Issa v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPIC 104
•22 February 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Issa v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 104 |
| CLAIMANT: | Monzir Issa |
| INSURER: | NRMA |
| MEMBER: | Allan Cowley |
| DATE OF DECISION: | 22 February 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accidents Compensation Act 1999; damages assessment only; no non-economic loss; claimant electrician suffered soft tissue injuries only, but such that he could no longer work on the tools; now 95% supervisory but has increased profits; modest buffer for past and future, $50,000 each; no future commercial care; Held – damages assessed is $102,581.20. |
| DETERMINATIONS MADE: | CERTIFICATE In accordance with Part 4.4 of the Motor Accidents Compensation Act 1999, the Personal Injury Commission’s assessment is: 1. The amount of damages assessed in respect of this claim is $102,581.20. 2. The amount of the claimant’s costs in the matter is $32,177.42 inclusive of GST. |
INTRODUCTION
The claimant Mr Issa is a relatively young man now aged 37.
On the day of the accident, he was driving his new Toyota Hilux twin cab work vehicle with his wife in the front passenger seat and three children in the rear seats.
He was travelling in Canterbury Road and slowed down to about 10kmph in order to turn left into Rawson Street from Canterbury Road.
As he was turning left the insured vehicle that was travelling in the opposite direction apparently lost control of his vehicle and as a result drove directly into the right driver’s side door of the claimant’s vehicle with substantial force such that the claimant’s vehicle was pushed sideways across the road over the kerb and onto the footpath and then collided with a street pole which finally brought the claimant’s vehicle to a stop.
I accept that the claimant suffered significant lateral and medial forces of those impacts such that his body was heavily jerked sideways, back to front and up and down.
When the claimant alighted from his vehicle in order to assist his wife and family, he was immediately aware of a left knee injury.
Police, ambulance, and fire brigade attended the scene of the accident but were mostly concerned with the severely injured insured driver, although the claimant was attended to by paramedics he did not go to hospital and instead attended his general practitioner (GP)
Dr Sleiman the next day.The following issues have arisen in this matter:
(a) What is the nature and extent of the claimant’s injuries?
(b) What is the claimant’s past economic loss?
(c) What is the claimant’s future economic loss?
(d) What is the claimant’s past treatment expenses?
(e) What is the claimant’s future treatment expenses?
(f) Is the claimant entitled to future care?
BACKGROUND
Mr Issa was born and educated in Australia to year 10 level when he was then apprenticed as an Electrician and attended TAFE for four years.
When he was 19 or 20 he obtained his electrical license as well as obtaining licenses as a master cabler in and around 2010 he commenced his own business trading as Platinum Electrics and Comms Pty Ltd. His work is mostly commercial buildings and involves electrical and cabling installations.
WHAT IS THE NATURE AND EXTENT OF THE CLAIMANT’S INJURIES?
The claimant was immediately aware that he had an injury to his left knee, possibly because it struck the dashboard. He said he also felt pain in his neck, lower back and both shoulders.
About a month after the accident his GP Dr Lena Sleiman in a report to the insurer diagnosed a grade tear of the femoral insertion of the medial collateral ligament with left knee infusion and mid thoracic back pain. She had recommended physiotherapy over six to eight weeks and that he was in difficulties with lifting, pushing, pulling at work and at home and was reduced to supervisory duties.
In Dr Sleiman’s Medical Certificate attached to the Claim Form and dated 8 March 2018 she again reported the knee infusion, pain and swelling but also neck pain, upper shoulder pain and right shoulder pain. She noted that he could not use ladders and was having to employ other trades.
The clinical notes of Dr Sleiman also noted tenderness in the upper trapezius region and into the right rotor cuff. She ordered ultrasounds of the shoulder and also of the knee as well as an X-ray of the knee.
In October the claimant was reporting ongoing knee pain, that he has problems with walking and because of the limping he now has pain in the back and left to supervise at work as he cannot undertake any physical work.
He recalls attending a physiotherapist and being fitted with a knee brace for some eight weeks and then being weaned off the knee brace over the following eight weeks.
He relied on his brother to provide massages to alleviate his pain. He believes he did attend the physiotherapist two or three times during this period but he states that he is a very busy man with three children, a wife, a house to run, elderly parents who are across the road and his business to operate so he didn’t have a lot of time to complain and attend doctors and seek treatment from physiotherapists.
His solicitors qualified Dr James Bodel who noted that in 2023 his complaints were of pain in the lower part of the back intermittent neck and shoulder girdle pain and anterior knee pain mostly in the left knee aggravated by attempting to knell, squat or climb.
Dr Bodel identified good range of bending and rotation in the upper thoracic spine but he does have tenderness on palpitation at the lumbosacral junction and that there was guarding in that area. He also noted painful retro patellar crepitus in the left knee and pain on resisted knee extension.
Dr Bodel’s diagnose was that of a muscular legitimus injury to the neck, probably rotator cuff pathology to the region of the right shoulder and medial ligament strain of the left knee and retro patellar crepitus in the left knee. Also, probably internal disruption of the lumbosacral junction involving the L5 S1 level caused by the motor vehicle accident.
The insurer qualified Dr Ron Muratore, sports and exercise physician.
Dr Muratore took a lengthy history noting that he required assistance from his spouse and was unable to complete domestic duties at least until early 2018. He noted that he experienced pain in his right shoulder and that he developed back pain “some time after the subject motor vehicle accident”.
He made no complaints of neck pain to Dr Muratore but did describe ongoing right shoulder pain which feels like a cramp and is aggravated by any work at or above shoulder height activity especially if that activity is prolonged.
He also described central low back pain which he localised to the area of L3 and described as “part of my life now”. The back pain is aggravated by sleeping on his abdomen and working in awkward positions.
He reported no longer having pain in his left knee.
Dr Muratore’s diagnosis and opinion was listed as:
(a) soft tissue injury of the neck – now resolved;
(b) soft tissue injury of the lower back – now resolved;
(c) soft tissue of the right shoulder – now resolved, and
(d) Grade 1 - 2 tear of the left medial collateral ligament which has healed and now has minimal laxity although may have some scarring.
In terms of impairment Dr Muratore thought that his cervical spine was best placed in DRE category 1 – 0% whole person impairment (WPI), right shoulder 1% impairment, lumbar spine again DRE category 1 – 0% WPI and the left knee 3% WPI making a total of 4% WPI.
Finally, Mr Issa was examined by Medical Assessor Alexander Woo in March 2023 who ultimately concluded that the following injuries were caused by the motor accident:
(a) cervical spine – soft tissue injury;
(b) right shoulder – soft tissue injury;
(c) left knee – medial collateral ligament strain, and
(d) lumbar spine – soft tissue injury.
He opined that Mr Issa had a left knee WPI of 3% and 0% for each of the other soft tissue spinal regions.
In my assessment Mr Issa has suffered the injuries as set out by all of the experts. I do accept that his back pain is the main area of pain presently as well as the right shoulder to a lesser extent.
All of these injuries have an impact upon his ability to work given that he quite often has to work with his arms above his head for prolonged periods of time or in cramped and awkward spaces. This is the nature of electrical and cabling work.
PAST ECONOMIC LOSS
The claimant submits that at the time of the accident he was running a growing electrical business specialising in commercial electrical works.
In the two months immediately following the accident it is estimated that he sustained a loss of approximately $400 per day as he required at least one extra sub-contractor to assist with the heavier manual labour tasks. Thereafter he also required additional sub-contractors from time to time.
The claimant’s accepts and concedes that his business has experienced growth in terms of its gross sales since the accident which has necessitated the engagement of additional labour as sub-contracting labour in general. The claim is made specifically limited to the additional labour costs, the need for which has arisen as a direct result of the consequences of the injuries and disabilities he sustained in the accident.
A claim is therefore made for eight weeks at $400 a day until 12 November 2017 and then a further period from 13 November 2017 to date also at $400 per week.
The insurer notes that the gross turnover of his company’s business Platinum has grown considerably since the time of the accident.
It was noted that he advised Dr Bodel that the work he now did was mostly supervisory and that project management took up 90 to 95% of his time. He did very little hands-on work.
The insurer submitted that this was the natural progression of the claimant’s business and his business acumen.
I would have benefitted from either party qualifying a forensic accountant to assist me with the dissection of the financial records of Platinum and the ultimate income earned by the claimant since the date of accident to date.
I tried to extract that information from the financial records that were provided such as accountant’s reports, taxation returns for Platinum and from Mr Issa, but it did become an impossible task.
I agree with the insurer that it is difficult to understand how the claimant arrives at a loss of $400 per day.
I accept that a qualified tradesman electrician would be earning at least $100,000 per annum and that equates to at least $2,000 per week or $400 per day. But that I believe is a gross figure.
The claimant’s business records were ambivalent, as was his evidence, concerning the employment of additional staff and I therefore find it impossible to make any specific calculation as the claimant has done in his submissions.
I do accept that for at least eight weeks he was almost totally incapacitated in his knee brace and partially incapacitated for the next two months, a total of 16 weeks.
During this period however he conceded that he did attend upon various job sites to ensure the jobs were proceeding and to supervise some of the issues that had arisen.
He states that he was not as creative in pursuing further work but that is impossible to measure.
As the calculation is impossible to make given the growth in the claimant’s business and his changing role to that of a project manager/supervisor, I think it is appropriate that a buffer only be allowed for past economic loss. Unusual as it seems that has to be the most appropriate approach to be fair to both parties. In my assessment the claimant has suffered a loss which I calculate to be $50,000. I make no further allowance for superannuation as it is included in that figure.
FUTURE ECONOMIC LOSS
Consistent with my findings for past economic loss I believe the claimant has suffered a loss of earning capacity.
The claimant submits that I should allow for the balance of the claimant’s working life to age 67 less vicissitudes which comes to a sum of about $363,000.
The insurer relies on the report of Dr Muratore who in 2022 stated that the claimant is not restricted in relation to his employment and has continued to work normally up to 50 hours per week.
It is inappropriate to calculate the claimant’s future economic loss on the basis of a loss per week for the balance of his life. I confirm that I believe that he has lost earning capacity and that but for the accident his business would have grown, as it has, but to a greater degree and perhaps for a longer period of time.
In my assessment the most appropriate approach is to award a buffer which again I believe is $50,000. Again, I make no allowance for vicissitudes or superannuation as those adjustments are included in the buffer figure.
PAST TREATMENT EXPENSES
The claimant seeks the following:
·chiropractor treatment expenses $302
·physiotherapy treatment $378.65
·Medicare $800.55
Subtotal $1,481.20
The insurer notes that no s 83 payments have been made.
They reject the chiropractor treatment on the basis that the treatment records indicate that the thoracic spine was treated and that there was no medical evidence to suggest the claimant sustained any injury to the thoracic spine.
In my assessment that is not correct. Dr Sleiman initially noted injury to that area and
Dr Bodel reports on tenderness in the mid-back region. I therefore believe that treatment is appropriate.The insurer accepts the physiotherapy claim and the Medicare charge. I therefore allow past treatment expenses in the sum of $1,481.20 as claimed.
FUTURE TREATMENT EXPENSES
The claimant seeks the following on the basis that his ongoing impairment is likely to require the following:
(a) ongoing consultations with a GP 4 sessions per annum at $90 for the balance of his life;
(b) physiotherapy treatment 6 sessions per year at $100 per session for the balance of the claimant’s life, and
(c) purchase of non-prescription analgesic medication such as Advil at a cost of $500 per year for the balance of his life.
The insurer submits that Dr Muratore has noted that the claimant has not undertaken further physiotherapy or medications for some time and believed that he did not require any treatment in the future. They submit no amount is appropriate.
With respect for the claim for future GP visits they note that this is a fanciful claim given that the claimant has not seen his GP with respect to injuries from the accident for many years. Further that Dr Bodel does not suggest physiotherapy and that he does not appear to take medications regularly.
In my assessment the claimant has not been a very good patient in attending to his own medical needs. I believe he would have benefitted from physiotherapy from time to time and I also believe that he is taking medications purchased over the counter but has not kept any of the receipts because that it is the nature of the claimant.
I accept that he should be provided with funds to attend six physiotherapy sessions per annum for two years which at $100 per session amounts to $1,200. I then discount that figure by 50% on the basis that the claimant will probably not attend. I also allow an amount of $500 for over-the-counter medications. I therefore allow $1,100 for future treatment.
DOMESTIC ASSISTANCE
The claimant concedes that although he has been provided with domestic assistance it falls below the threshold and no claim is made.
With regard to future domestic assistance the claimant submits that he will continue to struggle with performing his home duties requiring heavy or repetitive lifting, specifically if the lifting is above shoulder height and also pushing, pulling, twisting, and turning and sitting or standing for prolonged periods of time. He will also require assistance with lawn mowing and yard maintenance. A claim is made for 2 hours per week at a commercial rate of $45 per hour as follows:
· 2 hours per week x $45 per hour x 956.1 = $86,049.
The insurer submits that relying on Dr Muratore that the claimant does not require any assistance to his personal care or domestic chores. They therefore make no allowance.
I note that Dr Muratore recorded that the claimant did initially employ gardeners to assist with lawn mowing and gardening immediately after the accident for several months but that the claimant kept them on because he was very satisfied with their work, even though he could have returned to that work himself.
I therefore agree with the insurer and make no allowance for future care.
ASSESSMENT OF DAMAGES SUMMARY
I assess the claim as follows on the findings set out above:
Economic losses
· past loss of earnings (incl. superannuation and Fox v Wood) $50,000
· future loss of earnings (incl. superannuation) $50,000
· past treatment $1,481.20
· future treatment $1,100
· future commercial care $0
TOTAL DAMAGES ASSESSED $102,581.20
COSTS AND DISBURSEMENTS
I assess the claimant’s legal costs in accordance with the attached sheet noting that the parties agreed on the costs.
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