Gordian Runoff Limited v Zvedeniouk
[2024] NSWPIC 136
•19 March 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Gordian Runoff Limited v Zvedeniouk [2024] NSWPIC 136 |
| CLAIMANT: | Isak Zvedeniouk |
| INSURER: | Gordian Runoff |
| MEMBER: | David Ford |
| DATE OF DECISION: | 19 March 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accidents Compensation Act 1999; claims assessment dispute about the amount of damages to be paid to the claimant under sections 94(3) and 94(4) for the bicycle being written by the claimant struck from the rear by the insured bus and as a consequence claimant sustained injuries; insurer admitted liability and no allegation of contributory negligence; claimant suffered fractured ribs, lacerations to his face and dental injuries and general bruising to his body; claimant is a pensioner; no claim for non-economic loss or past and future economic loss; Held – claimant is entitled to damages for past treatment expenses in the sum of $12,703 and future treatment expenses in the sum of $5000; total damages $17.703. |
| DETERMINATIONS MADE: | CERTIFICATE Issued under s 94(5) of the Motor Accidents Compensation Act 1999 Assessment of Claim for Damages made in accordance with s 94 of the Act. 1. On the issue of liability for the claim, Gordian Runoff’s insured owed a duty of care to the claimant, breached that duty of care and the claimant sustained injury, loss and damage as a result of that breach of duty. 2. Under sub-ss 94(3) and 94(4) of the Motor Accidents Compensation Act 1999 (the Act) I specify the amount of damages for this claim as $17,708. 3. The amount of the claimant's costs, taking into account the amount of damages assessed in respect of this claim, assessed in accordance with the Act is $5,077.15 inclusive of GST. 4. The claimant’s economic loss was reduced by, and the insurer is to have credit for the sum of $12,703 in accordance with s 130 of the Act. 5. Attached to this certificate are reasons for my assessment. 6. This certificate was issued on 19 March 2024. |
STATEMENT OF REASONS
Issued under s 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.
On 3 September 2011, Isak Zvedeniouk (the claimant) was riding his bicycle and was stationary at the intersection of Union Street and Pyrmont St, Pyrmont, when a bus collided with him from the rear.
The impact caused him to suffer fractured ribs, laceration to his face and dental injuries. He was taken by ambulance to St Vincents Hospital, where he was admitted and complained of pain affecting his knee, shoulders, neck and back. He remained in hospital for a period of three days, was discharged and prescribed analgesic medication. Since then, he has complained of chronic pain affecting his back, neck and shoulders. After the accident, he was represented by solicitors for a period, however, for the last few years he is self-represented in his claim.
He was born in January 1945, and at the time of the accident, he was 66 years of age and was a pensioner. He also suffered fractures to teeth 11 and 12 in the subject accident. The insurer has paid for dental treatment on his behalf totalling $12,703.12.
Initially this matter was sent to me to deal with the issue he had, on numerous occasions, failed to attend medical examinations arranged by the medical service. The solicitor for the insurer had filed a medical dispute application with the medical service on 24 March 2020. The claimant had failed to attend the following medical examinations:
(a) Medical Assessor Cameron on 9 November 2021 at 12.00pm.
(b) Medical Assessor Grainge on 14 January 2020 at 2.30pm.
(c) Medical Assessor Haber on 16 February 2022 at 2.00pm.
(d) Medical Assessor Cameron on 5 April 2022 at 3.00pm.
(e) video conference with Medical Assessor Korbel on 17 April 2023 at 3.00pm.
(f) video conference with Medical Assessor Nagesh on 18 July 2023 at 3.30pm, and
(g) Medical Assessor Cameron on 15 August 2023 at 4.30pm.
The matter was therefore referred to me to consider the non-compliance of the claimant to attend medical examinations under s 86 of the Motor Accidents Compensation Act 1999 with a view to progressing the matter. I held an initial teleconference on 11 October 2023. The solicitor for the insurer attended the teleconference but there was no appearance by the claimant. At this teleconference, the solicitor for the insurer advised they intended to file an application for general assessment of the claim and in such circumstances, I postponed the application regarding the non-attendance of the claimant at the medical examinations until the 13 of December 2023.
On 13 December 2023 there was no attendance by the claimant, although he had been notified of the teleconference date by the insurer by email forwarded shortly after my initial teleconference on 11 October 2023. At the teleconference on 13 December 2023, I set the matter down for an in person hearing general assessment conference in matter M21564/23 for 7 March 2024 at 10.00am. Once again, the solicitor for the insurer emailed a copy of my directions and teleconference report to the claimant. On 13 December 2023, I made certain directions, which included the requirement the claimant serve on the insurer by email updated schedule of damages, submissions on damages, statements upon which he would seek to rely. The claimant did not comply with this direction.
On 9 February 2024, a dispute officer from the Personal Injury Commission (Commission) spoke by telephone with the claimant and reminded him of the assessment conference date of 7 March 2024. He advised the dispute officer he would not attend the assessment conference. I held a further teleconference on 15 February 2024, and there was no appearance by him. In my report I confirmed the matter would proceed to a general assessment conference on 7 March 2024 at 10.00am for an in person hearing and I directed the solicitor for the insurer to email the claimant a copy of my teleconference report. On 26 February 2024, the Commission forwarded an email to him again reminding him the matter had been set down for a general assessment conference on 7 March 2024 at 10.00am. On 6 March 2024, a dispute officer from the Commission spoke with the claimant by telephone. The claimant advised he would not be attending the general assessment conference on 7 March 2024.
The general assessment conference commenced at 10.00 am on 7 March 2024. There was no appearance by the claimant. I initially raised with counsel for the insurer s 86(4) of the Motor Accidents Compensation Act 1999 which states as follows.
“SECTION 86 MEDICAL AND OTHER EXAMINATIONS OF CLAIMANT,
(4) if the claimant fails without reasonable excuse to comply with such request.
(a) the claim cannot be referred to the Authority for assessment under Part 4.4 and any such assessment cannot be continued while the failure continues and,
I was then advised by counsel for the insurer, the insurer had formally withdrawn the medical dispute application which had been filed on 24 March 2020. In such circumstances, this matter could then proceed to a general assessment conference.”
Liability is admitted and accordingly the claim comes before me solely to assess damages.
OUTLINE ISSUES IN DISPUTE
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 domestic assistance.
(f) future domestic assistance, and
(g) non-economic loss.
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?
(c) What is the entitlement to damages which flow from the findings of the above issues?
DOCUMENTS CONSIDERED
I have considered the documents provided in the application and reply, and any further information provided by the parties.
SUBMISSIONS MADE BY THE CLAIMANT
There were no submissions made by the claimant, however I have noted and read a two page letter from Dr Zvedeniouk carer for the claimant, in which he has made certain comments and claimed damages for the claimant, having regard to the fact, he states the claimant has suffered from radiation dose cancer risks because of various CT scans, E-coli caused heart and kidney damages (and possibly some others like arthritis) and reduction of life expectancy. Furthermore, there is a list of 17 illnesses which is alleged the claimant developed as a result of the motor vehicle accident. I have also reports from his treating dental surgeon, Dr Jacob Smith dated 27 October 2011 and 24 January 2012. The insurer did not dispute the injury sustained to the claimant’s two teeth.
He was seen on a medico-legal basis by Dr Ben Teoh, consultant psychiatrist, and I refer to his report dated 10 April 2018. He diagnosed the claimant as suffering from chronic adjustment disorder with mixed depressed and anxious mood. He opined the accident had caused a concussion, chronic pain physical disability and anxiety/depressive symptoms. He recommended psychiatric treatment for a period of 12 months at a cost of $300 per session. He recommended further psychotherapy and pharmacological treatment. He assessed the claimant as having a whole person of payment of 20%.
The claimant was also seen by Dr Farhan Shahzad, consultant occupational physician and I refer to his report dated 25 June 2018. Dr Shahzad’s report was only in respect of an assessment of the claimant’s whole person impairment. He assessed the lumbosacral spine at 25%, cervico thoracic spine at 15%, right shoulder at 10% and left shoulder at 10%. The Combined Values Chart resulted in an assessment of 48% WPI.
SUBMISSIONS MADE BY THE INSURER
The solicitor for the insurer served comprehensive submissions on damages dated 31 October 2023. I confirm the claimant did not respond in writing to the submissions. In regard to the allegation the claimant sustained heart and kidney damages from E coli, the insurer notes the clinical records of Star City Medical Centre dated 20 January 2014, which it is noted “had E-Coli in urine at tiem [sic] of accident, not likely caused by accident, but was not followed up either”. The insurer also notes there is no mention the subject accident or any evidence, which links the claimant's heart condition to the accident.
In relation to physical injuries, the insurer relies on the report of Dr Slezak, consultant physician dated 29 September 2014, who found the claimant sustained a minor closed head injury, facial lacerations, superficial lacerations over the upper limbs and trunk, possible left renal contusion, left rib fractures and dental trauma from the subject accident. He opined there was no residual disability with respect to the injuries sustained in the accident except for the trauma to the claimant's teeth. He assessed the whole person impairment of the claimant at 0%.
In relation to the report of Dr Shahzad, he states there is no evidence of pre-existing degenerative changes in the cervicothoracic spine and therefore the claimant does not qualify for a deductible pre-existing impairment. The insurer submits the CT scan of the cervical spine dated 3 September 2011 showed degenerative change and osteopenia. Also, an MRI scan dated 5 September 2011 noted cervical spondylosis without significant spinal cord compression and mild to moderate exit foraminal stenosis noted at several levels.
The insurer concedes the injuries to teeth 11 and 12 and confirms it has paid for certain dental treatment to date totalling $12,703.30. In relation to psychological injuries, the insurer submits it has not been able to arrange for the claimant to be examined on a medico-legal basis by a psychiatrist and furthermore, he advised the solicitors for the insurer, he would not be undergoing any further medical assessments arranged by the insurer. Furthermore, there is no contemporaneous evidence in relation to any complaints of a psychological injury since the date of the accident up until the present time. In the personal injury claim form dated 20 November 2011, there was no mention of any psychological injury as a result of the subject accident.
REASONS
Past loss of earning
There is no claim for past loss of earnings, the claimant is a pensioner.
Future loss of earnings
There is no claim for future loss of earnings, the claimant is a pensioner.
Past treatment expenses
Section 83 expenses were in the sum of $12,703 (rounded down). The solicitor for the insurer was not able to provide details regarding any possible payback to Medicare. At the assessment conference, counsel for the insurer withdrew the submission an allowance should be made for past treatment expenses in the sum of $15,000. I therefore allow a sum of $12,703 only for past treatment expenses.
Future treatment expenses
The solicitor for the insurer submitted a sum of $5,000 for future dental treatment. I allow this amount.
Past domestic assistance
There is no claim for past domestic assistance made on behalf of the claimant.
Future domestic assistance
There is no claim for future domestic assistance.
Non-economic loss
The insurer did not concede the claimant was entitled to damages for non-economic loss. The claimant refused to be assessed by the medical service as to whether he was entitled to damages for non-economic loss. I make no allowance for such damages.
ASSESSMENT OF DAMAGES SUMMARY
I assess the claim as follows on the findings set out above:
past economic loss incl super NIL
future economic loss incl super NIL
past paid care NIL
future commercial care NIL
past treatment expenses (incl s83 payment) $12,703
future treatment expenses $5000
Non-Economic loss NIL
Total of economic losses and non-economic loss $ 17,703
Reduction for contributory negligence NIL
TOTAL DAMAGES ASSESSED $17,703.
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) s 83 payments totalling $12,703.
COSTS AND DISBURSEMENTS
I assess the claimant’s legal costs and disbursements in accordance with s 149 and s 150 of the Motor Accidents Compensation Act 1999 in the Motor Accidents Compensation Regulation 2015 in accordance with the attached sheet.
CONCLUSION
Effective date
This takes effect on 18 March 2024.
Legal costs
The amount of the claimant’s costs assessed in accordance with the Motor Accidents Compensation Regulation 2015 is $5,077.15 inclusive of GST.
Legislation
In making my decision I have considered the following legislation and guidelines
(a) Motor Accidents Compensation Act 1999 (NSW).
(b) Motor Accidents Compensation Regulation 2015, and
(c) Claims Assessment Guidelines 2017.
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