Harvey v QBE Insurance (Australia) Limited

CERTIFICATE OF DETERMINATION OF MERIT REVIEWER
CITATION:	Harvey v QBE Insurance (Australia) Limited [2023] NSWPICMR 32
CLAIMANT:	Justin Harvey
INSURER:	QBE Insurance (Australia) Ltd
MERIT REVIEWER:	Elizabeth Medland
DATE OF DECISION:	17 May 2023
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; merit review matter as to the amount of weekly payments of statutory benefits that are payable under division 3.3; dispute as to the claimant’s post-accident earning capacity for the purposes of section 3.8; insurer made an “earning capacity decision” in March 2023, determining the claimant had an earning capacity as a truck driver for 21 hours per week; weekly payments of statutory benefits were reduced effective from 7 May 2023; insurer relied on reports of Procare who conducted a vocational and job match assessment; Held – the claimant’s post-accident earning capacity is $0; reviewable decision set aside; found that the employment asserted by the insurer as suitable is not “reasonably available” to the claimant as required by schedule 1 clause 8(1)(b).
DETERMINATIONS MADE:	The reviewable decision about the amount of weekly payments of statutory benefits that are payable under Division 3.3 of the Motor Accident Injuries Act 2017, and is therefore a merit review matter under Schedule 2(1)(a) of the MAI Act. 1. The reviewable decision is set aside. 2. The claimant’s post-accident earning capacity for the purposes of s 3.8 of the MAI Act is $0. 3. This determination takes effect on 7 May 2023.

STATEMENT OF REASONS

BACKGROUND

The determination relates to a merit review dispute between the parties, under Schedule 2 cl1(a) of the Motor Accident Injuries Act2017 (MAI Act) which deals with the amount of statutory benefits payable under Division 3.3 of the MAI Act.
Specifically, the dispute centres on Justin Harvey’s (the claimant) entitlement to payments of weekly statutory benefits after the second entitlement period (after week 78) pursuant to s 3.8 of the MAI Act. The claimant disputes a determination of the insurer that his payments be reduced on account of a partial post-accident earning capacity.
The claimant is a 48-year-old man (born in 1974) who suffered injury as a result of a motor accident occurring on 6 November 2021.
He subsequently lodged an Application for Personal Injury Benefits (the claim) with the insurer on or around 9 November 2021.
Evidently the insurer accepted liability and attended to payment of weekly statutory benefits.
By way of an email dated 9 March 2023, the insurer advised the claimant of an “earning capacity decision”. The insurer determined that the claimant had an earning capacity as a truck driver for 21 hours per week with earnings of $820.47.
Payments of weekly statutory benefits were reduced accordingly effective from 7 May 2023.
An internal review request was made by the claimant and in a determination of 28 March 2023, the original decision reducing payments was affirmed.
The claimant subsequently lodged an application with the Personal Injury Commission (Commission) and the matter has been allocated to me for determination as a Member of the Commission.
I have held one teleconference between the parties on 24 April 2023. Both the claimant and the insurer’s representative were provided with the opportunity to make oral submissions further to the written material before me. Both parties agreed that it was appropriate for me to assess the matter on the papers.
The claimant, at my direction, provided further submissions by way of an email dated 24 April 2023. There was a delay with the email being uploaded to the portal. The insurer was provided with an opportunity to respond. A short response by way of a message on the Commission’s portal was provided by the insurer on 24 May 2023.

DOCUMENTS CONSIDERED

I have considered the documents provided in the application and reply and all other documents/information provided by the parties.

LEGISLATIVE FRAMEWORK

Division 3.3 of the MAI Act deals with an injured person’s entitlement to weekly payments of statutory benefits.
Section 3.8 of the MAI Act provides:
“(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.
Note—
The person’s age after the second entitlement period is relevant to determining entitlement to statutory benefits after the second entitlement period. A person’s age at the date of the motor accident is not relevant. Schedule 1 defines when a person 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) or post-accident earnings, whichever is the greater, 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) or post-accident earnings, whichever is the greater, 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.”
Schedule 2 cl(7)(1) of the MAI Act defines “pre accident earning capacity” to be: “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.”
Schedule 2 cl(8)(1)(b) of the MAI defines “post-accident earning capacity”, for any period after the second entitlement period to be: “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.”
Schedule 2 cl(1)(a) provides that a dispute as to the amount of statutory benefits that is payable under Division 3.3 (weekly payments of statutory benefits to injured persons) is a merit review matter.
Section 7.12 of the MAI Act provides that a merit review matter may be referred to the President of the Commission for determination.

SUMMARY OF EVIDENCE

Background

Prior to the accident, the claimant was employed as a truck driver with Fragile Freight Solution Pty Ltd. At the time he resided in Port Macquarie, and to my understanding continues to do so.
In the claimant’s claim form he describes having a hypoglycaemic event that caused the accident. He describes his injuries as being a fractured left ankle, a dislocated knee with major nerve damage.

Medical evidence

The claimant evidently suffered a significant injury to his right lower limb. A report from his treating orthopaedic surgeon, Dr Snyman dated 25 January 2023 noted a 12 month review. Repeat MRI scans were said to show swelling of the posterior cruciate ligament (PCL). A medial meniscus tear was still visible. It was described as not displaced and therefore likely stable. Other reconstructed lateral and medial ligaments were also noted to be in good position.
On examination, the claimant could extend fully and flex to around 90 degrees but then had some deep posterior discomfort. Dr Snyman thought this was likely due to some tension in the PCL and the swelling was probably contributing to this. It was said that this situation may or may not improve with time. He then stated:
“In my experience multi-ligament knee injuries take approximately 18 months to reach maximum recovery and I will review Justin again approximately 6 months. He will have some long-term limitation function which is normal after injuring all four major ligaments in the knee.”
On the same date as his report, Dr Snyman filled out a questionnaire from Procare Injury Management. The doctor described the injury as a multiligament injury to the right knee, requiring occasional physiotherapy. Dr Snyman ticked the >6 months box for “expected timeframe for maximum capacity.”
Procare noted that the claimant was employed as a truck driver and listed a number of functions required to perform such role. Thereafter the following question was put to the doctor:
“…considering the main functional barrier of Mr Harvey needing to climb vertically into and out of a truck cabin, based on the information you have available at this time, is Justin Harvey anticipated to regain suitable physical capacity to return to a truck driving role?”
The doctor indicated his answer as “no”. He did not answer the question as to when he anticipated the claimant would regain capacity for pre-injury duties. Dr Synman indicated that he anticipated some stiffness and loss of endurance as being long-term functional restrictions that the claimant will endure.
Various certificates of capacity are before me. One dated 15 August 2022 completed by Dr Bronwyn Hiles certified the claimant fit for some type of employment from 30 March 2023 to 20 April 2023 for seven hours a day for three days a week. Restrictions were noted as follows:
(a)    10kg lifting capacity;
(b)    no limit to sitting;
(c)    one hour standing tolerance;
(d)    10kg pushing/pulling ability;
(e)    completely restricted bending/twisting/squatting ability;
(f)    break required after two hours of driving, and
(g)    move leg around every one hour for five minutes, seven hours a day to be reviewed “if too much.”
The above certification remained the same, up until 20 February 2023 when the claimant’s lifting and pushing/pulling restrictions were increased to 12kg. Other restrictions are noted as being the same. The most recent certificate is dated 20 March 2023 which includes no changes in the restrictions noted on 20 February 2023.
A number of “allied health recovery request” forms are before me from Hastings Sports Injury & Physiotherapy Centre. One dated 1 February 2022 described the diagnosis as: “destroyed knee with ACL, PCL, MCL, posterolateral corner, medial meniscus, popliteus tendon all ruptured or torn. Reconstruction surgery for posterolateral corner, PCL, medial meniscus repair, medial ligament repair, popliteus repair.”
The claimant was noted to be non-weightbearing with a special postsurgical brace locked in extension. However, he could do some weight bearing with crutches in the brace.
By June 2022 he was noted to be able to drive his car. By 21 July 2022 the claimant was noted to be able to do light duties, such as office work, but still unable to climb in and out of the truck.
Such situation appeared to remain the same until a request dated 31 January 2023, when the physiotherapist stated that the claimant would be able to return to work “provided access to a trucking’s suitable.” [sic].
In a request dated 22 March 2023, the physiotherapist (Paul Seward) noted the claimant had “suffered a setback with no injury mechanism two months ago, MRI showed a lot of scar tissue but this is now settling, knee range of motion back to normal, patient suitable to look at returning to work on select duties and/or needs retraining.”
Mr Seward further noted in the request form that the patient will not go back to climbing in a truck and “…urgently needs retraining and job assistance to drive light delivery trucks, cannot climb into B doubles.”

Insurer’s vocational/functional reports

The insurer arranged for Procare Injury Management to undertake a vocational and functional report of the claimant.
In a vocational assessment report dated 2 November 2022, Procare, identified a number of suitable employment options open to the claimant. These included: customer service officer; weighbridge operator; and transport allocator.
The report states that the claimant “finished” with his employer on 5 November 2021, the day before the motor accident. It is not clear where that information came from. It does not appear to be verified anywhere else in the material before me. I note that the claim form for statutory benefits makes no mention of him severing his employment the day before the accident.
He claimant was noted to be taking Panadol and Nurofen three to five days a week. He had been prescribed Targin 5mg. The claimant is noted to suffer from Type 1 Diabetes Mellitus managed with insulin.
In terms of computer skills the claimant noted that he has no computer skills. He is able to read emails but has difficulty sending them. He described his daughter as his “secretary” as she assisted him with computer tasks. He was able to send documents and attachments when using a tablet or mobile device and was able to use the phone system for the “trucking system.”
Mr Harvey’s prior roles are reported to include as a warehouse manager (2001-2002) and a transport manager (2002-2011). He was in charge of truck allocation, compliance with policies and procedures.
He began truck driving in 2011 and held various positions from 2011, including running his own operation from 2014-2019.
From 2020 the claimant worked for his pre accident employer. He was employed on a full time basis, working variable hours up to 60 hours per week. His shifts were around 12 hours long. He drove a Kenworth semi trailer from Port Macquarie to Sydney and back. The report states: “Mr Harvey is no longer attached to his pre-accident employer. Mr Harvey finished with his employer on the 5/11/2021 and sustained the accident the next day (6/11/2021).”
The report recommended the following alternative positions:
(a)    Customer service officer $1,052.60 per week (full-time), or $27.70 per hour - $581.70 per 21 hours per week.
(b)    Weighbridge operator $950 per week (full-time), or $25.00 per hour - $525 per 21 hours per week.
(c)    Transport Allocator $1,473.26 per week (full-time), or $38.77 per hour.
Several potential employers were contacted for each of the above roles. The first employer for the customer service role (Wine People) is located in Sydney. Roles are full time, however, consideration of part time hours is possible. The role was noted to be centred on telephone and computer tasks, albeit basic and apparently easily taught.
The second option involved a work from home role and included phone based customer service, with record keeping and information management.
The third employer was also Sydney based and predominantly involved phone based work with details recorded in a computerized system.
The employers contacted for a weighbridge operator role were located away from Port Macquarie (Wallsend, Fern Gully and Woy Woy).
The last listed vocational option of transport allocator involved Procare contacting three potential employers. The first located in Coffs Harbour. The role would be offered on a full-time basis.
The next employer listed is located in Tomago and the role would be offered on a full time basis. The third employer is located in Sydney, however, with hybrid working arrangements involving three days in office and two days from home.
A further functional assessment report of Procare dated 20 December 2022 is provided. The report concludes that the claimant is fit to work full time hours in a sedentary based role with restrictions such as lifting less than 5kg and pushing/pulling less than 10kg.
In addition, Procare concluded the claimant would be suitable to perform part time work (eight hours, three days per week) in a medium rated role with restrictions such as 15kg waist to waist lifting, and 10kg lifting above or below waist height.
A further vocational assessment report of Procare of 23 January 2023 was obtained by the insurer. The report concludes that the claimant has vocational and functional suitability for roles of: weighbridge operator, truck driver and pathology courier.
In respect of the role of weighbridge operator, Procare contacted three potential employers. All of which were not hiring at the time of phone call. One employer stated they hire one to two times per year. Data entry, and basic computer skills were generally required and previous experience in a similar role an advantage.
In respect of position of truck driver, Procare contact three potential employers. All employers were currently hiring, with casual employment possible. The roles involved the driving of heavy trucks. Basic computer skills were noted to be required in at least one of the roles.
In at least one of the roles, lifting/carrying is often required in loading and unloading. However, it is reported that the claimant would not be required to lift more than 10kg. The roles involved being mostly seated.
The remaining option of pathology courier driver again involved Procare contacting potential employers. All employers were noted to be either hiring at the time of phone call or with frequent new vacancies becoming available.
It was noted that at least one of the roles (NSW Health) involved a level of fitness appropriate to walking long distances and lifting, carrying and moving items of up to 10kg over an eight hour shift. A requirement of recent pathology courier driver experience is reported.
The second potential employer noted that the role required frequent lifting and carrying of pathology items at waist level. It was noted that the items can weight up to 10kg and a trolley is available and couriers are able to divide loads to reduce weight.
The third employer listed was reported to list light to medium physical demands in the role, with operating the cab of the vehicle frequently and walking frequently to deliver parcels/goods. Also noted that the role can involve bending or kneeling occasionally when getting in and out of the vehicle with loads during manual handling activities.

THE REVIEWABLE DECISION

The original decision of the insurer dated 9 March 2023, and affirmed at internal review noted the claimant’s pre-accident earnings as being $1,830.95 gross per week. Increased due to indexation to $1,862 per week as per s 4A of the Motor Accident Injuries (Indexation) Order 2017. The notional taxation amount was determined as $460 per week. This was determined as the claimant’s pre-accident earning capacity.
The claimant’s post-accident earning capacity was determined to be $820.47 per week with a taxation amount of $105. This amount was determined with reliance on the Procare vocational assessment reports.
The original decision relies on the contact by Procare to the three potential employers for a truck driving role. It is stated
“…they contacted 3 truck driving employer who all confirmed that the roles they had available required no lifting above the capacity outlined on your certificate issued by Dr Hiles and that pallets and mobile plant equipment is used for loading and unloading. All requirements for the role of truck driver are within the capacity demonstrated in the functional assessment as reported by Procare.”
The insurer concluded that on such basis the claimant’s ongoing entitlement to statutory benefits would be $583.55 net per week effective from 7 May 2023.
The internal review decision of 28 March 2023 affirmed the original decision. However, the reliance of the claimant being fit to perform truck driving duties was somewhat widened. In this regard, the internal review makes a general statement that the insurer was satisfied that on the balance of evidence the claimant had a capacity to earn in the “identified occupations listed within the vocational assessment report…”

SUBMISSIONS

The insurer confirms their position that the claimant’s pre-accident earnings represent the claimant’s pre accident earning capacity.

In terms of post-accident earning capacity, the insurer relies upon the reports of Procare and notes the content of the reports of Dr Snyman and the certificates of capacity of Dr Hiles.
The insurer submits that it has approved funding for rehabilitation, however, it is alleged that feedback provided by the rehabilitation service is that the claimant had not been an active participant in his return to work.
The insurer submits:
“…in assessing post-accident earning capacity under schedule 1(8) of the Act, the Insurer submits that the vocational and functional reports of Procare have considered the Claimant’s past experience, his skills and his duties in his pre-accident employment as well as the Claimant’s symptoms and age and has deduced that the above occupations are suitable. In the instance that Transport Allocator is best suited to the Claimant’s capacity this would be $1473.26 gross per week, this has been used by the Insurer.”
The claimant’s submissions are limited, no doubt owing to the fact that he is necessarily self-represented. He did, however, tell me at the teleconference that he is not able to enter truck cabins as alleged by the insurer, and referred me to the report of Dr Synman. He also stated to me that the insurer has denied payment of courses so that he could retrain into an alternative vocation.
In an email to the Commission dated 24 April 2023 (I understand the email was sent with the assistance of the claimant’s daughter), the claimant acknowledged that a recent certificate of capacity had increased his driving tolerance from one hour to two hours. The remainder of the claimant’s dot form submissions are noted to be both relevant, helpful and succinct and for that reason I reproduce them below:
·        “Pro Care has received a letter from my surgeon Doctor Snyman to say that I cannot climb vertically into a truck as it is 1.5 to 2 metres above the ground. The second attachment page 2 of 3 at the bottom of the page he has stated no to the question of me being able climb into a truck. [sic]
·        Pro Care have stated that I can be a truck allocator or a weigh bridge operator but as I have next to no skills in computer literacy and QBE are not providing funds for me to learn to further my skills. I fail to see how I can complete either of these tasks.
·        I am also having difficulty applying for truck driving jobs as I am limited to 21 hours a week with limited lifting capacities, and only able to drive 1 hour at a time with constantly having to stop. As a truck driver of 25+ years experience, I have to say that a truck driver is pushed to make deadlines and I do not think with my capabilities that I am a prime candidate for someone to hire.
·        My employment before my accident was an interstate truck driving from Port Macquarie to Sydney, unloading, reloading, then heading back to Port Macquarie. The driving in itself is a 9 hour round trip, then add an unload at 1.5 hours minimum and a reload at 1.5 hours minimum, that in itself is 13 hour day minimum.”
The insurer provided a brief response via the Commission portal on 24 May 2023. The insurer stated in reply that the Procare report of 2 November 2022 found the claimant to be vocationally suited for the role of a transport allocator.

FINDINGS AND REASONS

Pursuant to Schedule 1 cl 8(1)(b) post-accident earning capacity is the capacity to earn in any employment reasonably available to the person.
In coming to a determination that the claimant has a post-accident earning capacity of $820.47 gross per week, the insurer relies on the various reports of Procare.
Having considered the content of the reports of Procare, I do not consider the requirement of employment being “reasonably available” to the person has been satisfied.
A number of suitable roles were identified by Procare in their reports dated 22 November 2022 and 23 January 2022. My reasons in respect of each vocational option are set out below:
(a)    Customer service officer. Procare did not identify whether any roles were available at the time of calling each employer. In addition, the roles were located an unreasonable distance from the claimant’s residence. Furthermore, the roles involve computer skills, which the claimant does not possess. Furthermore, if the claimant’s assertions are correct, the insurer has not provided funds to “further” his skills.
(b)    Weighbridge operator. In the report of 22 November 2022 each identified potential employer was located an unreasonable distance from the claimant’s residence in Port Macquarie. Further, it is not set out whether any jobs were available at the time.
In the second report of 23 January 2023, each of the three employers contacted were not hiring at the time. Each role involved basic computer skills. Again, which the claimant does not possess.
(c)    Transport allocator. Procare contacted three potential employers. Only one located in Coffs Harbour with the remaining two located an unreasonable distance from the claimant’s residence. All relevant roles would be offered on a full time basis. The claimant’s certified capacity is limited to full time hours, and whilst Procare opines that the claimant is fit for full time sedentary duties, confirmation is not provided by the claimant’s treating practitioners that such arrangement is suitable, particularly given that Dr Synman considers the claimant to remain in the recovery phase of his injury.
Again, it was not set out whether any jobs were available at the time. In addition, the roles involve computer skills. It has not been established that the claimant has the computer literacy to undertake such role, or present as an attractive candidate to the role. I accept the claimant’s explanation to me that he essentially has no computer skills for practical purposes.
(d)    Courier driver. All three employers contacted by Procare described a requirement for reasonable fitness, with the job involving frequent walking and lifting. Whilst some modifications were said to be offered, I do not consider it likely the claimant could reasonably meet the demands of the job considering the described frequent lifting. It was also mentioned that kneeling and squatting would be required, which is clearly against the claimant’s established restrictions as set out in his Certificates of Capacity.
(e)    Truck driver. Whilst the claimant clearly has the relevant experience and skills to carry out work as a truck driver, the medical evidence does not establish that he could reasonably undertake the demands of the roles identified. Dr Synman clearly has advised the claimant is not fit to enter the cab of a truck.
In addition to the reasons set out above, it is noted that the insurer has only requested specific comment from the claimant’s treating surgeon as to the suitability to carry out the duties of the role of truck driver. The other vocational options relied upon were not put to Dr Synman for his opinion as to whether the claimant has the capacity to undertake the various tasks of the roles. Moreover, Dr Synman clearly noted that it would be in excess of six months before the claimant’s condition had reached maximum capacity.
Whilst the insurer suggests that rehabilitation efforts have been hampered by the claimant’s unwillingness to participate, I have not been provided with any evidence to support such assertion. To the contrary, Procare noted in their reports that the claimant had expressed a clear desire to re-enter the workforce. In addition, the claimant has asserted that his request for the insurer to fund upskilling efforts have been denied. This assertion has not been met with any defence by the insurer in their submissions.
Accordingly, on the basis of the material before me, I am not satisfied that the claimant has a current capacity for employment and his post accident earning capacity in accordance with Schedule 1 cl(8)(1)(b) of the MAI Act is $0.

CONCLUSION

On the basis of the above:
(a) the reviewable decision is set aside, and
(b) the claimant’s post accident earning capacity for the purposes of s 3.8 of the MAI Act is $0.

[2023] NSWPICMR 32

17 May 2023