Huynh v Allianz Australia Insurance Limited
[2022] NSWPICMR 20
•5 April 2022
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
| CITATION: | Huynh v Allianz Australia Insurance Limited [2022] NSWPICMR 20 |
| CLAIMANT: | Thanh Huynh |
| INSURER: | Allianz Australia Insurance Limited |
| MERIT REVIEWER: | Katherine Ruschen |
| DATE OF DECISION: | 5 April 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS- Dispute about payment of weekly benefits under Division 3.3 of the Motor Accident Injuries Act 2017 (MAI Act); pre-accident earning capacity; decision about post-accident earning capacity; schedule 1, clause 7; schedule 1, clause 8 of the MAI Act; weekly benefits after second entitlement period sections 3.8; 3.15; and 3.16 of the MAI Act; balance of probabilities; Motor Accident Guidelines clause 4.56; Held– the reviewable decision is affirmed. |
| DETERMINATIONS MADE: | The reviewable decision is about the amount of weekly payments of statutory benefits that are payable under Division 3.3 of the Motor Accident Injuries Act 2017 (the MAI Act), and is therefore a merit review matter under Schedule 2(1)(a) of the MAI Act. 1. The reviewable decision is: (a) affirmed. |
BACKGROUND
There is a dispute between Thanh Huynh (the claimant) and the insurer about the amount of weekly payments of statutory benefits payable under Division 3.3 of the MAI Act.
The claimant was involved in a motor accident on 15 February 2019.
The claimant lodged an application for personal injury benefits.
On 13 September 2021 the insurer determined the claimant’s entitlement to weekly payment of statutory benefits in the third entitlement period is $115.60.
The claimant requested an internal review of the 13 September 2021 decision.
On 27 September 2021 the insurer issued their internal review decision, which affirmed the decision of 13 September 2021.
SUBMISSIONS
The claimant submits his entitlement to weekly payment of statutory benefits in the third entitlement period should be calculated based on the opinion of Dr Dias dated 15 November 2021. Dr Dias is of the view the claimant is totally unfit for any form of gainful sustainable employment within the scope of his previous education, training and experience on the open labour market as a result of injuries sustained in the motor accident. The claimant submits his age of 62 years, limited education and limited English skills make him incapable of performing work as a picker/packer or assembler, as identified ty the insurer.
The insurer submits that the certificates of capacity and vocational assessments of Pinnacle Rehab, which evidence the claimant has capacity to work as a picker/packer or assembler for 40 hours per week ought to be preferred over the opinion of Dr Dias.
The insurer submits that a medical assessment under section 7.27 of the MAI Act is otherwise required to resolve the dispute.
REASONS
Jurisdiction
This is a merit review under schedule 2(1)(a) of the MAI Act about the amount of statutory benefits payable under Division 3.3. As such, I have jurisdiction to determine the amount of weekly benefits payable in the third entitlement period under section 3.8 based on the claimant’s earning capacity, as established on the balance of probabilities on the evidence before me. As part of determining the weekly benefits that are payable, I may weigh up the evidence and decide the amount payable based on earning capacity established on balance by the evidence.
I do not have jurisdiction to independently assess the degree of impairment of the claimant’s earning capacity. Assessment of the degree of impairment of earning capacity is a medical assessment matter under schedule 2, not a merit review matter. If the parties dispute the degree of impairment of the claimant’s earning capacity resulting from the injury caused by the motor accident, as distinct from what the current evidence establishes on balance, the parties may wish to apply for a medical assessment pursuant to schedule 2(2)(d) of the MAI Act.
Issue
The dispute is about whether weekly payments in the third entitlement period under section 3.8 of the MAI Act should be calculated on the basis the claimant has no earning capacity or on the basis he has capacity to earn $1,037 net per week based on full time employment as a light product assembler/light picker and packer. Accordingly, the issue to be determined in so far as this is a merit review is whether the evidence establishes on the balance of probabilities that the claimant has the capacity to earn $1,037 net per week, or whether it establishes he has nil capacity.
Legislation
Section 3.8 of the MAI Act relevantly provides:
“Weekly payments after second entitlement period (after week 78)
(1) A person who is injured as a result of a motor accident and suffers a total or partial loss of earning capacity as a result of the injury is entitled to weekly payments of statutory benefits under this section after the end of the second entitlement period, but only if the person—
(a) is at least 18 years of age (whether or not the person is an earner), or
(b) is under 18 years of age and is an earner.
...
(2) A weekly payment of statutory benefits under this section is to be at the rate of—
(a) in the case of total loss of earning capacity—80%, or (b) in the case of partial loss of earning capacity—85%,
of the difference between the person’spre-accident earning capacityand the person’spost-accident earning capacity(if any) after the second entitlement period.
(3) A weekly payment of statutory benefits to a person under this section is not to exceed the maximum weekly statutory benefits amount less the person’s post-accident earning capacity (if any) after the second entitlement period.
(4) A weekly payment of statutory benefits to a person under this section is not to be less than the minimum weekly statutory benefits amount or the person’s pre-accident earning capacity, whichever is the lesser.” (emphasis added)
In the first and second entitlement periods under sections 3.6 and 3.7 weekly benefits are assessed by reference to the injured person’s pre-accident weekly earnings. However, under section 3.8 pre-accident weekly earnings no longer form the basis of an assessment of the extent to which weekly benefits are payable. Instead, under section 3.8 any entitlement to weekly benefits is assessed by reference to pre-accident earning capacity.
Section 3.15 sets out requirements for the claimant to provide evidence as to fitness for work on an ongoing basis.
Pursuant to section 3.16 the insurer can make a decision about the pre-accident earning capacity or post-accident earning capacity of an injured person at any time. For example, if the claimant’s partial capacity to earn increases to a greater or full capacity the insurer can make a new decision about post-accident earning capacity at that time.
Pursuant to Schedule 1, clause 7 of the MAI Act pre-accident earning capacity means: “(1) ‘pre-accident earning capacity’ of an injured person means the weekly amount a person had the capacity to earn before the motor accident concerned in employment reasonably available to the person in view of the person’s training, skills and experience, and
(2) if the amount of an injured person’s pre-accident earning capacity cannot be determined, the amount is deemed to be the amount that is equal to
80% of the average weekly total earnings of adults in fulltime employment in New South Wales last published by the Australian Statistician.” (emphasis added)
Pursuant to the Supreme Court decision in Allianz Australia Insurance LTD v Jenkins (2020) NSWSC 412, payment of weekly benefits under section 3.8 of the MAI Act is based on net earnings, not gross.
I understand from the material that both parties agree the claimant’s pre-accident earning capacity equates to an ability to earn $1,173 net per week.
Relevantly, pursuant to Schedule 1, clause 8:
“(1) ‘Post-accident earning capacity’ of aninjured personmeans—
(a)…
(b)for any period after the second entitlement period—the weekly amount the person has the capacity to earn in
anyemploymentreasonably available to the person, determined on the basis of the person’s fitness for work in any suchemployment.
(2) …
(3) A person’s fitness for work after the second entitlement period is to be determined having regard to the following—
(a)the nature of the injury and the likely process of recovery,
(b)treatment provided and rehabilitation undertaken and the potential for further treatment and rehabilitation,
(c)the person’s training, skills and experience,
(d)the age of the person,
(e)any medical certificate provided by the injured person as to the person’s fitness for work.
(4) The Motor Accident Guidelines may make provision for the matters to be taken into account for the purposes of determining the employment reasonably available to a person in any period after the second entitlement period.” (emphasis added)
21. Clause 4.56 of the Motor Accident Guidelines (the Guidelines) sets out the matters to be considered in a determination of post-accident earning capacity, as follows:
“When determining employment reasonably available to a claimant at any time after the second entitlement period (from week 79 after the motor accident), the matters to be considered include:
(a)the nature and extent of the claimant’s injuries
(b)the claimant’s age, education, skills and work experience
(c)rehabilitation services that are being or have been provided
(d)the nature of the claimant’s pre-injury employment
(e)the claimant’s place of residence at the time of the motor accident
(f)the details given in the claimant’s Certificate of Fitness
(g)the length of time the claimant has been seeking employment
(h)any other relevant circumstances.”
Nature and extent of the claimant’s injuries and likely recovery
On balance, the evidence establishes the claimant sustained a whiplash injury to his neck with associated right brachial plexus injury in the right shoulder as a result of the motor accident.
Treatment has been conservative save for right shoulder arthroscopy and labral and cuff repair surgery on 7 November 2020 at the hands of Dr Dave. On 27 July 2021
Dr Dave reported that the claimant had made good progress and “has now got excellent range of movement up to 130 degrees”. Accordingly, surgery appears to have achieved a good outcome.
There is no indication for any further surgery. Ongoing treatment is expected to remain conservative.
The claimant’s compliance with his treatment plan has in some respects been poor. For example, his physiotherapist reported in July 2021 that the claimant’s “compliance with rehabilitative exercises has been poor” and the claimant has been “slow to obtain a neurological review from the specialist”. It seems likely that with better compliance further recovery/improvement in the claimant’s condition would be expected.
The claimant’s age, education, training, skills and work experience
The claimant is 62 years of age. He has a 40 year work history with the same employer. Vocational assessment by Pinnacle Rehab demonstrates the claimant’s solid work history is desirable to prospective employers and that he has several transferrable skills, including excellent communication skills, an ability to follow directions and communicate with managers and colleagues, strong attention to detail, organisational skills, sound knowledge of Workplace Health and Safety, the ability to work in a team and the ability to read blueprints.
The claimant’s submission that his age of 62 years, limited education and limited English skills make him incapable of performing work as a picker/packer or assembler is not supported by the evidence. The evidence establishes that the claimant was able to successfully work in a factory type role where other workers did not speak his first language for over 40 years and his ability to succeed in his previous role was not hampered by any limited education. He demonstrated excellent communication skills in his pre-accident role, despite a language barrier. Further, a survey of employers who employ picker/packer or assemblers by Pinnacle Rehab demonstrates the claimant’s age, limited English and limited education are not barriers to such roles and that the claimant’s stable prior work history puts him at an advantage on the open labour market in relation to such roles.
Treatment and rehabilitation services that are being or have been provided and the potential for further treatment andrehabilitation
The claimant has been provided with extensive rehabilitation services since at least June 2019. The available inference from the evidence is that the claimant has not actively implemented any of the job seeking skills he has acquired through rehabilitation and/or that there is a reluctance to seek or engage in employment as a light picker and packer or assembler (or further rehabilitation). The claimant informed
Rehab Management in September 2021 that he does not agree with the views of Pinnacle Rehab.
The nature of the claimant’s pre-injury employment
The evidence establishes the claimant worked as a metal bending machine operator prior to the accident. His duties included studying blueprints, drawings, and specifications to determine the requirements of a job and operating metalworking machines to shape and form steel, as required by the job.
Pre-injury employment was in a factory environment, involved operating various machines, having knowledge of machine operation, being aware of and following work, health and safety procedures, working in a team, communicating with managers and other workers in English, reading plans and blueprints in English and receiving and following instructions given in English.
The claimant’s place of residence at the time of the motor accident
It is understood the claimant resided in Sydney, Australia at the time of the accident. There is no evidence to suggest the claimant’s place of residence within Australia has any impact on an assessment of pre or post-accident earning capacity.
Details in the claimant’s Certificate of Fitness
Whilst Dr Pathiraren provides an opinion on capacity for work his report is significantly out of date (5 December 2019) and is therefore largely irrelevant to the issue of current capacity. Accordingly, I consider that little weight is to be given to Dr Pathiraren’s report.
On 15 July 2021 Ms Vuong, physiotherapist stated “unable to work (nil light duties available)” in relation to the claimant’s current capacity to work. This appears to be a reference to the claimant’s pre-accident employer terminating the claimant’s employment on the basis they were unable to offer light duties at the time rather than based on suitability for alternative employment of a lighter or more sedentary nature.
On 29 July 2021 Dr Sivarajan certified the claimant as being fit to undertake the vocational options identified by Pinnacle Rehab on 7 May 2021, namely work as a product assembler or pick and packer – light items.
On 15 November 2021 Dr Dias opined the claimant was “totally unfit for any form of gainful sustainable employment within scope of his previous education, training and experience on the open labour market” as a result of injuries sustained in the motor accident.
The claimant’s treating general practitioner (GP), Dr Sivarajan, has consistently certified the claimant as having capacity to work 40 hours per week (eight hours per day, five days per week) since at least 8 July 2021. The most recent certification certifies the claimant as being fit for full time work up to 3 February 2022.
On 6 December 2021 Dr Home opined the claimant was fit for full time work of a sedentary nature or alternatively, light manual work on a part-time basis (24 hours per week). Dr Home considered the role of product assembly of light items was feasible.
Having considered the evidence before me, I consider the opinions of Pinnacle Rehab and Dr Sivarajan are to be preferred over the opinions of Dr Dias, Ms Vuong and, to the extent the claimant says Dr Home supports his contention, the opinion of Dr Home for the following reasons:
(a) Dr Dias assessed the claimant on only one occasion. His report suggests he carried out a physical examination and considered symptoms and opinions on work capacity as self-reported by the claimant but did not carry out a full vocational assessment or detailed testing or observation. On the other hand, Pinnacle Rehab has been involved in the claimant’s rehabilitation over a lengthy period from 2019 to 2021 and has conducted multiple and extensive testing and observation across a range of areas, in addition to physical examination;
(b) Dr Dias’ assesses capacity by reference to “education, training and experience”. Whilst education, training and experience is a factor to consider under the MAI Act, it is not the exclusive test required by the definition of post-accident earning capacity;
(c) Dr Dias’ view is not shared by any treating doctor or other medical expert. The claimant’s submissions suggest it is shared by Dr Home. However, whilst Dr Home’s view is not completely aligned with that of Pinnacle Rehab and Dr Sivarajan, it is far less aligned with Dr Dias’ view that the claimant is totally incapacitated for work. As noted above, Dr Home considers the claimant fit for full time sedentary work or part time, light work. As such,
Dr Home’s opinion more closely aligns with the views of Pinnacle Rehab and Dr Siravarjan than those of Dr Dias;
(d) it appears from the content of Dr Dias’ report that he was not provided with all available information, in particular it appears he was not provided with all of Pinnacle Rehab’s reports;
(e) Dr Dias did not liaise with any of the claimant’s treatment providers. On the other hand, Pinnacle Rehab consulted the claimant’s treatment providers in addition to assessing the claimant on an ongoing basis;
(f) Dr Siravarjan also has the benefit of having reviewed the claimant on an ongoing basis since the accident. Dr Siravarjan concurs with the views of Pinnacle Rehab regarding capacity to earn, and
(g) I have considered the report of Ms Vuong but consider less weight is to be given to this report on the basis Ms Vuong is a physiotherapist. There is no indication she carried out a vocational assessment. Her opinion the claimant cannot work appears to be based on the unavailability of light duties, which would appear to be a reference to light duties not being made available by the pre-accident employer. There is no evidence that Ms Vuong has independently assessed and considered the claimant’s capacity to earn as a light picker and packer or light assembler and the inference to be drawn from Ms Vuong’s report is that the claimant has capacity to work on a light duties’ basis. It follows from this that he would be able to work in a role that is inherently light work as distinct from his more physical pre-injury employment. The roles of picker and packer and assembler have been identified as being inherently light work.
For the reasons set out above, I prefer the opinions of Pinnacle Rehab and Dr Siravarjan over the opinion of Dr Dias.
The length of time the claimant has been seeking employment
I have not been provided with any substantial evidence in relation to the claimant’s attempts to seek employment. The documents available suggest the claimant has made limited attempts to seek employment since being certified as having some form of capacity on the basis he disputes the opinions of his GP and Pinnacle Rehab.
Any other relevant circumstances
Section 1.3 sets out the objects of the MAI Act, which relevantly include:
(a)benefiting all members of the motoring public by keeping the overall costs of the scheme within reasonable bounds to keep premiums affordable, and
(b)promoting the recovery and return to work or other activities of those injured in motor accidents.
Section 1.3(4) requires a construction of the MAI Act that would promote the objects of the MAI Act to be preferred to a construction that would not promote those objects.
The second reading speech for the Motor Accident Injury Bill noted the reasons for insurers being able to regularly assess a person’s earning capacity under the MAI Act as being “to ensure that injured people who have the capacity to return to employment stay off work only as long as is necessary to support their recovery”.
Capacity relates primarily to ability to do a particular job, having regard to a range of factors, including skills, training and experience and any ongoing disabilities. There is no reason why the roles identified by Pinnacle Rehab would not be reasonably available to the claimant, given he possesses the minimum qualifications, training, skills and experience for such roles. Pinnacle Rehab are rehabilitation and vocational assessment specialists, who have had the benefit of extensive assessment of the claimant over a period. Pinnacle Rehab’s determination that the claimant would be considered a suitable candidate for picker and packer or assembler in relation to light products is based on both assessment of the claimant and discussions with potential employers concerning the claimant’s age, transferable skills, experience and functional capacity. To completely disregard the assessment and views of Pinnacle Rehab (particularly when supported by the treating general practitioner) would, to my mind, be inconsistent with the objects of the Act.
CONCLUSION
I am satisfied on balance that the evidence establishes the claimant has the capacity to earn as a light picker and packer or assembler for the reasons discussed above and in particular, on the basis that:
(a)the claimant’s injuries have been adequately treated and ongoing treatment should remain conservative;
(b)the medical evidence establishes on balance that the claimant has capacity to earn as a light picker and packer/assembler on a full-time basis;
(c)the claimant has been identified as a desirable candidate to employers of picker/packer/assemblers given his loyalty to his pre-accident employer;
(d)the claimant’s age, education and limited English skills are not likely to be an impediment to working as a picker/packer/assembler;
(e)the claimant has several transferrable skills relevant to the roles of picker/packer/assembler that make him a suitable candidate for such role, and
(f)the claimant has had the benefit of rehabilitation services and ought to be able to implement the skills, tools and strategies he has learned through rehabilitation.
I am therefore satisfied that the insurer has correctly determined the amount of weekly benefits payable under section 3.8 of the MAI Act by reference to the difference between the claimant’s net pre-accident earning capacity and his net post-accident capacity to earn in employment reasonably available to him, determined on the basis of his fitness for work in such employment.
The reviewable decision is therefore:
(a)affirmed.
LEGISLATION AND GUIDELINES
In making this decision, I have considered the following:
•The application, reply and supporting documentation;
•the MAI Act;
•the Guidelines, and
•Motor Accident Injuries Regulation 2017.
Katherine Ruschen
Merit Reviewer
Personal Injury Commission
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