by Dr James Bodel, orthopaedic surgeon, and I refer to his report dated 17 October 2022. In this report, he states the collision caused the airbags of the vehicle to be deployed. After lengthy questioning at the assessment conference, the claimant confirmed this was incorrect. In fact, the airbags of his vehicle in the accident on the 25 May 2018 were deployed. I note in this report of Dr Bodel, the claimant made no mention of the injuries sustained by him in the motor vehicle accident on 25 May 2018. It would have been helpful if the claimant had mentioned the injuries sustained by him in this subsequent accident as it would have assisted Dr Bodel in providing a more accurate diagnosis and prognosis of the claimant’s medical condition.
21.He was also seen on a medico legal basis by Dr Dias, and I refer to his report dated 30 January 2023. The claimant did mention 3 previous motor vehicle accidents in 1999, 2007 and 2016 to Dr Dias but he made no mention of the injuries sustained in the motor vehicle accident 25 May 2018. Dr Dias noted on page 8 of his report, the claimant continues to suffer from ongoing symptoms of pain, stiffness and discomfort affecting his neck and right shoulder on a daily basis. He further notes he no longer suffers from significant symptoms of pain affecting his left shoulder, thoracic spine or lumbar spine. It would have been of assistance to Dr Dias if the claimant had mentioned the injuries sustained in the accident on 25 May 2018.
22.. The claimant was examined on a medical legal basis by Dr Nagesh, psychiatrist and I refer to his report dated 12 May 2023. I note the following on page 3 of his report
“In terms of his current routine, Sam works one to two days per week averaging around 10 hours per week in construction management. Before the motor vehicle accident, he could be hands on. He now just supervises at the moment. The rest of the days, he sits at home. He has become a complete social recluse. He has lost contact with the majority of his friends he doesn't attend any weddings, dinner parties, anniversaries, BBQ events. He struggles to live independently where he relies on his wife for cooking, cleaning and shopping. His parents support him financially. He relies on outside people for lawnmowing his ability to concentrate has diminished, he cannot read a book, cannot read a newspaper article, or browse the Internet. His ability to drive and travel has been affected where he cannot drive and travel for more than 20 minutes which makes him anxious. His relationship with his wife is up and down, where they do have frequent arguments and there is a loss of intimacy “
23... Dr Nagesh opined the claimant had no capacity to work more than 10 hours per week. He stated the claimant met the criteria for persistent depressive disorder (major depressive episode of moderate degree with anxious distress}.
24.. I refer to the ambulance report dated 25 May 2018 regarding the claimant’s accident on that date. It records, inter alia, the claimant complained of mild right shoulder pain and anterior right wrist.
25.. The clinical notes of Dr Vo record on the 20 March 2019, the claimant as consequence of the accident, on 25 May 2018, developed left shoulder pains, which since then, have been getting worse,,, left sided headaches.
SUBMISSIONS MADE BY THE INSURER
26. The insurer, inter alia, submits the causal relationship between the subject accident and the claimant’s neck, right deltoid and numbness in his hands is tenuous, as found by Dr Keller in 2018, due to the very late onset of complaints. This is especially so, given he was fit for pre-injury duties which were already restricted in any event by reason of the long-standing lower back symptoms, pre-existing right knee symptoms and pre-existing cervical spine symptoms. In all these circumstances, the insurer denies there were injuries sustained in the accident and submits, if anything at all is accepted as causally related, the claimant sustained a short-lived soft tissue aggravation to the cervical spine and down his arms right and allows a closed period of damages of 4 months consistent with the presentation to Dr Chung in May 2017,and improvement of symptoms in his neck and arms as reported to OZ physiotherapy on 8 May 2017 with the last complaint of left arm symptoms on 7 June 2017. The continuing right shoulder symptoms after onset of 8 May 2017 were not causally related to the accident. The insurer submits the claimant’s last accident-related medical treatment was with GP Dr Chung in May 2017. He only saw Dr Chung on one further occasion in July 2017, to obtain the personal injury claim form medical certificate.
27. The insurer arranged for him to be seen on a medico legal basis by Dr Keller, and I refer to his report dated 6 April 2018. On page 2 of his report. Dr Keller records the following
“Mr Fakhreddine reports no head injury or loss of consciousness. He was able to stand and walk at the scene of the accident. He reports no immediate pain or injuries and went home after the accident. Mr Fakhreddine continued working as normal. After around one month, he reports the development of pain in his neck associated with pins and needles and all of the fingers of the left and right hand to the level of the mid forearm. In late March, he also developed lower back pain that was interfering with his sleep and headaches.”
At the assessment conference the claimant said he did not recall making these statements to Dr Keller.
28. Dr Keller recorded he was suffering from intermittent pain in the neck. The claimant’s self-stated capacities included sitting for 60 minutes, standing and walking unrestricted lifting up to 40 kg and driving automatic vehicle for up to 70 minutes. Dr Keller also recorded the following on page 4 of his report
“Mr Fakhreddine is independent is self-care tasks. He is able to assist with cooking and cleaning at home and also mows his own lawns. He has no paid cleaning or yard services it has no such services prior to the accident. He states he has never received any medical disability benefits”
29. Dr Keller examined the claimant and found the range of movement in both shoulders and elbows was full and symmetrical. He also notes on page 8 of his report he appears to have never been certified unfit for work and noted on 4 May 2017 Dr Chung certified him fit for unrestricted work. Dr Keller opined he suffered possible soft tissue strains to the cervical and lumbar spine, but with an unusually delayed presentation. The insurer also arranged a refresher medical examination with Dr Keller, and I refer to his report dated 19 May 2023. In summary, he was of the opinion the claimant should have experienced a full physical recovery from the effects of the accident within 3 or 4 weeks, and he was also unable to find objective evidence for lasting physical injuries attributable to the accident that required current or future treatments. He also noted the following on page 7 of his report,
“It is reasonable that Mr Fakhreddinne received up to three months of physiotherapy this relates to neck and back pain .it is however not clear to me that this is directly attributable to the subject accident. In my opinion Mr Fakhreddine is unlikely to receive lasting benefit from ongoing passive physical therapies. there are no current medical indications for any surgery or injections.
30.. The insurer also arranged for the claimant to be examined on a medical legal basis by Dr Rikard Bell psychiatrist and I refer to his report dated 5 December 2023. He expressed the opinion the claimant developed a panic disorder and somatic symptom disorder with dominant pain anxiety in addition to anxiety symptoms. He recommended he undergo treatment In relation to panic disorder with a clinical psychologist and would also benefit from treatment with pain management. He did not believe there was any care or rehabilitation requirements in relation to the psychological injury.
MEDICAL SERVICE REPORTS
31. The claimant was examined by Medical Assessor Alan Home, and I refer to his certificate and reasons dated 21 December 2023. Assessor Home determined the claimant suffered the following injury in the subject accident
* Cervical spine whiplash associated disorder.”
He determined the claimant had suffered a right shoulder, referred pain from the neck, trapezius muscle strain which had resolved. I note the following on page 10 of his reasons,
“The claimant reports the progression of pain at his right shoulder over the last 12 months. There is documentation of restricted right shoulder motion at the time of the examinations of Dr Bodel and Dr Dias with motion progressively restricted overtime. The range of right shoulder motion is further restricted at the current assessment.
At the current assessment there is marked restriction of external rotation motion with the elbow by the side, which is constant with a diagnosis of severe underlying glenohumeral joint arthritis, which is now causing the claimant constant pain. The diagnosis is evident from ultrasound and MRI scan imaging of the right shoulder performed in July 2023.
I do not find that the subject accident has caused the current diagnosis of severe glenohumeral joint osteoarthrosis. There is no record of immediate shoulder pain that would be anticipated if the claimant had sustained an injury to the shoulder joint articulation (glenohumeral joint) in the subject accident. Mr Fakhreddine presented with the full range of active motion of the right shoulder at two separate independent examiners, one year after the accident, indicating that there was no evidence of symptomatic osteoarthritis of the right shoulder at that stage,
32. The claimant was also examined by Medical Assessor Shen, and I refer to his certificate and reasons dated 7 March 2024. He determined the claimant suffered the following injuries caused by the subject accident.
* Panic Disorder
* Somatic Symptom Disorder, with predominant pain
I note the following under the heading “Causation and Reasons” on page 9,
“The subject accident has led to his physical injuries and pain, which has led to a degree of preoccupation causing the somatic symptom disorder. In conjunction with physical limitations from his injury, and somatic concerns, in turn has negatively impacted his capacity for work, leading to significant financial strain, and marital strain. A further accident in 2018 has likely compounded this anxiety, and the cumulative stressors has led to the onset of panic attacks, and hence panic disorder in 2023.
,.,
REASONS.
PAST LOSS OF EARNINGS
a.It is submitted, firstly I should approach the calculation of past economic loss by applying the average earnings of the highest earning concreter in circumstances where the claimant had more than 18 years of experience as at the date of the accident, including running his own business, and deduct 25% of that amount to account for the residual earning capacity which the claimant accepts, with the evidence of Dr Bodel, Dr Dias and Dr Nagesh he retains.
In the alternative, since the claimant drew shareholder loans, in lieu of wages in the financial years 2015 and 2016, I should find he earned $1280 nett per week in the financial year ending 2016, in the form of shareholder loans, as opposed to wages. It is submitted, I should accept this sum as being the claimant's earning capacity as at 10 February 2017. Thereafter, the claimant was paid in wages and a schedule of such wage payments is set out in paragraph 42 of the claimant's submissions. The calculations proposed for past economic loss as at 13 May 2024 total $348,400.
I determined the claimant suffered minor soft tissue injuries to his neck, back and left and right shoulders, in the subject accident, and such injuries had, to a large extent, resolved by the time he was examined by Dr Barold in March 2018.
I also accept the findings of Dr Keller as stated in his report dated 6 April 2018 and in his later report, dated 19 May 2023 when he opined the claimant should have experienced a full physical recovery from the effects of the accident within 3 or 4 weeks. Dr Keller was also unable to find objective evidence for lasting physical injuries attributable to the accident that required current or future treatments when he examined him in May 2023.
In relation to his psychological injuries, I again note he had not received any psychological treatment since the accident and the first indication he was suffering psychological injuries was when he was examined on a medico legal basis by Dr Nagesh in May 2023, I do not find the panic attacks were of such severity to cause him to suffer a diminution in earning capacity.
I therefore find the claimant suffered a minor diminution in his earning capacity since the accident, for a period of approximately 13 months, up until May 2018, and thereafter, there was no diminution in earning capacity causally related to the injuries suffered by him, both physically and psychologically.
I consider it appropriate in the circumstances to award him a sum of $25,000 for past loss of earnings.
FUTURE LOSS OF EARNINGS
b.I refer to my reasons as stated above regarding the claim for past loss of earnings, and accordingly, I make no award of damages for future loss of earnings.
PAST TREATMENT EXPENSES
c.The amounts claimed for massage therapy in the schedule of the out-of-pocket expenses claimed on behalf of the claimant are not reasonable and necessary, in view of the opinions of Dr Keller in his reports, and in any event, are not substantiated by detailed invoices. Furthermore, I was informed at the general assessment conference, none of these invoices were submitted to the insurer for approval and scrutiny, despite the fact, the claimant commenced such massage therapy shortly after his accident.
I will allow the amounts claimed for treatment provided by OZ physiotherapy totalling $1875. I allow a Medicare charge in the sum of $200. I allow $610 for treatment from Kookdang traditional medicine centre.
The total amount allowed for past treatment expenses is $2685.
FUTURE TREATMENT EXPENSES
d.I accept the opinion of Dr Keller the claimant does not require any future treatment expenses. The claimant has submitted I should allow a sum of $37,169 for future treatment expenses. I find he suffered minor soft tissue injuries in the subject accident. I determine the claim made for future treatment expenses is not reasonable and necessary, having regard to the nature and extent of his minor injuries sustained in this accident.
PAST GRATUITOUS CARE
e.The amount of claim for past gratuitous care is $76,447. I note the claim commences from 11 March 2020 to date. I accept the opinion of Dr Keller regarding the claimant’s need for past and future domestic care. I determine the claimant’s injuries sustained in the subject accident were minor soft tissue injuries of a nature which did not require him to seek gratuitous domestic care at any time after the subject accident. Therefore, I find the claimant is not entitled to any damages for past gratuitous assistance.
FUTURE COMMERCIAL CARE.
f. I accept the opinion of Dr Keller regarding the claimant’s need for future domestic assistance and accordingly, I make no allowance.
ASSESSMENT OF DAMAGES SUMMARY
a. I assess the claim as follows on the findings set out above.
past economic loss $25,000
future economic loss $nil
past gratuitous care $nil
future commercial care $nil
past treatment expenses $2,685
future treatment expenses $nil
Total of economic losses and non-economic loss $27,685
Reduction for contributory negligence NIL
TOTAL DAMAGES ASSESSED $27,685
g.The claimant’s economic losses are to be reduced by, and the insurer is to have credit for the following payments in accordance with s.130.
a. Section 83 payments $ nil
COSTS AND DISBURSEMENTS
h.I assess the claimant’s legal costs and disbursements in accordance with the Act are the regulated costs. I direct there be no reduction of the claimant’s regulated costs, as Member Nolan did not make a binding order in her Decision dated 21 December 2022.
CONCLUSION
a.. Effective Date.
This determination takes effect on 22 April 2025. .
b. Legal Costs
The amount of the claimant’s costs assessed in accordance with the Motor Accidents Compensation Regulation 2015 are the regulated costs.
c. Legislation
In making my decision I have considered the following legislation and guidelines
i.Motor Accidents Compensation Act 1999 (NSW).
ii.Motor Accidents Compensation Regulation 2015
iii.Claims Assessment Guidelines 2017
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