Insurance Australia Limited t/as NRMA Insurance v Strak
[2024] NSWPIC 181
•5 April 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Strak [2024] NSWPIC 181 |
| CLAIMANT: | Jan Strak |
| INSURER: | Insurance Australia Limited trading as NRMA Insurance |
| MEMBER: | Susan McTegg |
| DATE OF DECISION: | 5 April 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Assessment of damages; Motor Accidents Compensation Act 1999; self-represented claimant 75 years of age when he came off a pushbike on 2 September 2017; at date of assessment he was 81 years of age; question of mental capacity to prosecute claim where Medical Assessor (MA) Cameron suggested dementia; pre-existing injuries as a result of 11 prior accidents dating back to 1983; subsequent accident in 2021; assessed by MA Cameron at 2% whole person impairment for left shoulder; question of reliability of claimant’s evidence; Dr Teychenne diagnosed a traumatic brain injury and incomplete cervical cord lesion; Held – claimant tailored evidence to suit various claims; evidence of claimant treated with caution; not accept claimant sustained traumatic brain injury where Dr Teychenne did not have accurate history; not accepted that claimant sustained incomplete cervical cord lesion where no objective evidence on imaging and where history relied upon by Dr Teychenne to form clinical opinion is not accurate; find claimant sustained soft tissue injuries and aggravation of underlying degenerative conditions of the cervical spine, the lumbar spine and the left shoulder; damages past treatment expenses assessed at $5000; damages future treatment expenses assessed at $5000; no entitlement to past gratuitous care where no evidence care received; Boral Bricks Pty Ltd v Cosmidis; Boral Bricks Pty Ltd v DM & BP Wiskich Pty Ltd considered; future commercial assistance assessed at $10,000; disbursements assessed in favour of the claimant. |
| DETERMINATIONS MADE: | CERTIFICATE In accordance with Part 4.4 of the Motor Accidents Compensation Act 1999, the Commission’s assessment is: 1. The amount of damages assessed in respect of this claim is $20,000. 2. The amount of the claimant’s costs in the matter is $4,181.10 inclusive of GST. |
STATEMENT OF REASONS
INTRODUCTION
Mr Jan Strak (the claimant) was riding a bicycle on 2 September 2017 when a car failed to give way causing him to be thrown off his bicycle and sustain injury (the accident).
I am asked to assess the claimant’s entitlement to damages arising out of injury sustained in this accident.
The insurer has admitted liability.
Mr Strak claims he sustained injury to his head, neck, both shoulders, left hip, back and both feet. He has been referred to Dr Teychenne, neurologist who has diagnosed an incomplete central cervical cord lesion at C4/5 and a traumatic brain injury.
There is a dispute as to the injury sustained by the claimant in the accident and as to causation of the claimant’s injuries.
The claimant has not sustained greater than 10% whole person impairment (WPI). Therefore, there is no entitlement to compensation for non-economic loss.
Mr Strak was 75 years of age at the date of accident and is now 81 years of age.
He was in receipt of the Age Pension so there is no claim for economic loss. The claim for damages is limited to the following:
· past treatment expenses;
· future treatment expenses, and
· past and future care.
A Polish interpreter was present although Mr Strak’s spoken English was excellent.
Mental capacity
A preliminary issue was whether Mr Strak had the mental capacity to prosecute his claim having regard to the opinion of Medical Assessor Cameron that his presentation was suggestive of him suffering dementia.
For the purposes of s 92(1)(a) of the Motor Accidents Compensation Act 1999 (MAC Act), and clause 12A of the Motor Accidents Compensation Regulation a claim is exempt from assessment if the claimant is a person under legal incapacity. Clause 12A (2) defines a person under legal incapacity as including the following:
(b) an involuntary patient or forensic patient within the meaning of the Mental Health Act, 2007;
(c) a person under guardianship within the meaning of the Guardianship Act, 1987;
(d) a protected person within the meaning of the NSW Trustee and Guardian Act, 2009, and
(e) an incommunicate person, being a person with a physical or mental disability that prevents the person from receiving communications, or expressing their will, in relation to the person’s property or affairs.
In Masterman-Lister v Brutton & Co [2003] 3 All ER 162 Chadwick LJ described the issue when it was necessary to determine the mental capacity to give legal instructions in these terms:
“…the test to be applied, as it seems to me, is whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings. If he has capacity to understand that which he needs to understand in order to pursue or defend a claim, I can see no reason why the law – whether substantive or procedural – should require the interposition of a next friend or guardian ad litem.”
In Dalle-Molle by his Next Friend, Public Trustee v Manos and Anor [2004] SASC 102, Debelle J reviewed the common law in this area and noted at [26]:
“The level of understanding of legal proceedings must, I think, be greater than the mental competence to understand in broad terms what is involved in the decision to prosecute, defend or compromise those proceedings. The person must be able to understand the nature of the litigation, its purpose, its possible outcomes, and the risks in costs which of course is but one of the possible outcomes.”
In Ability One Financial Management Pty Limited v JB by his Tutor AB [2014] NSWSC 245 at [144] Lindsay J stated,
“… there must be a factual, functional deficiency in a person’s capacity for self-management in order to qualify for an exercise of protective jurisdiction”.
I asked Mr Strak a number of questions to assess his mental competence. He was able to tell me his age and the age he would attain at his next birthday in September. He confirmed he travelled by car to the assessment and that the arrangement had been facilitated by Suzanne (Ms Wootton). I asked Mr Strak why he was present at the Personal Injury Commission (Commission) and what he hoped to achieve. He said he would like to finalise the matter today. Whilst he was garrulous he was able to tell me it was in relation to his claim arising out of an accident on 21 September 2019 on a pushbike. He also stated it had been a long time, nearly seven years and aired his oft repeated complaint about the failure of the insurer to pay for his medication, to approve physiotherapy or provide him with care. When I asked Mr Strak if he understood my role he said he understood I was the judge and I would take points from both the insurance company and from himself.
Mr Strak said he knew he had had a lot of accidents but they were not his fault. Mr Strak noted he relied on reports from Dr Sanki, Dr Schnoudi and Dr Teychenne. He was very upset about the report of Medical Assessor Cameron who he asserted did not examine him at all, noting he did not touch him and nor did he undertake any tests.
Whilst Mr Strak voiced various complaints about the insurer he thanked Ms Wootton for arranging his transport and said she was always very nice to him
At the conclusion of those opening discussions with Mr Strak I was satisfied he was mentally competent to prosecute his claim and was not legally incapacitated.
DOCUMENTS CONSIDERED
I considered the following documentary evidence:
· a bundle of documents filed by the insurer paginated from pages 1 to 1,250 (insurer’s bundle);
· certificate of Medical Assessor Cameron dated 17 May 2023;
· email from the claimant to Ms Monica Sweer dated 18 July 2023 containing submissions by the claimant (email dated 18 July 2023), and
· joint report of Ms Dawn Piebenga, occupational therapist dated 21 February 2024.
Mr Strak provided the following additional documents during the assessment conference:
· incomplete reports of Dr Paul Teychenne to Dr Hanna dated 23 June 2023, 17 July 2023, 4 August 2023 and 4 October 2023;
· a medico-legal report of Dr Paul Teychenne dated 7 January 2024;
· a report of an X-ray of the lumbar spine dated 15 January 2024;
· a certificate of Dr Slaman Siddiqui dated 4 March 2024, and
· receipts from Dr Paul Teychenne dated 10 June 2021 and 22 November 2023 in respect of report fees.
Pre-accident medical history
The claimant was 75 years of age at the date of accident and is now 81 years of age.
Unfortunately, Mr Strak has sustained injury in 11 known prior accidents:
· motor vehicle accident – 27 August 1983 – injuries to the neck, upper and lower back together with depression;
· motor vehicle accident – 24 April 1984 – injuries to the neck, upper back and lower back together with depression;
· assault – 1986 – injury to the head;
· motor vehicle accident – 8 January 1987 – injuries to the head, neck and low back together with depression;
· motor vehicle accident – 25 February 2002 – injuries to the neck, back, shoulder, lower legs, feet together with depression;
· motor vehicle accident – 14 July 2004 – injuries to the back, head, neck, shoulder, arms, buttocks, thighs, calf, feet;
· motor vehicle accident – 19 February 2007 – aggravation of pre-existing condition;
· slip and fall/public liability claim – 4 January 2014 – injuries to neck, left knee, left hip, left side of body;
· motor vehicle accident – 21 January 2015 – injuries to neck, back, right shoulder with impingement and eyesight;
· motor vehicle accident – 15 June 2015 – injuries to neck, back and right shoulder together with visual injury, and
· motor vehicle accident – 22 January 2017 – injuries to neck, back, both shoulders, left arm and hand together with depression.
During the assessment Mr Strak disclosed his involvement in a further accident in 2021 at Cabramatta. He was on the step of a bus when he was pushed and landed in the gutter. Mr Strak said he was unconscious for a time and was admitted to hospital for about a week. He has made a claim in respect of this accident although he advised after two years the insurer Allianz have now said it is nothing to do with them. It sounds as if there is a dispute as to the correct insurer.
There was also an incident referenced in the records of an audiologist where Mr Strak’s head was struck by an automatic door in 2018. When asked Mr Strak could not remember this injury.
Mr Strak underwent a left total hip replacement in 2011, right total knee replacement in 2013 and left total knee replacement on 20 February 2014.
He also has a history of osteoarthritis, obstructive sleep apnoea, haemochromatosis, hypercholesterolemia, gastro-oesophageal reflux disease, and more recently benign prostatic enlargement.
THE EVIDENCE
The pre accident evidence
Dr Goldie, general surgeon
Dr Goldie, surgeon provided a report dated 7 October 1987. Mr Strak had been involved in an accident on 8 January 1987 and reported earlier accidents in 1983 and 1984. He found his symptoms were exaggerated and designed to impress that he was disabled.
In a report dated 16 December 1988 Dr Goldie concluded Mr Strak had sustained minor injuries from which could be expected a full recovery.
Dr Power, orthopaedic surgeon
Dr Power, orthopaedic surgeon provided a report dated 3 January 1990. He noted:
· a motor vehicle accident on 27 August 1983 whilst towing a small trailer. He underwent physiotherapy and manipulation of the back and neck under anaesthetic with some improvement.
· Injury sustained in a rear end collision on 24 April 1984 followed by manipulation and physiotherapy.
· On 1 May 1986 he had stopped suddenly when a pole penetrated and hit him on the head causing a bruise in the right temporal region.
· Following a rear end collision on 8 January 1987 Mr Strak had continuing headaches, pain in the neck radiating to the fingers of the left hand, pain and tension in the right shoulder and right elbow and low back pain radiating to the left leg.
Dr Power reported his clinical assessment revealed evidence of gross inconsistencies. He concluded Mr Strak was exaggerating his complaints.
Dr A Samad, psychiatrist
On 4 July 1990 Dr Samad reported Mr Strak was complaining about pain in the back and neck. He also complained of depression, a sexual problem and headaches. He diagnosed a depressive reaction.
Dr James Grady, psychiatrist
In a report dated 16 August 1990 Dr Grady stated Mr Strak was suffering from depression. He reported Mr Strak spent a good deal of time in bed because he feels unwell and depressed. However, he did not feel he could make a comprehensive diagnosis.
Dr Basser, physician
Dr Basser provided a report dated 20 August 1990 in respect of the accident on 8 January 1987. He concluded Mr Strak may have suffered a jarring injury to his neck and back but concluded the weakness and sensory loss in the left upper and lower limbs was without organic neurological basis.
Dr Smith, surgeon
On 22 October 1990 Dr Smith provided a report in respect of the 8 January 1987 accident. Mr Strak’s head and neck movements were noted to be free during the history taking but very restricted during the examination. He refused to flex his spine but was able to do so when undressing and dressing. He reported Mr Strak reported almost total left leg anaesthesia. He concluded it was inconceivable Mr Strak could look so well and have essentially normal X-rays whilst complaining of multiple symptoms. He did not consider Mr Strak had any current disability.
Dr Revai, psychiatrist
In a report dated 9 December 1990 Dr Revai expressed doubts about the claimant’s truthfulness and whether he suffered any psychiatric disorder. He asked Mr Strak to indicate on a diagram those parts of his body which were problematic. Mr Strak shaded nearly his entire body, specifically he shaded both legs and arms, his back except for the mid back, his buttocks, the back of his neck, the back of his head and the little finger on his left hand.
Dr Zahra-Newman, general practitioner
Dr Zahra-Newman provided a report dated 17 January 1990. He noted the claimant’s involvement in motor vehicle accidents on 27 August 1983 and on 24 April 1984 and an assault on 1 May 1986 whilst in his car. He stated he was slowly recovering and by the end of 1986 was considering a return to work when he was involved in the accident on 8 January 1987. He reported severe neck, head and low back pain.
Dr Paul Teychenne
Mr Strak was treated by Dr Teychenne from January 1983 until 7 May 1992. In a report dated 29 July 1992 he concluded Mr Strak had a lumbar disc prolapse at the time of his examination on 27 January 1988. He also found a pre-existing bilateral cervical radiculopathy was exacerbated by the 8 January 1987 accident.
Dr Abu-Arab, psychologist
In a report dated 30 October 2002 Dr Abu-Arab referred to the accident on 25 February 2002. Mr Strak reported pain in his lower back, neck, both shoulders, both arms and fingers of both hands with frequent headaches. He also reported depressed mood and lack of motivation to do day-to-day activities including household chores. Dr Abu-Arab reported Mr Strak neglects his house and he lacks the motivation to do day to day activities.
Dr Stambouliah, psychologist
On 12 March 2002 Dr Stambouliah diagnosed a significant chronic adjustment disorder with depression and anxiety associated with a chronic pain condition and the functional sequelae of the accident on 25 February 2022.
Medical Assessor Stephen re accident on 25 February 2002
In a certificate dated 4 November 2003 in respect of a treatment dispute Medical Assessor Stephen noted Mr Strak had longstanding non-specific mechanical cervical and lumbar ache for which he received the invalid pension in 1988. He found the knee symptoms were not causally related to the accident.
Medical Assessor Stephen also issued a certificate as to permanent impairment. He found the claimant’s left knee symptoms were pre-existing and he assessed a 0% WPI for both the cervical and lumbar spine.
Dr Teychenne, neurologist
Mr Strak returned to see Dr Teychenne in January 2024. In a report dated 10 February 2024 he concluded Mr Strak had symptomatic evidence of a left cervical radiculopathy and a left lumbar radiculopathy arising out of the accident on 25 February 2002.
Certificate of Medical Assessor Wilding, re accident on 25 February 2002
On 23 November 2004 he reported the accident on 25 February 2002 resulted in degenerative change in the lumbar spine and in the cervical spine. He noted inconsistencies in presentation and concluded Mr Strak had sustained musculoskeletal strain of the cervical spine and of the lumbar spine caused by the accident. He noted pre-existing osteoarthritic change in the left knee. He assessed a 0% WPI.
Certificate of Medical Assessor Dowda re accident on 25 February 2002
In a certificate dated 13 April 2006 Medical Assessor Dowda noted inconsistency in Mr Strak’s presentation and found there was a non-organic component in the claimant’s presentation. He concluded injury to the cervical spine and the lumbar spine was caused by the accident although he noted the absence of any significant structural abnormality. Mr Strak did not sustain injury to the thoracic spine, left shoulder, right shoulder, left knee and right knee in the accident. He assessed a 0% WPI.
Dr Sanki, general surgeon
Dr Sanki treated the claimant following the 2002 accident and the 14 July 2004 accident. In a report dated 7 December 2004 he concluded Mr Strak had suffered severe aggravation of pre-existing degenerative changes and injuries from the earlier accident.
Dr Spira, neurologist
In a reported dated 16 June 2005 Dr Spira reported Mr Strak was a difficult historian. He noted no definite abnormalities although he noted the left knee was swollen with a joint effusion. Mr Strak indicated the back pain was the primary condition because it caused sudden loss of power causing him to fall to the floor. He reported 20 such falls since the accident of 2002. Mr Strak was using a single walking stick. Mr Strak reported housework was largely neglected and he stated, “I live like a pig”. He had been given notice by council to clean up his yard. Dr Spira found the accident of 25 February 2002 was minor and the complaints were either exaggerated or invented.
Dr Lowy, occupational physician
Dr Lowy provided a report dated 29 May 2003 in respect of the 25 February 2002 accident. He concluded Mr Strak had degenerative disease in his spine and knees arising principally out of constitutional factors but possible transient aggravations caused by each accident. He stated progressive degenerative disease and increasing disability could be expected.
In a report dated 23 June 2005 in respect of the 2002 accident although Dr Lowy noted the further accident on 14 July 2004. He reported Mr Strak insisted on using a walking stick to facilitate his gait. On examination he found Mr Strak did not undertake maximum effort, constantly emphasising his pain. His opinion as to diagnosis was unchanged from his earlier report.
Dr McGill, rheumatologist
In a report dated 1 July 2005 Dr McGill noted Mr Strak was a poor historian. He noted a further motor vehicle accident on 14 July 2004. He was taken to Liverpool Hospital with an aggravation of symptoms and right buttock pain radiating into the right lower limb. He noted Mr Strak walked with a stick in his right hand. He noted inconsistencies on examination. Dr McGill found Mr Strak had minor degenerative changes in the cervical, thoracic and lumbar spine in keeping with his then age of 62 years. He concluded the July 2004 accident caused musculoligamentous strain of the neck and back with symptoms for up to three months whilst the effect of the 2002 accident was brief. Dr McGill reported no one mows the claimant’s lawns and his house is now messier than it was previously.
Dr Davis, occupational physician
In a report dated 19 July 2005 Dr Davis reported notwithstanding the accidents in 1983 and 1984, an assault in 1986 and a further accident in 1987 Mr Strak had no significant symptoms in his neck or lower back prior to the 2002 accident for four or five years other than experiencing an ache in wet weather.
Dr Davis concluded the accident on 25 February 2022 caused injuries to the upper and lower disc with annular tears. He also had injury to the upper and lower facet joints and direct trauma to the left knee resulting in an aggravation of the pre-existing degenerative changes.
Associate Professor van Gelder, neurosurgeon
In a report dated 29 November 2005 he noted the claimant’s involvement in the July 2004 accident. He found examination of power and function testing was not reliable or interpretable.
He noted an ultrasound of the right shoulder in January 2005 showed an injury to the supraspinatus tendon with similar findings on the left shoulder. He concluded the advanced degenerative changes in the cervical, thoracolumbar and lumbar spines had been aggravated by the 2004 accident.
Dr Alex Sharah, psychiatrist
In a report dated 15 May 2006 Dr Sharah reported depression.
Cheso Family Medical Practice
On 6 January 2014 Mr Strak reported a fall at Flemington Markets on 4 January 2014. On 23 May 2014 it was reported since that accident he had pain in the left knee, the left shoulder, the low back and the left hip.
On 30 September 2015 it was reported Mr Strak had an ongoing problem with stress and anxiety, he had a problem with the council, the courts and a lawyer.
On 24 January 2017 Mr Strak presented following the accident on 22 January 2017 at Cabramatta when he was hit on the rear side by another vehicle. He reported immediate pain over his back and neck. Mr Strak reported he had brief loss of consciousness post-accident.
On 7 February 2017 it was reported Mr Strak suffered neck, shoulder, mid back and left knee pain. He reported he did not have any help. On 20 May 2017 it was reported he was in a lot of pain and was on Endone.
Dr Sanki, general surgeon
On 22 January 2015 Dr Sanki reported the claimant sustained an injury to his head, cervical spine and right shoulder in a motor vehicle accident on 20 January 2015.
Dr Kuroz, general practitioner
On 15 June 2015 he reported Mr Strak was involved in a motor vehicle accident that morning resulting in neck and lower back pain. He reported Mr Strak was very anxious and stressed.
Dr Mastroianni, occupational physician
Dr Mastroianni assessed the claimant and provided a report dated 21 April 2016 in respect of the fall at Flemington Markets on 4 January 2014. He concluded because of the fall he sustained a soft tissue injury to the back and left shoulder. Dr Mastroianni reported prior to the fall Mr Strak did all the housework but since the fall he had needed assistance. He had two lady friends who help with the housework. He also said he had a lot of rubbish and building material in his yard which he cannot move. As a result of the injuries Dr Mastroianni found the claimant needed assistance with vacuuming and mopping but the need for assistance otherwise, including moving heavy rubbish and items in his home and yard, was required irrespective of the fall and was due to the bilateral total knee replacements.
Dr Silva, orthopaedic surgeon
In a report dated 20 June 2016 Dr Silva referred to the fall on 4 January 2014. The claimant aggravated his previous neck injury and cervical spondylosis with pain radiating down the left upper limb and a low back strain radiating to the left hip.
Dr Silva reported since the fall two Polish lady friends have been helping with cooking and cleaning but they were about to leave the area and he did not know how he would cope.
Dr Silva reported he walked with a wobble and used a walking stick.
CT scan cervical spine 28 October 2016
The report noted the presence of spondylotic changes.
CT scan lumbosacral spine, 28 October 2016
The findings were of scoliosis in the lumbar spine, spondylotic change in the discovertebral joints and arthritic change in the facet joints and in the sacroiliac joints.
Ultrasound of both shoulders, 28 October 2016
The report noted a complete tear of the right supraspinatus tendon and features of left-sided calcific supraspinatus tendinosis associated with impingement and bursitis.
Ambulance report, 22 January 2017
The accident on 22 January 2017 was described as a very low speed motor vehicle accident with absolutely no damage visible to the vehicle. Mr Strak was described as a poor historian. He was complaining of pain to the neck radiating up into the occipital head and central lower thoracic back pain. He reportedly had a good range of motion of all joints.
Auburn Hospital discharge summary
The discharge summary of 22 January 2017 noted midline cervical tenderness as well as midline tenderness to the thoracic and lumbar region. The CT scan showed nil acute fracture.
Dr Schnoudi, general practitioner
On 7 February 2017 Dr Schnoudi reported Mr Strak complained of stiffness in his neck and shoulders and pain the middle of his back and his left knee.
Dr Schnoudi assessed active range of movement (ROM) of the shoulders and noted the following:
Shoulder Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
30°
50°
Extension
10°
10°
Abduction
85°
50°
Internal Rotation
20°
70°
External Rotation
20°
20°
Ultrasound both shoulders, 21 April 2017
The right shoulder had a complete rupture of the supraspinatus tendon and mild biceps tenosynovitis whilst the left shoulder had no significant soft tissue abnormality.
The post-accident evidence
Police report
The report stated the accident occurred during daylight. The crash summary states:
“About 4.05 pm on 21 September 2017 the cyclist was riding northbound on Park Rd, Berala, as he rode past the intersection of Raglan Rd, Berala, a gold Nissan Maxima collided with the cyclist’s rear tyre causing the cyclist to fall off his bike.”
Ambulance Incident Report
Whilst we do not have a detailed ambulance report the Incident Report as at 16.15 records:
“Car into Inft whilst on his bicycle. Ambos requested as Inft doesn’t feel well. Nil bleeding”.
Motor Accident Personal Injury Claim Form
In the claim form dated 6 February 2018 Mr Strak described riding his bike when a car hit him on the left side rear propelling him into the air before landing on his head, shoulders, back and damaging his left leg. He stated he was taken to Concord Hospital in pain and shock and not fully conscious.
Concord Repatriation Hospital
On 21 September 2017 Mr Strak was admitted to hospital until 25 September 2017.[1] The discharge summary reported musculoskeletal pain following a bicycle accident. He was described as turning slowly when struck by car. He reported a painful left shoulder, cervical spine, and back. No fractures were identified on imaging and a CT scan of the whole spine was normal. No abnormality was detected on neurological examination. Mr Strak was discharged on paracetamol only and mobilisation was encouraged.
[1] Insurer’s bundle p 163.
On 25 September 2017 it was reported that Mr Strak’s home was in poor condition and needed repair.
CT scan whole spine, 22 September 2017
The report concludes:
“Cervical Spine: Normal cervical lordosis is maintained. Vertebral body heights are preserved. There is no prevertebral soft tissue swelling. No fracture.
Thoracic Spine: Vertebral body heights and alignment are preserved. No fracture. No spinal canal stenosis.
Lumbar Spine: Vertebral body heights and alignment are preserved. No fracture.”
Cheso Family Practice
On 3 October 2017 Mr Strak consulted Dr Schnoudi when he reported his involvement in the accident (see report of Dr Schnoudi referenced below). Mr Strak again attended the Cheso Family Practice on 10 October 2017, 7 November 2017, 5 December 2017, 6 February 2018 and 21 June 2018 in respect of injuries he asserts he sustained in the accident.
On 28 June 2018 Dr Schnoudi wrote to the insurer seeking approval for physiotherapy treatment on the basis Mr Strak’s condition had been exacerbated by the accident.
On 29 January 2019 Dr Schnoudi reported Mr Strak said he could not look after himself and was psychologically down. Mr Strak was not keen on the suggestion he be referred to the Aged Care Assessment Team.
On 15 September 2020 Mr Strak was referred for a psychologist under a Mental Health Care Plan. He discussed his aches and pains due to arthritis and previous accidents.
On 13 October 2020 Mr Strak stated he had more aches and pains since the 2017 accident including back pain shooting down the left leg. He sought a referral to Dr Teychenne. Dr Schnoudi noted power was okay and there was no wasting.
On 30 October 2020 Dr Schnoudi reported Mr Strak was not happy with Dr Teychenne who did not want to know he had arthritis and joint replacements.
Dr Schnoudi report
Dr Schnoudi provided a report dated 27 September 2021. He saw Mr Strak on 3 October 2017 when he complained of headache, neck and mid back pain along with lower back pain and left knee pain. He reported Mr Strak returned with a copy of the discharge summary when he complained of shoulder pain. He reported Mr Strak was in a low mood and deeply affected. His bike was completely destroyed and even his glasses were broken in the traumatic accident.
Dr Schnoudi reported he presented again in December when he could not find obvious neurological deficits.
Dr Schnoudi reported on 21 June 2018 Mr Strak complained of aches and pains everywhere and said even his vision was affected. Dr Schnoudi reported he told Mr Strak he has osteoarthritis and suggested he use a rub and take Mobic.
Dr Schnoudi reported Mr Strak returned in December when he could not find any obvious neurological deficits. He referred Mr Strak to Dr Teychenne. He noted Dr Teychenne found a traumatic brain injury on a clinical basis even though the MRI of the brain was unremarkable. Dr Schnoudi considered Mr Strak required psychological assistance.
Dr Schnoudi reported an ultrasound of both shoulders on 21 April 2017 showed mild biceps tenosynovitis in the right shoulder with probably a complete rupture of the supraspinatus tendon. He noted left shoulder tenosynovitis of the biceps tendon; the rotator cuff was normal. Dr Schnoudi reported movements in the left shoulder were satisfactory but severely restricted on the right side.
Aima Khan, audiologist
In a report dated 26 July 2018 Ms Khan reported Mr Strak was hit by an automatic doo which resulted in a head injury in April. Since that injury he had noticed a decline in his hearing and his tinnitus had worsened. She noted responses were inconsistent during testing and advised Mr Strak to come back in a week for a reassessment but Mr Strak declined to do so.
Ultrasound left shoulder, 16 October 2017
The report concluded:
“There is a near complete acute tear of the supraspinatus tendon associated with impingement and bursal distention. A large glenohumeral joint effusion was also present.”
CT scan cervical spine, 16 October 2017
The report concludes:
“Cervical vertebral column demonstrates normal alignment … degenerative endplate changes of a moderate degree … small disc bulges produce narrowing of the right C3/4, C5/6 and C7/T1 neural foramina as well as left C3/4 and C6/7 neural foramina … the thoracic vertebral column demonstrates normal alignment … body height and disc space are preserved. Mild degenerative endplate changes…. No significant disc lesion is seen. … Lumbar spine, degenerative endplate changes extend from the L2/3 to the L5/S1 level … coupled with posterior osteophytes, disc bulges and ligamentum flavum hypertrophy resulting in neural foramina with encroachment on the … nerve roots … severe degenerative facet joint changes ….”
X-ray left shoulder, 16 October 2017
The report showed moderate degenerative change in the glenohumeral joint and mild degenerative changes in the sternoclavicular joint.
Dr Sanki, general practitioner
In a certificate dated 6 February 2018 Dr Sanki noted a painful cervical spine, neck and shoulders He diagnosed an aggravation of the degenerative cervical and lumbar spine.
Mr Strak statement
An unsigned statement with a date received stamp of 13 May 2019 states:
“My name is Jan Stark and I live in Regents Park. This is a document to the Dr Sanki. I have been in the car accident at the corner of Rickard Road and Chapel Road, Bankstown on the 15 June 2015. … The car accident has caused me injuries in the neck, right shoulder affecting my overall right-hand functionality, neck, right leg with feeling of pin and needles which causes a constant pain creating problem in walking (I use stick), this caused loss of vision. … .
I had been in a car accident on the 22 Jan 2017 at 5.30 pm at the St Johns Road Cabramatta which involved ambulance call … . This accident caused me pain on left shoulder (feeling of pin and needles on left hands), this accident has caused me to suffer from the neck, constant headache, feeling of pain, needles on the left leg, and loss of hearing.
The QBE is insurer for both the cases…
Both the accident has affected my life and I can not look care of myself, my property and daily activities.
Recently, the Cumberland council has charge me with a $10,000 as fee for cleaning and I have to pay it.
1. I need assistance to maintain my property which is in a very bad condition both outside and inside.
2. The accident has caused my injuries which makes it difficult for me to take care of my house and myself. I need someone to help me Approx. 16 hours a week (4 hrs/day, 4 days/wk).”
During the assessment Mr Strak was asked if he was the author of that statement. He could not recall. When asked if he provided that statement to Dr Sanki to assist him in writing a report in support of claims arising from the 2015 and January 2017 accident he could not recall.
Dr Sanki, general practitioner
Dr Sanki provided a report dated 4 May 2019 addressing the 15 June 2015 and 22 January 2017 accidents. He concluded the second accident made the claimant’s condition worse, the pain in his neck was radiating to the left forearm and he also had pain in thoracic spine. Dr Sanki reported when recently seen Mr Strak said the two accidents had caused upheaval in his life because he was unable to enjoy his life, could not clean his home properly, and was unable to bend over or carry things. He was using a walking cane and needed assistance of 16 hours per week.
MRI cervical spine, 6 July 2021
The report concluded:
“Discovertebral changes with multilevel facet joint arthropathy and hypertrophic facet joint changes. There is multilevel foraminal stenosis with root impingement.
No cord compression.”
Ultrasound both shoulders, 28 April 2021
The report concluded there was a complete tear of the right supraspinatus tendon and a high-grade full-thickness tear in the left supraspinatus tendon. There was bilateral impingement and bursitis. There were also features of a full-thickness tear of the right infraspinatus tendon.
CT lumbosacral spine, 28 April 2021
The report concluded:
“Disc bulges at the L4/5 and LS/S1 level coupled with ligamentum flavum hypertrophy produced canal stenoses and are associated with severe degenerative facet joint changes.”
MRI brain and whole spine, 6 July 2021
The report concluded:
“Clinical indication: Loss of consciousness.
Mild microvascular ischaemic gliosis. No evidence of traumatic brain injury. Right maxillary sinus disease.
Discovertebral changes with multilevel facet joint arthropathy and hypertrophic facet joint changes. There is multilevel foraminal stenosis with root impingement. No cord compression.”
MRI Thoracic and lumbar spine, 8 July 2021
Noted an indication by Dr Teychenne of upper motor neuron signs, myelopathic weakness. The report concluded:
“1. Mild thoracic spondylosis with low-grade disc bulges without cord nor nerve root compression.
2. Multilevel thoracic facet joint arthropathy and mild foraminal narrowing but no root impingement.
3. Moderate lumbar spondylosis with endplate oedema at L1-2. There Is multilevel facet Joint arthropathy with degenerative spondylolisthesis at L5-S1. There is mild canal narrowing but no definite cause for radiculopathy.
4. No Intrinsic cord signal.”
Dr Paul Teychenne, neurologist
On 29 August 2021 Dr Teychenne provided a detailed report. He first saw Mr Strak on 12 November 2020 when he presented with musculoskeletal pain subsequent to the accident.
Dr Teychenne reported Mr Strak was travelling at about 20kmph and he was hit at about 40kmph. He stated Mr Strak was thrown in a somersault landing about two metres away on the right shoulder. He stated he hit the right frontal region of his head on the road and his head was laterally flexed to the right and rotated to the left when he was knocked off the bike. Dr Teychenne reported an inability to take weight on his legs and he had to sit down. He also reported Mr Strak lost consciousness for about five minutes or was amnesiac for that period of time. He reported immediate pain over the neck, a sharp headache and pain over the lower thoracic lumbar spine.
Dr Teychenne reported Mr Strak noted numbness in the sole of the left and right foot three days after the accident and pins and needs down the right shoulder into the right arm to the fingers two months after the accident. He also reported loss of balance and vertigo 40 minutes after the accident.
Dr Teychenne reported episodes of urinary incontinence up to four to five times a week and bowel urgency and occasional incontinence when reviewed on 22 April 2021.
He noted Mr Strak had a slow small, stepped gait and dragged and scraped both feet as he walked. He was slow standing up from a chair.
Mr Strak complained of memory deficit since accident. Dr Teychenne noted there was no evidence of a traumatic brain injury but on the basis he was forgetful and lost consciousness for about five minutes or was amnesic for that period of time when he hit the right frontal region of his head on the road it was probable he sustained a mild traumatic brain injury.
Dr Teychenne reported Mr Strak described spinal concussion in the period after the accident, he was also unconscious and his memory deficit since the accident was consistent with a traumatic brain injury.
Dr Teychenne reported an MRI of the cervical spine did not show any cord compression but he concluded on clinical grounds it was probable that there was damage at the level of C4/5 where he had a low grade disc bulge with thecal sac compression which would leave him susceptible to an incomplete central cervical cord lesion because of the injury described where he had been hit with an impact significant enough to somersault him through the air.
Dr Teychenne diagnosed an incomplete central cervical cord lesion at C4/5 and a traumatic brain injury and assessed a WPI of 37%.
Dr Teychenne concluded Mr Strak required help for heavy domestic duties such as scrubbing, vacuum cleaning, pushing and pulling furniture, hanging out heavy washing, gardening and lawn maintenance. He also considered he required handyman help.
Dr Teychenne provided a comprehensive report dated 7 January 2024. Dr Teychenne reported Mr Strak had been referred to him on 13 October 2020 by Dr Nabeel and again by Dr Hanna on 23 June 2023. He reported at that time Mr Strak was taking:
· Mobic 15mg;
· Panadeine Forte;
· Osteomol 665;
· Super Bio Magnesium;
· Glucosamine Sulphate with Chondroitin, and
· Vitamin D3.
Dr Teychenne noted Medical Assessor Cameron indicated Mr Strak found it difficult to concentrate and was inconsistent in his response. Dr Teychenne reported he had always found Mr Strak to be consistent although excessively talkative. Noting Medical Assessor Cameron said he found it difficult to obtain succinct answers from Mr Strak, Dr Teychenne agreed Mr Strak needed to be kept on line when obtaining his history to avoid unnecessary details. He stated even though he can be garrulous he was always consistent in indicating his neurological deficits.
Dr Teychenne stated Medical Assessor Cameron had indicated there were balance problems and Mr Strak needed a walking stick. Dr Teychenne opined that imbalance is a major feature of an incomplete cervical cord lesion. However, he has not taken into account Mr Strak’s need for a walking stick prior to the accident as documented by Dr Silva and Dr Sanki.
Dr Teychenne concluded based on the description of the accident Mr Strak was a likely candidate to have sustained a traumatic brain injury and he concluded any cognitive deficits were due a traumatic brain injury and not because he was demented.
Dr Teychenne also reported the claimant’s presentation including his gait was consistent with an incomplete cervical cord injury where he had significant restriction in movement of the cervical spine and clinical neurological deficits.
Medico-legal reports
Associate Professor Shatwell
In a report dated 19 October 2020 Associate Professor Shatwell noted Mr Strak complained of severe low back pain radiating from the left buttock into the left thigh, pain from the right buttock to the right knee, shoulder pain worse on the right side, neck pain and pain in the replaced knee joints.
He noted Mr Strak said he was taking Panadol Osteo for pain and intermittent Endone up to twice weekly. He also took Mobic intermittently.
He reported Mr Strak had hemochromatosis, he had left total hip joint replacement in 2011, right total knee joint replacement in 2013 and left total knee joint replacement in 2014. He has diverticulitis, hypercholesterolemia and obstructive sleep apnoea.
He noted gross illness behaviour on examination. He also reported Mr Strak had an agile mind and despite his claims of a poor memory when pressed he could remember detail.
He considered his complaints related to “constitutional degenerative change due to osteoarthritis, which is known to be associated with haemochromatosis and is common in the weight-bearing joints” as evidenced by the three joint replacements undergone by Mr Strak. He did not consider the osteoarthritis in both shoulders to be related to the accident.
Associate Professor Shatwell concluded the accident of 21 September 2017 was a low speed accident which did not cause any significant aggravation of the underlying chronic degenerative spinal and shoulder conditions.
He reported Mr Strak managed his own household without assistance other than from some friends on occasions. He did not consider there was any need for domestic assistance.
Dr O’Sullivan, neurologist
Mr Strak refused to attend an appointment with a neurologist arranged by the insurer. Dr O’Sullivan provided a report to the insurer dated 18 October 2022 after undertaking a paper review.
Dr O’Sullivan noted Mr Strak first saw Dr Teychenne on 9 July 1985. He provided a report dated August 1986 where he diagnosed a whiplash injury in August 1983, with clinical evidence of cervical radiculopathy and evidence of lumbar radiculopathy.
Dr O’Sullivan also reviewed a report of Dr Teychenne dated 10 February 2004 relating to an accident on 25 February 2002. He considered Mr Strak had bilateral C5/6 radiculopathy on clinical grounds and based on EMG studies even though no major lesion was apparent on an MRI scan.
Dr O’Sullivan reviewed the report of Dr Teychenne dated 29 April 2021 and the neurophysiological studies and found no significant abnormality.
Dr O’Sullivan concluded Mr Strak did not sustain any progression of his chronic cervical spondylytic degenerative disease or any progression of his chronic lumbar spondylytic degenerative disease. Dr O’Sullivan did not find any evidence of a closed head injury or traumatic brain injury.
He also concluded there was no evidence of a closed head injury/traumatic brain injury. He noted it was a very low speed accident according to the Ambulance Report and he was able to return home to put his groceries into the fridge. Although he attended Auburn Hospital subsequently there were no abnormal neurological signs found at the hospital.
Dr O’Sullivan noted Mr Strak required assistance for gardening but he did not consider the need for assistance was caused by the accident.
Dawn Piebenga, occupational therapist
In a report dated 21 February 2024 Ms Piebenga concurred with the opinion of Associate Professor Shatwell and Medical Assessor Cameron. She considered he had ongoing pain in his spine and shoulder girdle that had the potential to compromise his functionality but considered it was caused by his pre-existing condition.
Ms Piebenga assessed Mr Strak at his home on 9 January 2024. She noted that whilst he would have had difficulty with tasks involving overhead reach in the weeks following the accident no past gratuitous assistance was provided.
She also concluded he did not require future gratuitous or commercial assistance.
Medical Assessment Certificate
Mr Strak was assessed by Medical Assessor Cameron. He issued a certificate dated 17 May 2023.
He found the following injuries were caused by the accident:
· cervical spine – soft tissue injury;
· lumbar spine – soft tissue injury, and
· left shoulder – soft tissue injury.
On the basis the contemporaneous clinical records do not show evidence of a traumatic brain injury he concluded injury to the brain – traumatic brain injury was not caused by the accident. He felt Mr Strak’s presentation of cognitive impairment was consistent with having dementia.
He assessed 0% WPI for both the cervical spine and for the lumbar spine. In the cervical spine he found no atrophy, no muscle spasm, no muscle guarding and no dysmetria. Non-verifiable radicular complaints were not present. Reflexes were within normal limits, nerve tension signs were negative and there was no weakness or loss of sensation.
Similarly in respect of the lumbar spine Medical Assessor Cameron found no atrophy, no muscle spasm, no muscle guarding and no dysmetria. Non-verifiable radicular complaints were not present. Reflexes were within normal limits, nerve tension signs were negative and there was no weakness or loss of sensation.
In assessing the left shoulder Medical Assessor Cameron noted movements of the shoulder were inconsistent and he undertook the assessment by analogy. He considered the impairment would be equivalent to mild crepitation at the acromioclavicular joints and assessed a 2% WPI.
Mr Strak was very upset about the assessment undertaken by Medical Assessor Cameron. He asserted he failed to consider the expert opinion of Dr Teychenne, he did not examine the claimant at all and described his report as “fake”. Mr Strak asserted Medical Assessor Cameron discriminated against him because of his age. He was critical of the Commission in appointing Medical Assessor Cameron as a medical assessor where he was biased towards the insurer.
Mr Strak filed an application for review but on 11 August 2023 the delegate of the President declined Mr Strak’s application for review of the assessment of Medical Assessor Cameron.
I informed Mr Strak that the report of Medical Assessor Cameron was binding under the law in relation to his entitlement to damages for non-economic loss, that is, pain and suffering. I informed Mr Strak because he was not able to establish that he had sustained a WPI greater than 10% he would not be entitled to recover compensation for his pain and suffering.
Oral evidence of Mr Strak
Mr Strak stated when the accident occurred he was thrown eight or nine metres and landed on the kerb. He said he lost consciousness for some minutes. He recalled both the police and ambulance attended the scene. He was transported to hospital where he remained for four or five days.
When asked how he felt between the January 2017 accident the pushbike accident Mr Strak stated he felt well and was using the bike. He stated he mostly used the bike for transport for shopping and when needed. He stated he had not used the pushbike since the accident.
When asked if he was unconscious following the January 2017 accident Mr Strak responded there was no suggestion he had suffered a brain injury until he saw Dr Teychenne.
Mr Strak informed me he had been looking for a lawyer but no one would take it, stating there was not proper justice in Australia.
Since the accident Mr Strak stated he had undergone physiotherapy five times a year through Medicare.
Mr Strak was questioned about the report of Ms Piebenga. He stated there were inaccuracies in her report, for example, she said he showers at least every second day whilst Mr Strak stated he showers twice a day, sometimes three times a day.
I asked Mr Strak about the accumulation of materials in his yard and his assertion that prior to the accident he intended to undertake a renovation. I asked him to identify any steps he had taken prior to the accident preparatory to undertaking the renovation of his house. He agreed that he had laid the concrete slab as the foundation for an extension a long time ago and that whilst he had fixed up the fence, it was many years ago. Mr Strak stated he had put new gutters on but when pressed conceded it was some years ago.
When asked, Mr Strak was not able to remember what tasks he had undertaken in the house before the accident. He stated a friend, Katin assisted by doing some cooking and cleaning until she returned to Poland about one year ago. Mr Strak was unable to identify specifically what tasks Katin had undertaken for him other than to say it was cooking, cleaning, washing and help with shopping.
I reminded Mr Strak that it had been suggested he undergo an Aged Care Assessment Team (ACAT) assessment to see if he qualified for some home help and he had declined. Mr Strak stated that was because he was ashamed but he also stated if he could find the right person he would pay them to come into his house to clean.
In relation to treatment Mr Strak stated he mainly takes Osteomol for pain, generally two pills twice a day. From time to time, he takes Mobic and he also takes herbal medicines, vitamins and medication for his prostrate condition.
When asked Mr Strak could not remember if he injured his neck and right shoulder in the June 2015 accident. He conceded he made a claim for the January 2017 accident, however, he noted that he recovered and was able to ride a pushbike at the time of the accident.
Mr Strak stated since the subject accident he has not been able to ride a pushbike, he cannot go up steps and he cannot do any work on his place.
THE RELIABILITY OF THE CLAIMANT’S EVIDENCE
I agree with Dr Teychenne and Medical Assessor Cameron that Mr Strak was garrulous and seemed incapable of providing succinct answers. However, he was polite and with encouragement was able to address the questions asked.
However, I also noticed that whenever he was asked a question which challenged the narrative he sought to present his recollection would fail.
I formed the view Mr Strak’s evidence has been tailored to support the various claims he has pursued arising out of varying accidents. For example, the statement, which he could not recall providing, of May 2019 which appears to be in near identical terms to the report of Dr Sanki dated 4 May 2019 was referrable to the two claims against QBE Insurance (Australia) Limited arising out of accidents on 15 June 2015 and 22 January 2017. Notwithstanding the intervening accident of 21 September 2017, Mr Strak reported upheaval in his life, the need to use a walking cane and a need for assistance of 16 hours per week was due to the two earlier accidents.
However, when questioned Mr Strak could not recall needing assistance arising out of those two accidents and was at pains to suggest that he had largely recovered from the effects of the 2015 and January 2017 accidents prior to the subject accident. The evidence relied upon by Mr Strak to demonstrate the improvement in his condition was his ability to ride a pushbike. I find there is some force in this proposition, because the balance required to ride a pushbike is not consistent with a man unable to walk without a walking stick.
I also note the claimant’s involvement in numerous accidents over the last 40 years and appreciate the difficulty in disentangling the injury sustained in each accident.
Having regard to my concerns about the reliability of the claimant’s evidence I propose to treat it with caution.
THE INJURY SUSTAINED BY THE CLAIMANT
It is significant that Mr Strak has a long history of musculoskeletal complaints and osteoarthritis.
Traumatic brain injury
Mr Strak said he sustained injury to the brain in the accident when he came off his pushbike. He stated the injury had been documented by Dr Teychenne who had undertaken tests to support his opinion where Medical Assessor Cameron had not.
Dr Teychenne reported the MRI of the brain was unremarkable but he concluded the claimant had sustained a traumatic brain injury on a clinical basis, that is, on the basis the claimant was forgetful and lost consciousness or was amnesiac for about five minutes when he hit the right frontal region of his head on the road.
There is no objective evidence of a traumatic brain injury caused by the accident. Concord Hospital reported no abnormality was detected on neurological examination and no record was made of a loss of consciousness following the accident. The clinical notes of Concord Hospital suggest Mr Strak reported a painful left shoulder, cervical spine and back. When Mr Strak consulted Dr Schnoudi on 3 October 2017, approximately two weeks post-accident no record was made of a loss of consciousness or a head injury although Mr Strak complained of headache, neck and back pain and left knee pain. Dr Schnoudi could not find any obvious neurological deficits. The MRI of the brain of 6 July 2021 found no evidence of traumatic brain injury.
Dr Teychenne’s opinion is based on the history provided by Mr Strak. However, I am not satisfied as to the accuracy of that history, particularly where it is not verified by contemporaneous records pertaining to the accident and where Mr Strak suffered a head injury during the assault in 1986, in the motor vehicle accident on 8 January 1987, and in the motor vehicle accident 14 July 2004 where he allegedly suffered a loss of consciousness. Dr Teychenne was apparently not aware of the head injury sustained in April 2018.
On the available evidence I am not satisfied Mr Strak sustained a traumatic brain injury in the accident.
Injury to the cervical spine
I note Mr Strak identified a painful left shoulder, cervical spine and back when he attended Concord Hospital following the accident. Dr Schnoudi also reported complaints of headache, neck pain, back pain and left knee pain following the accident. Shortly thereafter he also reported shoulder pain.
Whilst Dr Teychenne diagnosed an incomplete cervical cord lesion at C4/5 he did so on the basis the accident impact was significant enough to somersault him through the air. Dr Teychenne did not see Mr Strak until 12 November 2020, some three years post-accident. On that occasion Dr Teychenne carried out a number of tests including Evoked Response testing which did not evidence a significant brainstem or lower cerebral lesion.
Having regard to the lack of contemporaneous corroborative evidence that the accident impact caused Mr Strak to somersault through the air two metres according to the report of Dr Teychenne or eight or nine metres according to the evidence of Mr Strak, and where there is no objective evidence on imaging of an incomplete cervical cord lesion at C4/5 I do not accept the opinion of Dr Teychenne.
The opinion of Dr Teychenne is also unreliable where he has not been provided with a complete history of the accidents in which the claimant was involved in the years prior to the subject accident. Other than the comment that Mr Strak had been involved in several motor vehicle accidents he was not apparently aware of his involvement in the 2015 accident and the January 2017 accident referenced by Dr Sanki in his report of 4 May 2019.
I prefer the opinion of Associate Professor Shatwell and Medical Assessor Cameron that the claimant sustained soft tissue injury to the cervical spine in the subject accident. Dr Sanki also diagnosed aggravation of cervical and lumbar degenerative disease. However, having regard to the claimant’s underlying vulnerability and consistent complaint since the accident I am satisfied the soft tissue aggravation of the claimant’s underlying degenerative disease continues.
Injury to the lumbar spine
There is no dispute the claimant has sustained a soft tissue aggravation of the underlying degenerative disease. Again, having regard to the claimant’s underlying vulnerability and consistent complaint since the accident I am satisfied the soft tissue aggravation continues.
Injury to the left shoulder
It is apparent the complete tear of the supraspinatus tendon was present prior to the accident noting it was identified on the ultrasound of 28 October 2016.
However, when he was assessed by Concord Hospital he reported a painful left shoulder. Medical Assessor Cameron assessed a 2% WPI and Ms Piebenga also reported ongoing pain the shoulder girdle.
I find the claimant sustained a soft tissue injury to the left shoulder caused by the accident.
THE ASSESSMENT OF DAMAGES
Past treatment expenses
The insurer has met payments on the claimant’s behalf to the Cheso Family Medical Practice in the sum of $188.
At the assessment conference Mr Strak brought along various treatment accounts. However, on review it was not clear that all items were referrable to the soft tissue injury sustained by the claimant in the accident. The accounts included herbal remedies and vitamins.
Mr Strak brought with him three medication boxes as follows:
Mobic 30 tab dated 24 April 2021 at a cost of $8.48;
Meloxicam 30 tab dated 25 August 2022 at a cost of $5.80, and
Osteomol 96 tablets dated 26 September 2023 at a cost of $6.30.
Whilst Mr Strak stated he generally took Osteomol the insurer argued the need for Osteomol was due to the underlying osteoarthritis and not the soft tissue injury sustained in the accident. However, having regard to my findings that the claimant has sustained an aggravation of the underlying degenerative disease I consider it reasonable that he be entitled to recover the cost of Osteomol.
It seems from available medical records that the claimant attended psychologist Dr Koletti on at least three occasions, namely 22 November 2017, 20 February 2018 and 20 September 2018. In the absence of a current Medicare Notice of Charge referrable to this accident it is impossible to know what other treatment expenses may have been paid by Medicare.
Mr Strak stated he had not kept his receipts where the insurer refused to pay his treatment costs. It is also significant that there is no current Medicare notice of charge.
The insurer submitted that past treatment expenses are best addressed by the awarding of the sum of $5,000 inclusive of the sum of $188 made by the insurer. I agree. In the absence of the records to verify the amount of treatment expenses paid by Mr Strak and where his medication costs appeared to have been modest, but keeping in mind it is now over six years since the accident I consider an award of $5,000 for past treatment expenses to be appropriate.
Future treatment expenses
Mr Strak’s evidence was that he has availed himself of the opportunity to undertake physiotherapy as funded by Medicare each year. He also continued to take medication, Osteomol and from time to time Mobic or Meloxicam.
The insurer relies upon the opinion of Associate Professor Shatwell to argue there is no need for future treatment referable to the accident. In the alternative the insurer submits a small buffer of $5,000 would be appropriate allowance for future treatment expenses.
Having regard to my findings that the accident caused Mr Strak to sustain an aggravation of his underlying degenerative disease I consider it appropriate to make an allowance for future treatment expenses.
I consider a buffer of $5,000 to be appropriate to cover Mr Strak’s medication costs and the cost of medical review and physiotherapy from time to time keeping in mind Mr Strak is now 81 years of age with a life expectancy of eight to nine years.
I assess damages for future treatment expenses in the sum of $5,000.
Domestic assistance
An entitlement to recover damages for gratuitous assistance arises where a need for care or domestic assistance has been caused by the accident. However, s 141B imposes a threshold prohibiting the recovery of compensation for services provided for less than six hours per week and for less than six months.
Where Mr Strak has not received any gratuitous assistance with domestic tasks for at least six hours a week and for a least six months which is causally related to the accident there is no entitlement to damages for past gratuitous care.
However, there may be an entitlement to future commercial care if I am satisfied Mr Strak has established an accident related need for care and he is likely to source commercial assistance.
The insurer submits the claimant has suffered significant longstanding medical conditions including osteoarthritis resulting in bilateral knee replacements and a left hip replacement. The insurer also notes the claimant’s inability to maintain his premises has been a matter of a long running dispute with his local council dating back to about 2000.
Furthermore, the insurer submits Mr Strak has reported difficulty undertaking domestic activities from time to time noting specifically the comments made by Dr Mastroianni and Dr Silva in 2016.
It is also significant that in both the unsigned statement and the report of Dr Sanki dated 4 May 2019 the need for domestic assistance was estimated at 16 hours per week and was said to be referrable to the 15 June 2015 and 22 January 2017 accidents. This seems to be an attempt by Mr Strak to bolster his claims arising out of each of those accidents and I have little doubt he would make the same claim arising out of the subject accident. As I have already indicated Mr Strak’s evidence in that regard is not reliable.
However, what is more persuasive is that Mr Strak was riding a pushbike at the time of the subject accident suggesting a degree of recovery from the earlier accidents including the 22 January 2017 accident.
I do not accept Mr Strak would have undertaken the house renovations to which he referred having regard to the significance of that task, where it seems Mr Strak has over many years developed a hoarding disorder.
I have had regard to the report of Ms Piebenga. Whilst I do not accept her opinion as to the need for assistance where she has relied upon the opinion of Associate Professor Shatwell to conclude any need for assistance was caused by his pre-existing condition I note she found the ongoing pain experienced by Mr Strak in his spine and shoulder girdle had the potential to compromise his functionality.
I consider the extent of any future need to be a matter of speculation and not capable of precise calculation. Therefore, I consider it appropriate to adopt the approach taken by the Court of Appeal in Boral Bricks Pty Ltd v Cosmidis; Boral Bricks Pty Ltd v DM & BP Wiskich Pty Ltd (2013) NSW CA 443 and award a buffer for the impairment of the claimant’s future domestic capacity.
I only propose to award a modest buffer of $10,000 having regard to the following:
· the impact of the accident on the functionality of an already vulnerable man of advanced years;
· that I am not totally convinced Mr Strak will avail himself of commercially sourced domestic assistance, having regard to his reluctance to undergo an ACAT assessment;
· that there is a need for domestic assistance as evidenced by the report of Ms Piebenga;
· the difficulty in determining to what extent the need for care is related to the impact of the subject accident as opposed to the impact of the numerous other accidents to which Mr Strak has been exposed and his underlying degenerative condition, and
· his limited life expectancy of eight to nine years.
I assess damages for future commercial care in the sum of $10,000.
ASSESSMENT OF DAMAGES SUMMARY
I assess the claim as follows on the findings set out above:
· past treatment (incl. s 83 payments) $5,000
· future treatment $5,000
· future commercial care $10,000
TOTAL DAMAGES ASSESSED $20,000
The insurer is to have credit for the following payments in accordance with s 130 of the MAC Act:
· s 83 payments: $188.
COSTS AND DISBURSEMENTS
Where Mr Strak was not legally represented there is no entitlement to recover professional costs. However, he is entitled to recover disbursements including medical report fees but only in accordance with the scale fee.
The insurer agrees Mr Strak is entitled to recover the scale fee in respect of report fees paid to Dr Teychenne in respect of his report dated 29 August 2021 in the sum of $1,200 and in respect of his report dated 7 January 2024 in the sum of $1,387.
The insurer also agrees Mr Strak is entitled to recover the scale fee in respect of the report of his general practitioner Dr Schnoudi in the sum of $289 and one treating specialist report in respect of the report of Dr Sanki in the sum of $925.
Accordingly, I assess disbursements in the sum of $3,801 plus GST in the sum of $380.01 in the total sum of $4,181.10.
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