Insurance Australia Limited t/as NRMA Insurance v Zelewski

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Insurance Australia Limited t/as NRMA Insurance v Zelewski [2024] NSWPIC 287
CLAIMANT:	Axel Von Zelewski
INSURER:	IAG Limited t/as NRMA Insurance
MEMBER:	Elyse White
DATE OF DECISION:	14 May 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accidents Compensation Act 1999; self-represented claimant; pre-accident medical history disclosed significant medical injuries, disabilities, and symptoms; reliability of claimant’s evidence approached with caution; whole person impairment assessed not greater than 10%; issues with claimant pre-accident employment, no records relied upon and contract for closed period; claimant 66 years old; damages limited to economic loss and treatment; Held – damages assessed in the sum of $118,369 for past and future economic loss and superannuation and treatment expenses pursuant to section 94.
DETERMINATIONS MADE:	CERTIFICATE 1. Issued under s 94 and 94A of the Motor Accident Compensation Act 1999 (Act) assessment of damages in the sum of $118,369. 2. The insurer is to receive a credit of $12,369. 3. The amount of the claimant’s costs in accordance with the Act is $8,389.15.

STATEMENT OF REASONS

INTRODUCTION

The claimant, Mr Axel Von Zelewski was involved in a motor vehicle crash on 17 December 2016. He had stopped at the intersection of Jersey Street and Pacific Highway, Hornsby towards Asquith, when the insured driver veered into the path of Mr Von Zelewski’s car.
The ambulance attended the scene of the crash before conveying him to hospital where he was examined and discharged the same day. In the material provided are photographs of the scene in which officers are attending to Mr Von Zelewski on the footpath and transport to the ambulance. There are also photographs of his silver sedan which show damage to the driver’s side door suggestive of a ‘side swipe’, and to the front of the car.
Mr Von Zelewski has made a claim for damages pursuant to the Motor Accident Compensation Act 1999 (Act).
The insurer, IAG Limited t/as NRMA Insurance wholly admitted liability for the crash.
Since lodging his claim, Mr Von Zelewski has been legally represented, however, he represented himself at the first and second assessment conferences.
I take this opportunity to thank the insurer’s legal representative for providing a hard copy of the bundles of material to ensure that I had the totality of the documentation in the same format as had been provided to the claimant. Much of the material relied on by the claimant, is either irrelevant or impossible to read due to illegible handwriting. This was mentioned by me to Mr Von Zelewski at the hearing.
The claimant has had legal representation in the past. During this time submissions were submitted on behalf of Mr Von Zelewski which I have found to be helpful in the assessment.
I take this opportunity to thank both the claimant and his wife for their personal appearance at both hearings.

ISSUES

The following issues arose:
(a)    is Mr Von Zelewski a reliable witness?
(b)    What is the extent of the claimant’s accident-related injuries?
(c)    Has the claimant established an impairment to his earning capacity which is productive of past and future economic loss?
(d)    Does the claimant have a need for past and future domestic assistance?
(e)    Has the claimant provided evidence for reasonable and necessary past and/or future treatment expenses?

Is Mr Von Zelewski a reliable witness?

Mr Von Zelewski was 57 years old when this accident occurred. He is now 63 years old. He was born in Germany although he told some of the doctors he was born in South Africa. He migrated to Australia from South Africa in February 1997.
I have two statements by the claimant dated 25 May 2017 and 24 January 2020. Apart from a brief mention of a claim he made in April 2005 in his 25 May 2017 statement, Mr Von Zelewski does not disclose any injuries, disabilities, or medical symptoms before this accident. He says “I have not suffered from any serious medical condition or complaint. On the 17 December 2017, I was not taking any prescription medications”.
In his second statement, he discloses a motor vehicle accident in 2005 in which he says he sustained a neck injury which he says was not serious and that he had made sufficient recovery.
He says he injured his foot on 14 May 2010 while boarding a train which led to a workers compensation claim. He says he was not experiencing any symptoms from this injury at the time of this accident.
His says at the time of this accident, he was not experiencing any symptoms in his neck. He suggests this accident caused an aggravation of his previous neck condition.
The insurer has asserted Mr Von Zelewski:
“…has been at best less than frank regarding his pre-accident neck and back complaints and related conditions to the medico-legal specialist. Further he has not volunteered details of certified employment restrictions caused by the 2010 injury involving left foot, left knee and left ankle complaints”.
The insurer’s submissions note at the time of this accident, he had ongoing symptoms in his left foot, ankle and knee which were current. He was receiving workers compensation certificates immediately prior to and following this accident certifying him fit only for suitable duties for four hours a day for five days a week.
The insurer has asked me to note that this position has not been disclosed to any medico-legal specialists nor did he disclose this in his application to the Personal Injury Commission (Commission).
As such, the insurer has asked me to take this lack of frankness by Mr Von Zelewski into consideration when assessing damages. I have been asked to consider whether Mr Von Zelewski is a reliable witness.

I have reviewed his statements which at best, downplay any suggestion he was suffering ongoing injuries, disabilities, restrictions, pain, or emotional anxiety at the time of this accident. He says he had made sufficient recovery or not experiencing any symptoms. The clinical notes provided by Mr Von Zelewski’s general practitioner Dr Gunawardena date from 26 February 2003 to 18 September 2017.
These notes demonstrate during this period, Mr Von Zelewski complained of, and received treatment for aching legs, pain in his left arm and right shoulder, neck, and back pain, left foot, ankle and right side of his face, shoulder, back and right leg pain. He is described as suffering degenerative changes in his cervical and lumbar spines. Treating doctors report a long history of chronic pain and sciatica.
A summary of the medical records is set out in a chronology prepared by the insurer with reference page numbers in the bundles of Mr Von Zelewski’s medical records.
Mr Von Zelewski must accept he failed to frankly disclose his past medical history in his statements and to medical experts engaged to provide opinion of his accident-related injuries. He further has failed to accept there must be a proportion of pre and post diagnosis, impairments, disabilities, restrictions and the need for treatment, domestic care, and work capacity.
I accept that Mr Von Zelewski has deliberately either failed to disclose or has downplayed the true situation of his pre-accident medical condition which impacted on his physical and mental wellbeing at the time of this accident.
I will approach his claim and evidence with a degree of caution.

What is the extent of the claimant’s accident-related injuries?

In this accident, Mr Von Zelewski says he injured his neck, back and suffered shock. He says in paragraph 11 of his 24 January 2020 statement:
“… I believe that the motor vehicle accident of 2016 has aggravated any neck condition that I had at that time and now have sharp and intense pain across the top of my neck and hurt it very easily now – when drinking, washing face/hair, drying face/hair, scratching head, push/lean against head, brushing hair and teeth, turning head when looking to cross the road”.
In that same statement he lists in paragraph 7 his disabilities caused by the accident (a) to (ll).
Prior to this accident there is a plethora of complaints made by Mr Von Zelewski to his treating doctors and medico-legal experts which are too many to repeat in this decision. To name a few will set the scene to explain the extent of his medical problems before this accident.
Professor Karl Ng, Mr Von Zelewski’s treating neurologist from around 2010 wrote in a report to Dr Gunawardena on 29 August 2014 that he had treated Mr Von Zelewski for four years after complaints of a multitude of symptoms. He had undergone extensive investigations. He says he knows he has multiple radiculopathy symptoms in his legs arising from his back and possibly from his cervical region into his arms. He had been seen by muscle experts and all tests resulted in a negative gene test. He reported to the professor a numb face progressing down his shoulders and arms. He reported developing discomfort in his right leg and foot, and occasionally, his left foot. These complaints before this accident confirm the extent of Mr Von Zelewski’s ongoing significant medical symptoms.
Mr Von Zelewski may assert he had recovered between August 2015 and this accident. However, in April 2016, eight months before this accident, he was being treated by Dr Sudipto Pol at Royal North Shore Hospital. The neurosurgical registrar reported to Dr Gunawardena that Mr Von Zelewski had chronic neck and back pain and wakes multiple times through the night. His pain goes down both legs worse on the right. Pain in his neck sometimes radiates down his arms. The doctor suggested a bone scan, injections, and a referral to a chronic pain clinic.
At the time of this accident, Mr Von Zelewski was in receipt of Workcover Certificates dated 22 November 2017 to 20 December 2017 reducing his work capacity caused by the train incident which occurred in 2010.
At the second assessment conference, Ms Dinkha asked Mr Von Zelewski about his symptoms and treatment leading up to this accident. He told me his “…neck was pretty ok”. He said he had been carrying suitcases at his work. At the end of 2015 he had travelled to his mother’s home and packed it up and arranged for his mother to be admitted to a care facility. He said he had no problems with his neck and there was no need to see doctors.
Ms Dinkha asked him about a report from Dr Lee Yang dated 12 October 2016 in which the doctor states Mr Von Zelewski was in an accident in 2005 and since then had suffered chronic neck and back pain. His MRI scan showed some degenerative changes in his cervical and lumbar spine. Mr Von Zelewski said in reply to his proposition “I told him you don’t know what you are talking about”.
Ms Dinkha took him to the report by Dr Ng and referred him to paragraph 27 above, where I have summarized the doctor’s report. Mr Von Zelewski replied, “Dr Ng used me as a guinea pig”.
She then took him to records and reports by Dr David Carmody dating back to 2000 involving a left foot injury. Mr Von Zelewski told me “I had a big fight with Dr Carmody. He sent a report to the insurance company which had wrong information”. He continued to explain the doctor reported the incorrect factual circumstances of an injury he suffered when he was running over a drain. He said the doctor even recorded the incorrect foot.
I have formed the impression if Mr Von Zelewski does not agree with a doctor’s diagnosis, he dismisses the diagnosis, opinion and any recommendations made.
Dr Gunawardena completed the medical certificate attached to the Accident Notification Form lodged by Mr Von Zelewski. The doctor recorded the diagnosis as “Neck and whole back soft tissue injuries (exacerbation)”.
Medico-legal reports have been commissioned by both the claimant and the insurer. Dealing with Mr Von Zelewski’s expert, Dr John Bentivoglio orthopaedic surgeon saw him 11 February 2020. His report is dated the following day. Mr Von Zelewski told the doctor when asked about his past medical history that he underwent tonsillectomy when he was young and an appendicectomy when he was a teenager. He considers himself to be in good health. I do not have the letter of instruction, or a list of any pre-accident records provided to the doctor.
Dr Bentivoglio diagnosed aggravation of his pre-existing abnormalities present in his cervical and lumbar spines that were previously symptomatic in this accident. He found no evidence of any nerve root irritation or compression. The doctor expected the symptoms would settle.
The extent of his injuries is noted by the doctor as neck and back symptoms with pain radiating down both limbs into his fingers and left side of his face. The pain in his back radiates down both limbs to his feet.
Dr Graham Hall occupation physician was asked by the insurer to provide opinion on the nature and extent of the claimant’s injuries. The doctor opined he suffered an aggravation of pre-existing conditions. The aggravation had persisted and reported not much had changed since before the accident. The extent of the aggravation had reduced his work and domestic capacity. Dr Hall’s assessment of the proportion of his pre-accident condition to be 70%. He based this assessment on the opinion of clinicians who treated him before.
On 22 April 2020, Dr Richard Powell orthopaedic surgeon noted Mr Von Zelewski’s long history of chronic neck and back issues prior to this accident. Dr Powell diagnosed musculoligamentous injuries of the cervical and lumbar spine and aggravation of well-established pre-existing multilevel degenerative changes in all regions. The doctor noted although treatment appears to have assisted to some extent, he continues to experience chronic neck and back pain.
Consultant neurologist Dr Ross Mellick was provided with Mr Von Zelewski’s medical history. A report has been issued by the doctor in which he does not regard the claimant to have suffered a neurological injury because there is no evidence of any neurological injury.
A dispute arose between the parties about the assessment of whole person impairment (WPI). Two applications were made to the Commission. The first was assessed by Medical Assessor Damodaran Kumar on 25 October 2021 and the second by Medical Assessor Michael Li Ying Hong on 24 January 2023.
Medical Assessor Kumar reviewed pre and post medical records and opinions. The assessor’s diagnosis is aggravation of soft tissue injury of the claimant’s neck and lower back caused by the 2016 accident. Medical Assessor Kumar assessed WPI of 5% which he found to be pre-existing.
Medical Assessor Hong accepted Mr Von Zelewski sustained Post-traumatic stress disorder and depressive symptoms caused by the accident. His WPI was 6% with no pre-existing apportionment.
I have viewed the video surveillance for periods 24 February 2020, 20 May 2020, 14 August 2020, and 6 April 2021. I observed Mr Von Zelewski to perform activities which do not align with his versions of disabilities set out in his statements. He appeared to go about chores and walks with no evident discomfort or restriction.
I have reviewed the pre-accident records of Mr Von Zelewski’s reported injuries, disabilities, and the extent of chronic pain and restrictions reported by him to his treating specialist much of which is summarized above. I have considered the opinions of the medical legal and independent assessors and their review of the nature and extent of the injuries sustained in the 2016 accident. I am mindful of the video activities observed. At best, Mr Von Zelewski suffered an aggravation to his pre-existing neck and back symptoms.
I do accept he has developed a psychological condition the extent of which is reported in Assessor Hong’s decision at paragraph 10.
In the assessment of Mr Von Zelewski’s damages, his pre-existing medical condition and aggravation caused by this accident, and the development of his depression and anxiety will be considered when assessing damages.

Has the claimant established an impairment to his earning capacity which is productive of past and future economic loss?

Mr Von Zelewski gave me a history of his employment since migrating to Australia. He told the vocational assessor his past work experience has been as a systems auditor. His formal qualifications include a bachelor’s degree in botany and zoology. He also holds qualifications in chemistry and biochemistry.

He told me he had worked at SAI Global, Requal Business Services, Fieldforce Services, National Transplantation Services, Phoenix Compliance, Mail Marketing Works, and his last position was with German Consulate. He said his duties were varied including registering visitors in and out of the consulate, transporting persons to and from the airport or to appointments.
It was put to Mr Von Zelewski there was no evidence to support his employment at the consulate. He has not produced any pay slips, taxation returns, notice of assessments, or superannuation records. There is a contract of employment between the Consulate General of the Federal Republic of Germany Sydney (Consulate) and Mr Von Zelewski dated 2 May 2016. The contract is for 12 months, from 1 May 2016 and ending on 30 April 2017.
I enquired about his bank statements into which these wages were paid. He agreed he would have these. It is for this reason I issued directions after the assessment conference to give him the opportunity to provide this evidence to support his claim of employment at the time of this accident. Nothing has been forthcoming from Mr Von Zelewski. Without records confirming the contract of employment was completed and that wages were paid, it is difficult to ascertain the relationship between the Consulate and Mr Von Zelewski.
He told me the administration at the embassy was ad hoc. He said his wages were paid directly into his City Bank account. He said he paid no tax. I note terms of the employment contract reveal the double taxation agreement between Germany and Australia. This agreement sets out the tax liability of employees residing in Australia. For Australian citizens who habitually reside in Australia, the Consulate imposed the liability to pay tax on the employee. The contract required Mr Von Zelewski to make his own arrangements for payment of local tax which would be withheld by the Consulate and paid to the Australian Taxation Office (ATO). Mr Von Zelewski indemnified the Consulate from any possible claims for the aforementioned obligation. It may be the reason Mr Van Zelewski decided not to produce any records of his wages which may have revealed a breach of his obligation to pay the tax owed to the ATO.
At the date of this accident, he may have been earning $4,836 gross per week. His bank statements may have resolved this outstanding issue. However, so far as past loss of wages, he says he was terminated in April 2017. His employment contract ended on 30 April 2017. As such, assuming he completed the contract, there is no loss.
Notwithstanding these findings, did Mr Von Zelewski suffer an incapacity to work as a result of this accident? I agree the answer to this question is, yes. The reasoning for this conclusion is explained as follows.
Although Dr Hall’s opinion of apportionment is not assessed within the Act’s guidelines, it is a guide when considering past and future economic loss and superannuation. Dr Powell apportioned Mr Von Zelewski’s pre-existing conditions as approximately 80% to his current disability. He felt Mr Von Zelewski would have been partially incapacitated for work in a period after this accident.
Dr Bentivoglio accepted Mr Von Zelewski had suffered incapacity which would impact upon his work duties.
I also accept the development of a psychological condition has impacted on his work capacity.
Based on the opinions of Doctors Hall, Powell and Bentivoglio and the Medical Assessors’ opinions, there is medical evidence to support the proposition that Mr Von Zelewski suffered an impairment to his work capacity caused by this accident.

It is unfortunate he has not provided evidence of his pre-accident earnings other than the remuneration set out in the employment contract. As such the only assessment available to me is to consider a buffer. A cushion or buffer assessment is relevant in circumstances where earning capacity has unquestionably been reduced but its extent is difficult to assess, see Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302: [2012] NSWCA 13. This is such a case.
The time since the accident is approximately seven years, three months. The employment positions undertaken by Mr Von Zelewski involved sedentary activities. Therefore, although Dr Gunawardena had issued Workcover capacity certificates reducing hours per day, he was certified fit for 50% of a working week pre-accident. It is reasonable to assume that he had a 50% work capacity for light administration duties.
Having regard to the injuries sustained in this accident and the apportionment estimates provided by some of the experts, the reasonable assessment by way of a buffer for past economic loss and past superannuation is $90,000.
In the future, the claimant’s submission seeks seven years economic loss to retirement age and claims $238,232.12 plus $29,779.01 superannuation.
The insurer says no allowance due to pre-existing injuries.
The test to be applied before assessing future economic loss is to ask what the claimant’s most likely future circumstances but for the accident?
His most likely future circumstances but for this accident are he would have struggled to work considering the complaints made due to pre-accident symptoms. He described a long list of incapacities before this accident, most of which he continues to suffer to this day. However, he may have been able to continue to work in accordance with the work capacity certificates. Therefore, it is reasonable his future circumstances were, he had a 50% work capacity but for this accident.
I accept Mr Von Zelewski has established a future work incapacity caused by this accident. This can only be assessed as a buffer keeping in mind the apportionment assessments. The appropriate buffer, noting Mr Von Zelewski turns 66 years old this year, is $15,000 including superannuation.

Does the claimant have a need for past and future domestic assistance?

Mr Von Zelewski’s submissions makes no claim for past domestic assistance.
In the future he relies on an occupational assessment by Wendy Bevan dated 11 June 2020. The amount claimed is $132,804, which is based on four hours a day at a rate of $45 per hour.
The insurer engaged Mr Peter Williamson consultant occupational therapist. He recommended there was no need for future personal care or domestic assistance.
As there is no claim for gratuitous care, the test is whether Mr Von Zelewski has a need for future paid assistance.
Dr Hall was unsure why Mr Von Zelewski reported a decrease in his ability to carry out domestic tasks. Dr Powell noted a report of receiving assistance with demanding physical tasks such as lawn mowing and gardening. Dr Mellick was not supportive of any need for care from a neurological aspect.
The surveillance reveals Mr Von Zelewski has reasonable capabilities of carrying out domestic tasks.
At the assessment conference Mr Von Zelewski told me he did his own laundry and cooking. His wife confirmed this was the case. She said he did not permit her to do household tasks for him because she did not complete the tasks properly. Mr Von Zelewski agreed this was the case.
Having regard to this evidence delivered directly to me, I have no concrete evidence Mr Von Zelewski has any need for paid domestic assistance. No assessment is made for future domestic assistance.

Has the claimant provided evidence for reasonable and necessary past and/or future treatment expenses?

The insurer confirmed the s 83 payments amount to $12,369.
In his submissions, the claimant has responded with “to be advised”.
When I enquired about any additional amounts claimed for past treatment expenses, Mr Von Zelewski advised there would be from the physiotherapist, Nick. Even though direction were issued for this material to be provided by the claimant, no additional claim has been made.
The amount assessed for past treatment expenses is limited to $12,369 for which the insurer is to receive a credit.
In the future, an ambit claim is submitted for $15,000. Without proper submissions and medical evidence, this amount cannot be maintained.
Mr Von Zelewski told me he continued to attend the physiotherapist. Otherwise, he confirmed he avoids medication and any other treatment. I was provided with a report by Nick Stepkovitch dated 1 February 2024 in which the physiotherapist reports he has treated the claimant since 2005 for multiple traumatic events. He suggested ongoing treatments, but the tone of his report is not encouraging.
I accept Mr Von Zelewski has a need for reasonable and necessary treatment apportioned to an aggravation of injuries in this accident. A buffer is the appropriate format, and the amount is $1,000.

SUMMARY

A summary of damages is as follows: -
(a)    Past economic loss and superannuation  $90,000
(b)    Future economic loss and superannuation  $15,000
(c)    Past treatment expenses  $12,369
(d)    Future treatment expenses  $ 1,000
(e)    TOTAL             $118,369

COSTS AND DISBURSEMENTS

As Mr Von Zelewski was not legally represented at the two assessments, there can be no allowance for costs on these occasions.
The initial legal costs for lodging the claim together with the disbursements submitted by the former legal representative are included in the Cost’s Calculation Sheet.

[2024] NSWPIC 287

14 May 2024