Janjua v Insurance Australia Limited t/as NRMA Insurance
[2022] NSWPIC 435
•5 August 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Janjua v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIC 435 |
| CLAIMANT: | Imron Janjua |
| INSURER: | Insurance Australia Limited t/as NRMA |
| MEMBER: | Brett Williams |
| DATE OF DECISION: | 5 August 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Claimant injured in motor accident at 3 April 2021; claimant suffered a right femoral comminuted fracture, left 4-7and right 6-8 rib fractures, right knee injury and a left shoulder injury; claim for statutory benefits made; insurer accepted liability for claim; claimant moved to The Netherlands; insurer ceased making weekly payments on the basis that he resided outside Australia; application of section 3.21 of the Motor Accident Injuries Act 2017 (the 2017 Act); where provision amended while the proceedings were on foot by the Motor Accidents and Workers Compensation Legislation Amendment Act 2022; consideration of transitional provisions; whether the claimant has a loss of earning capacity that is likely to be of a permanent nature Held – the amendments to section 3.21 of the 2017 Act apply to these proceedings; the claimant’s loss of capacity as a result of injuries he sustained in the accident is likely to be of a permanent nature. |
| DETERMINATIONS MADE: | 1. For the purposes of s 3.21 of the Motor Accident Injuries Act 2017 the claimant’s loss of earning capacity as a result of injuries he sustained in the accident is likely to be of a permanent nature. |
STATEMENT OF REASONS
BACKGROUND
Imron Janjua (the claimant) was injured in a motor accident at Blackheath, NSW, on 3 April 2021. He subsequently made a claim for statutory benefits on Insurance Australia Limited t/as NRMA Insurance (the insurer). The insurer accepted liability for the claim for the first 26 weeks after the accident. On 9 July 2021, the insurer accepted liability for the payment of statutory benefits after the first 26 weeks.
On 8 September 2021[1] the claimant moved with his wife to The Netherlands. The insurer was advised of the move on 1 October 2021. As a result of his move to The Netherlands, s 3.21 of the Motor Accident Injuries Act 2017 (MAI Act) has come into play. The insurer stopped making payments of weekly benefits to the claimant. On 15 October 2021 the insurer invited the claimant to make an application to the Commission for a determination under s 3.21. These proceedings were subsequently commenced.
[1] The claimant’s submissions dated 1 March 2022 at [3] say the move occurred on 7 September 2021, however his statement dated 28 February 2022 at [23] says the move occurred on 8 September 2022.
At the teleconference held on 14 June 2022 the parties confirmed that whether the claimant is residing outside Australia is not in issue. It was also confirmed that the insurer did not dispute that the claimant had a loss of earnings as a result of injuries sustained in the accident. I was told that, from the insurer’s perspective, the dispute was about whether the loss of earnings is of a permanent nature. Given the amendments to s 3.21, which are discussed below, the nature of the dispute has evolved into one about whether the claimant’s loss of earning capacity is likely to be of a permanent nature.
ON THE PAPERS
The claimant consents to the proceedings being determined on the papers.[2] The insurer has not objected to this course. Having considered both s 52 of the Personal Injury Commission Act2020 (PIC Act) and Procedural Direction PIC2 I have concluded that the matter can be determined on the papers. I am satisfied that sufficient information is available to allow me to determine the issues that arise without holding a formal hearing.
[2] Claimant’s further submissions dated 10 July 2022.
NATURE OF THE DISPUTE
The dispute in these proceedings centres on s 3.21(2)(a) of the MAI Act. The dispute is not a merit review matter. It does not fall within the terms of Sch 2 cl1(g)[3] of the MAI Act, or any other dispute type referred to in Sch 2 cl. Nor is it a miscellaneous assessment matter within the terms of Sch 2 cl3 of the MAI Act. The proceedings arise in the context of s 3.21(2)(a), which requires a determination by the Commission that the claimant’s loss of earning capacity is likely to be of a permanent nature. I am exercising the Commission’s powers under that provision in my capacity as a Member of the Commission. In these circumstances, I am satisfied that an internal review by the insurer is not required.
[3] Whether for the purposes of s 3.21 (Weekly statutory benefits to persons residing outside Australia) an injured person is or has been residing outside Australia.
THE AMENDMENTS TO S 3.21
Since these proceedings were commenced s 3.21 has been the subject of amendment by the Motor Accidents and Workers Compensation Legislation Amendment Act 2022 (the Amendment Act). The amendments to s 3.21 commenced on 16 June 2022, two days after the teleconference took place. Relevantly, the Amendment Act made the following amendments to s 3.21:
“[13] Section 3.21 Weekly statutory benefits to persons residing outside Australia
Omit ‘earnings in respect of which statutory benefits are payable’ and ‘earnings in respect of which the weekly payment is payable’ from section 3.21(1) and (2)(b), respectively.
Insert instead ‘earning capacity’.
[14] Section 3.21(2)
Insert ‘, or at shorter intervals agreed by the insurer and injured person,’ after ‘quarterly basis’.
[15] Section 3.21(2)(a)
Insert ‘or insurer’ before ‘has determined’.
[16] Section 3.21(2)(a)
Omit ‘earnings’. Insert instead ‘earning capacity’.”
Section 3.21 is now in the following terms:
“3.21 Weekly statutory benefits to persons residing outside Australia
(1) An injured person who resides outside Australia is not entitled to receive any weekly payment of statutory benefits in respect of any period during which the person resides outside Australia, except as provided by this section when the loss of earning capacity is likely to be of a permanent nature.
(2) An injured person residing outside Australia is entitled to receive on a quarterly basis, or at shorter intervals agreed by the insurer and injured person, the amount of the weekly payments accruing due during the preceding quarter if—
(a) the Commission or insurer has determined that the injured person’s loss of earning capacity is likely to be of a permanent nature, and
(b) the person establishes, in such manner and at such intervals as may be required by the Motor Accident Guidelines, the person’s identity and the continuance of the loss of earning capacity.”
The amendments to s 3.21, if they apply to these proceedings, are material to the issues that arise for determination. On 18 July 2022 the parties were informed by the Commission that their submissions should address whether s 3.21 of the MAI Act, as amended by the Amendment Act, applies to these proceedings. In this regard, the parties were asked to consider, among other matters, the transitional provisions in the Amendment Act.
Clause 28 of the Amendment Act makes amendments to Sch 4 of the MAI Act, and is in the following terms:
“[28] Schedule 4 Savings, transitional and other provisions
Insert at the end of the Schedule, with appropriate Part and clause numbering—
Part Provisions consequent on enactment of Motor Accidents and Workers Compensation Legislation Amendment Act 2022
Application of amendments
(1) Except as provided by subclauses (2)–(4) or the regulations, an amendment made to relevant legislation by the amending Act extends to—
(a) a motor accident occurring before the commencement of the amendment, but not before 1 December 2017, and
(b) a claim for statutory benefits or damages made before the commencement of the amendment, but not before 1 December 2017, and
(c) proceedings pending before a merit reviewer, a medical assessor, a claims assessor or a court immediately before the commencement of the amendment.
(2) An amendment made to relevant legislation by the amending Act does not apply to statutory benefits or damages paid or payable for a period before the commencement of the amendment.
(3) …
(4) …
(5) In this clause—
amending Act means the Motor Accidents and Workers Compensation Legislation Amendment Act 2022.
relevant legislation means each of the following—
(a) this Act and the regulations under this Act,
(b) the Motor Accidents Compensation Act 1999 and the regulations under that Act.”
In additional submissions dated 21 July 2022 the claimant submitted that the amendments made to s 3.21 by the Amendment Act apply to these proceedings as a consequence of the amendment to the transitional provisions in Sch 4 of the MAI Act made by the Amendment Act. In submissions dated 20 July 2022 the insurer agreed that s 3.21, as amended, apply to these proceedings.
I agree that the amendments to s 3.21 apply to these proceedings. The amendments to the transitional provisions in Sch 4 of the MAI Act make it clear that an amendment made to the MAI Act by the Amendment Act extends to a motor accident occurring before the commencement of the amendment, and a claim for statutory benefits or damages made before the commencement of the amendment, and proceedings pending before a claims assessor immediately before the commencement of the amendment. I find that the reference to a “claims assessor” is intended to be, or include, a reference to a Member of the Commission.
EVIDENCE
A joint bundle of documents relied on in the proceedings has been provided by the parties. I have read and considered all the material in the joint bundle. I do not propose to summarise or address all the material in the bundle, but will address aspects of the evidence necessary to provide context for my decision.
The claimant’s statements
The claimant has provided a statement dated 28 February 2022. The statement records the circumstances of the accident, his injuries and treatment. He was airlifted from Blackheath to Westmead Hospital and admitted to the Trauma Ward. He was diagnosed with multiple fractures to his ribs, a right proximal femoral spiral fracture just below the hip; injury to the ligaments and cartilage in his right knee, as well as damage to his left shoulder and neck. On 4 April 2021 he underwent a right femur intramedullary nail procedure, which installed titanium into his leg, and arthroscopic irrigation. A further arthroscopic right knee washout and debridement was performed on 7 April 2021. Following the surgery, the claimant states that he became anaemic and required a blood transfusion. He also developed several pulmonary embolisms and was required to take blood thinner medication. He was discharged from Westmead Hospital to Westmead Rehabilitation Hospital on 22 April 2021. He has undergone physiotherapy and hydrotherapy treatment and was referred to a psychologist.
The claimant states that he moved to The Netherlands with his wife on 8 September 2021. She has an 18 month contract. They intend to return to Australia following the completion of her contract. Since arriving in The Netherlands he has found a new doctor and physiotherapy treatment has been arranged. He was referred to an orthopaedic specialist for review as the titanium hardware in his leg is causing him discomfort. Surgery was to take place in April 2022 and again six months later to remove the remainder of the hardware.
The claimant states that he continues to have loss of muscle strength and mass in his right leg, which he states is much weaker than the left. He experiences ongoing pain in his right knee, hip and left shoulder and intermittent swelling in the right knee and hip where the surgery was performed and where the hardware is installed. He states that his general endurance for daily standing and walking is limited, and he needs to walk with a cane most of the time. He suffers pain with prolonged sitting and experiences anxiety and depression. The claimant states that he finds that his energy levels are quite low compared to prior to the accident and that he often feels lethargic. The accident has had a major impact on many facets of his life. The claimant states that his doctors in Australia and The Netherlands agree that he has no capacity to work and was not likely to work in the foreseeable future.
In a statement dated 7 July 2022, the claimant states that he plans to return to Australia in October 2022 for 60-90 days but may return to The Netherlands. He requires further surgery in October 2022 to remove the titanium hardware in his leg as it is causing pain and complications for his recovery. He continues to attend his local general practitioner once every 60 days and physiotherapy treatment twice a week on average. He also has remedial massage and chiropractic treatment once or twice a week.
The claimant confirms that at the time of the accident he was employed as a law lecturer and policy advisor. He has not worked since the accident and continues to be certified unfit to work.
Medical evidence
A report from Dr Aggarwal at Westmead Hospital to the insurer dated 15 April 2021 records that the claimant suffered a right femoral comminuted fracture, left 4-7and right 6-8 rib fractures, right knee pain and swelling, and midline cervical spine tenderness as a result of the accident. He subsequently developed a pulmonary embolism and anaemia. The right femoral fracture was managed operatively with a right femur open reduction and internal fixation with nail. A right knee arthroscopy was performed. Radiological investigations were undertaken. The report records that the claimant is a candidate for rehabilitation.
In a report dated 6 May 2021, Dr Suthersan, orthopaedic surgeon, recorded that the claimant had sustained a “highly comminuted fracture” of his proximal femur as a result of the accident. There were several fragments. There was also a large knee effusion, which was the main source of his pain. The fracture would take several months to heal.
In a report dated 1 November 2021, the claimant’s physiotherapist in The Netherlands, Ms Zwart, stated that, due to pain and significant muscle weakness, the claimant’s gait pattern is altered. He is unable to fully weight bear onto his right leg. One crutch is needed to fully support his right knee. In addition, the right hip and knee stability need to be improved as he is not able to stand for more than 20 minutes without support of a knee brace and a crutch. Further, poor endurance and disuse atrophy of the right hip and upper leg muscles limit him in performing his daily activities.
There are a series of reports prepared by Ms Whiley, an occupational therapist at ipar, addressed to the insurer. A report dated 20 August 2021 confirms that the claimant has been certified as having no capacity for work by his treating doctors. An activity of daily living assessment report dated 19 January 2022 records that an assessment of the claimant was conducted by AVL on 17 January 2022. The report records that the claimant experienced fatigue, that the titanium pins in his right leg were causing irritation, that he experienced constant aching right hip pain, constant dull aching right knee pain with swelling and reduced range of movement, and sporadic sharp sciatic pain down his right leg, which was aggravated by increased activity and weightbearing on his right leg. Sitting, standing and walking tolerances of 20 minutes were reported. Squatting and kneeling sometimes exacerbated his right leg pain. The severity of his right leg injury was noted. It was also recorded that the claimant’s injuries had a long rehabilitation period, which impacted his return to work capacity.
A return to work plan dated 3 December 2021 records that the claimant continued to be certified unfit for work, and that he has been advised to focus on his rehabilitation to progress his functional capacity. A return to work plan dated 5 April 2022 records that the claimant is not certified fit to engage in light duties. The report records that the claimant is experiencing physical symptoms impacting his functional capacity.
A certificate of capacity dated 24 February 2022 records that the claimant has no capacity for any work from 24 February 2022 to 24 June 2022. The certificate records that he is slowly improving. A certificate of capacity dated 18 July 2022 states that the claimant has no capacity for any work from 18 July 2022 to 24 October 2022. The certificate records that proposed surgery had been postponed due to Covid-19 capacity problems.
CLAIMANT’S SUBMISSIONS
The claimant’s submissions dated 1 March 2022 address s 3.21 in its pre-amendment form. Those submissions also address the nature of the claimant’s injuries resulting from the accident, his treatment, and the medical evidence. Relevantly, the claimant submits that his ongoing restrictions and disabilities as a result of the accident render him currently incapable of returning to work and that his incapacity is likely to remain indefinitely.
In further submissions dated 10 July 2022, the claimant argues that the sole criteria that he suffers ‘a loss of earning capacity likely to be of a permanent nature’ involves two subsidiary questions of fact, namely:
(a) the existence of a loss of earning capacity (“the impaired earning capacity question”), and
(b) whether the loss of capacity is likely to be of a permanent nature (“the permanency question”).
As to the impaired earning capacity question, it is submitted that the Commission ought be satisfied, on the balance of probabilities, as to that fact having regard to the nature and extent of the claimant’s injuries disclosed in the evidence. It is submitted that the nature and extent of the injuries and attendant symptoms plainly render the claimant less capable of earning income. Reliance is placed on the claimant’s statement, reports from treatment providers, clinical notes, and work capacity assessments.
As to the permanency question, the claimant submits that the Commission ought be satisfied, on the balance of probabilities, that his impaired earning capacity is ‘likely to be of a permanent nature’. It is argued that the element of permanency is answered in favour of the claimant having regard to the evidence concerning the nature and extent of his injuries and symptoms and his ongoing medical certification of incapacity for work. It is submitted that, on balance, it is likely that this state of affairs will continue for an indefinite period of time.
The claimant’s additional submissions dated 21 July 2022 address the Amendment Act. I have already dealt with the issues that arise in relation to the amendments to s 3.21.
INSURER’S SUBMISSIONS
The insurer’s submissions dated 27 April 2022 also address the pre-amendment version of s 3.21. The insurer notes that: it has been 12 months since the date of accident and the claimant is still undergoing treatment; in June 2021 the claimant’s orthopaedic surgeon reported that he was progressing well with his recovery; he has been certified unfit for work up until June 2022; and the medical evidence is unclear as to what the prognosis will be after this point. The insurer also argues that the claimant’s injuries are not comparable to those suffered by the claimant in AAA v AAMI Insurance [2021] NSWPICMR1.
In further submissions dated to 20 July 2022, the insurer notes that the claimant will be returning to Australia in October for a minimum period of two to three months. There is no certainty as to whether or not he will be returning to the Netherlands. The insurer states that when the claimant returns to Australia his statutory benefits will likely recommence.
The insurer says that the most recent certificate of capacity has certified the claimant unfit for work for a closed period of time. The insurer’s position is that permanency of earning incapacity cannot be determined, particularly when the claimant is due to have further surgery in October 2022. The insurer submits that the prognosis is still unclear.
DETERMINATION
The critical issue for determination is whether the claimant has a loss of earning capacity that is likely to be of a permanent nature. This issue involves two subsidiary questions of fact, namely:
(a) the existence of a loss of earning capacity (“the impaired earning capacity question”), and
(b) if there is a loss of earning capacity, whether the loss of earning capacity is likely to be of a permanent nature (“the permanency question”).
The evidence satisfies me that, as a result of the accident, the claimant suffered a right femoral comminuted fracture, left 4-7and right 6-8 rib fractures, right knee injury and a left shoulder injury. I note that an ultrasound of the claimant’s left shoulder identified a partial tear of the articular surface of the subscapularis and recorded findings suggestive of subdeltoid bursitis.[4] It is also likely that the claimant suffered a neck injury.
[4] Left shoulder ultrasound report dated 29 June 2021.
While I accept, as observed by the insurer, that the claimant’s injuries are not the same as those suffered by the claimant in AAA v AAMI Insurance [2021] NSWPICMR1, that matter does not establish a threshold test, to be applied to other matters, in terms of the type or severity of injury required for an injured person to satisfy s 3.21. That matter turned on its own facts, as must this.
The claimant states that he continues to have loss of muscle strength and mass in the right leg, which he says is much weaker than the left. He experiences ongoing pain in his right knee, hip and left shoulder and intermittent swelling in the right knee and hip where the surgery was performed and where the hardware is installed. He states that his general endurance for daily standing and walking is limited. He suffers pain with prolonged sitting and experiences anxiety and depression. The claimant states that he finds that his energy levels are quite low compared to the pre-accident position and that he often feels lethargic. I accept the claimant’s evidence in this regard.
Given the nature of the injuries I have found the claimant suffered as a result of the accident, his ongoing need for rehabilitation, the requirement for additional surgery to remove the hardware in his right leg, his current certification in terms of work capacity, his reported functional limitations, and the nature of his pre-accident work, I find that the claimant has a loss of earning capacity.
I am not required to find that the claimant’s loss of earning capacity will not improve. Nor am I required to determine whether his loss of earning capacity will, as a matter of certainty, be of a permanent nature. I am required to determine whether he has a loss of earning capacity that is likely to be of a permanent nature. Given my findings as to the injuries the claimant suffered as a result of the accident, and the other matters referred to at [36] above, I am satisfied that the claimant’s loss of earning capacity is likely to continue for an indefinite period. I am satisfied that his loss of earning capacity is likely to be of a permanent nature.
For the purposes of s 3.21 I find that the claimant’s loss of earning capacity as a result of injuries he sustained in the accident is likely to be of a permanent nature.
COSTS
The claimant submits that, pursuant to s 8.10(4) of the MAI Act, he is entitled to recover reasonable and necessary legal costs incurred in relation to the dispute, which are permitted to be ordered if the Commission is satisfied there are exceptional circumstances to justify payment of legal costs he has incurred. The claimant submits the circumstances of this case were such that it may be considered an ‘exceptional’ case. It is argued that this case is unusual and out of the ordinary for the following reasons:-
(a) he insurer elected not to exercise its ability to consider and determine the matter;
(b) The dispute is a novel one which has only come before the Commission on a small number of occasions;
(c) The matter required a lengthy telephone conference to discuss the various issues required to be addressed, and
(d) Submissions were required in relation to statutory interpretation and the evidence in the case.
The insurer does not consider that exceptional costs are appropriate in these proceedings. It submits that there was one teleconference, and the matter was assessed on the papers. It is argued that the claimant should be awarded regulated costs.
Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional: Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [26], and San v Rumble (No 2) [2007] NSWCA 259 at [67].
Given the issues that arose in these proceedings, including the amendments to s 3.21 after the proceedings were commenced, the work undertaken by the parties, including the provision of detailed submissions, and the fact that the claimant resides in The Netherlands, I consider that s 8.10(4)(b) of the MAI Act is satisfied, and that the Commission ought permit the payment of the claimant’s reasonable and necessary costs in connection with the proceedings in accordance with that provision.
I have considered the material provided by the claimant in relation to his legal costs and disbursements. I assess the claimants reasonable and necessary legal costs (including counsel’s fees) in connection with these proceedings in the amount of $3,500 plus GST. I allow disbursements of $168 for translators fees. I make no determination in relation to the other disbursements claimed, as itemised in the schedule, on the basis that it is not clear to me how these disbursements relate to these proceedings. This does not prevent the parties from reaching agreement in relation to these disbursements, or, if not agreed, a dispute about the disbursements being referred to the Commission at a later date.
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