Kirkman v Insurance Australia Limited t/as NRMA Insurance
[2025] NSWPICMR 7
•11 March 2025
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
CITATION: | Kirkman v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMR 7 |
CLAIMANT: | Aaron Kirkman |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
MERIT REVIEWER: | David Ford |
DATE OF DECISION: | 11 March 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims assessment; claimant’s application for merit review in respect of insurer’s determination the claimant was not entitled to receive weekly statutory benefits when residing in Germany from the period 1 June 2024 to 7 January 2025; statutory benefits are payable for the purposes of section 3.21 providing the claimant satisfies section 3.21(2)(a)-(b); if so he is entitled to payment of weekly statutory benefits; claimant relied upon the decision in Bax v Insurance Australia Ltd (t/as NRMA Insurance) which stated it is necessary to determine whether the claimant has a loss of any capacity that is likely to be of a permanent nature, and a loss of earning capacity is likely to be of a permanent nature if it can be shown that the loss of any capacity is likely to continue for an indefinite period; Held – determined the claimant had a loss of earning capacity which was likely to be of a permanent nature in respect of the period he was residing in Germany from 1 June 2024 to 7 January 2025; the reviewable decision is set aside; the insurer shall pay the claimant back pay of weekly payments from 1 June 2024 to 7 January 2025 totalling $128,168. |
DETERMINATIONS MADE: | CERTIFICATE Issued under s 7.13(4) of the Motor Accident Injuries Act 2017 The findings of the assessment of this dispute are as follows: 1. The reviewable decision concerns the amount of statutory benefits that are payable for the purposes of s 3.21 of the Motor Accident Injuries Act 2017 (MAI Act) (weekly statutory benefits to persons residing outside Australia) the claimant is or has been residing outside of Australia and is therefore a merit review matter under Schedule 2 (1)(g) of the MAI Act. 2. The reviewable decision is set aside. 3. The insurer from the period 1 June 2024 to 7 January 2025 shall pay to the claimant back pay of weekly payments totalling $128,168. |
STATEMENT OF REASONS
INTRODUCTION
Aaron Kirkman (the claimant) was injured in a motor vehicle accident on 23 March 2024. He was stationary at a set of traffic lights at the intersection of Anzac Parade and Rainbow Street Kingsford, when the motor vehicle being driven by the insured driver collided with the front end of the claimant’s motor scooter.
He sustained a dislocation of the right AC joint of his right shoulder, together with torn ligaments, bruising to his right hip and lacerations to his right arm. His injuries were determined to be non-threshold. He is employed as a mechanical rigger/crane attendant. His work requires him to work in a harness, working at heights and a requirement to reach above his head and be physically fit.
He lodged an Application for personal injury benefits on 10 April 2024. The insurer admitted liability for the payment of statutory benefits and his pre-accident weekly earnings (PAWE) was assessed at $5,267.53. He was paid from the date of the accident up until 29 May 2024, being a period of 10 weeks.
On 22 April 2024, he left Australia with his wife and went to Germany. It is submitted on behalf of the claimant he went to Germany, as his wife was giving birth to their child, and he stayed with her family. His wife is a German citizen but has permanent resident status in Australia.
During his time in Germany, he sought treatment from various specialists and reports in relation to such treatment had been served by the solicitor for the claimant.
On 17 September 2024 the insurer issued a Discontinuation of statutory benefits notice advising the statutory payments would be ceased whilst he was residing outside Australia. An internal review of this decision was requested on 25 September 2024. Subsequently the insurer confirmed its decision on 8 October 2024. However, in its decision the insurer, conceded the claimant was entitled to treatment outside of Australia pursuant to s 3.21 and s 3.33 of the Act.
In essence, the insurer disputes the claimant is entitled to statutory benefits on the basis his loss of earnings is likely to be of a permanent nature in accordance with the requirements of s 3.21 of the Act.
I held several preliminary conferences with the parties, and I made directions for the lodgement of further submissions to clarify the issues which were in dispute. The solicitors for the claimant clarified the dispute and submitted it is in relation to back pay for a period of 31 weeks from 1 June 2024 until 7 January 2025. The claimant returned to Australia on
7 January 2025 to seek further medical treatment here in Australia. Upon his return to Australia, the insurer renewed the payment of statutory benefits.
The parties agreed at the preliminary conference on 7 March 2025, it was appropriate I determined the matter on the papers.
LEGISLATIVE FRAMEWORK
Section 3.21 of the Act provides as follows:
“(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.”
INSURER’S SUBMISSIONS
I refer to the original submissions lodged by the insurer dated 18 November 2024. I note the following paragraphs:
“11. The insurer submits that the claimant is currently living in Germany and has not returned to Australia since 22 April 2024.
12. The insurer submits admits that to date, the claimant has not indicated when he will be returning to Australia
13. The insurer notes that the claimant has advised that he will return to Australia after the birth of his child. However, the claimant has not provided any dates of his return.
14. The insurer submits that the claimant has provided Certificates of Capacity from a treating general practitioner in Germany. The claimant was reviewed by an orthopaedic surgeon in Germany on 16 August 2024
15. The insurer submits that in line with Gahar v Insurance Australia ( t/as NRMA Insurance ) [2024] NSWPICMR 64 (‘Garha’). The claimant’s current residence is Germany and has dwelled there for a considerable time.
16. The insurer further submits that there is no evidence that the loss of any capacity is likely to be of a permanent nature.
17. The insurer submits that should the claimant return to Australia, he would be entitled to statutory benefits.”
The fact the claimant resided in Germany from 22 April 2024 to 7 January 2025 alone, does not disentitle him to the payment of weekly statutory benefits, whilst he resided outside Australia. The insurer refers to a decision of Gahar v Insurance Australia Ltd, as cited above, however this matter involves an entirely different factual situation and is of no relevance this dispute. It is clear from the provisions of s 3.21 that providing the claimant satisfies s 3.21(2) (a) and (b) then he is entitled to the payment weekly statutory benefits. The fact he has gone to Germany with his wife for the birth of their child alone does not disentitle him to the payment of statutory benefits during the period he was absent from Australia.
The issue I need to determine is whether the claimant has satisfied the provisions of s 3.21(a) (b) of the Act.
I refer to the insurer’s further submissions dated 3 March 2025. The insurer submits the claimant is not entitled to back pay, as there is no medical evidence the claimant's medical condition is “permanent” pursuant to s 3.21 of the Act. The insurer in their submissions refers to several medical reports from treatment providers and I note the following paragraphs:
“4.4 On 5 April 2024 an X ray of the right elbow and right shoulder did not identify any fracture or dislocation but showed mild degenerative changes at both AC joints,
4.5 On 12 April 2024 IHR physiotherapy diagnosed the claimant with grade 2-3 AC joint injury, CA ligament tear and superior displacement of the AC joint with no cuff pathology. NRMA also approved some psychiatric sessions
4.6 On 28 May 2024 an X ray of the shoulder showed a rupture of the right AC joint with subluxation of approximately 10mm.
4.7 On 13 August 2024 Dr Zellner, orthopaedic surgeon, saw the claimant in Germany and noted the claimant presented with right shoulder pain from a recent accident when he was on a motorcycle. The claimant was diagnosed with the rupture of the right AC joint at the time. It was treated conservatively initially. A follow up assessment 3 weeks later showed a subluxation with proximately 1cm. He continued to recommend conservative treatment and follow up in 10 weeks
4.8 On 16 August 2024 Dr Fuchtmeier, orthopaedic surgeon, treated the claimant in Germany and diagnosed the claimant with a right AC dislocation. The claimant reported that the pain had already improved significantly and that he was feeling an improvement in his strength., However, he still felt severe pain in the right of the shoulder joint when performing forceful movements and had to discontinue work. Radiography showed no significant change in findings, clinical examination also indicated good movement of the shoulder with mild movement restrictions still present. He recommended continuing the regular physiotherapy sessions and performing the home exercises to achieve a better mobility and to build up the muscles. The work involving lifting heavy items should not be performed at the present time.
4.9 On 20 September 2024 Dr Cronin GP (in QLD with the Australian Veteran Health Services) completed a certificate of capacity and noted that the claimant’s specialist in Germany recommended ongoing conservative treatment for another 10 weeks and then imaging and clinical review the claimant was certified with no work capacity until 20 October 2024.”
The insurer further submits that since the claimant underwent surgery performed by
Dr Moopanar, orthopaedic surgeon (in Australia) on 17 February 2025 at the North Shore Private Hospital, the claimant’s condition was showing signs of improvement and in this regard, they refer to the report of Dr Moopanar dated 29 January 2025 which states the following:
“The plan included performing an arthroscopic examination and debridement of the superior labrum to alleviate pain synovectomy with manipulation to improve range of motion, resection of the distal clavicle to address the arthritis and bone oedema and reconstruction of the coracoclaviular ligaments using an allograft and a figure of eight technique to stabilise the acromioclavicular joint. A hook plate would be placed to maintain stability during the healing process to be removed after three months.”
It is submitted Dr Moopanar’s own opinion alludes to the scope for improvement after surgery.
As I advised the parties at the preliminary conference on 7 March 2025, the issue I have to determine is whether or not the claimant is entitled to the back pay from the period
1 June 2024 to 7 January 2025. Medical evidence after 7 January 2025 is not of relevance regarding my decision as to whether the claimant is entitled the back pay of statutory payments as claimed by him. The only medical evidence I must consider as relevant, is the medical evidence available for the said back pay period.
The insurer also refers to Bax v Insurance Australia Ltd (t/as NRMA Insurance) [2022] NSWPIC 538 (Bax). I will discuss this decision when considering the submissions by the claimant.
SUBMISSIONS BY THE CLAIMANT
The solicitor for the claimant initially lodged submissions on the portal on 7 November 2024 and referred to a letter to the insurer dated 25 September 2024. I have already determined in this decision the claimant is entitled to receive statutory benefits if he resides outside Australia, providing he complies with the provisions of s 3.21 (1) and (2) (a) (b). The issue which has arisen in this matter is whether the claimant’s loss of earning capacity is likely to be of a permanent nature. In this regard, the solicitor for the claimant relies upon the case of Bax, a decision of Member Williams. I note the following paragraphs in the letter
25 September 2024 as follows,
“18. Member Williams determined that there are two questions of fact which must be answered,
(a)First, that there has been a loss of earning capacity
(b)Second, that any loss of earning capacity is of a permanent nature
19. Member Williams determined the following about the meaning of ‘permanent nature’
‘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 any capacity will, as a matter of certainty, be of a permanent nature. I am required to determine whether he has a loss of any capacity that is likely to be of a permanent nature [37]
20. Member Williams went on to find that a loss of earning capacity is likely to be of a permanent nature if it can be shown that the loss of any capacity is likely, on the balance of probabilities, to continue for an indefinite period.[37]
21. So, Mr Kirkland does not need to show that his injuries are certain to persist and not improve. Rather Mr Kirkland only needs to show that, on balance, any loss of earning capacity is likely to continue for an indefinite period.
22. We submit that Mister Kirkland presently has a loss of earning capacity
(a)In the Certificate of Capacity dated 20 September 2024 Dr Andrew Cronin notes, among other things
(i)That Mr Kirkland is unfit to work between 20 September 2024 and 20 October 2024
(ii) That Mr Kirkland requires at least another 6 weeks of conservative treatment. This is in the form of weekly physiotherapy, orthopaedic review and further medical imaging.
(b)In the Certificate of Capacity dated 23 July 2024 Dr Cronin writes that Mr Kirkland requires a review by an orthopaedic surgeon to determine an estimated time to return to work. Mr Kirkland is yet to receive an opinion from an orthopaedic surgeon regarding a timeline for his return to work.
(c)In his report dated 13 August 2024 Dr Bramhervige Brueer, an orthopaedic surgeon based in Germany, notes that Mr Kirkland is experiencing functional limitations. For instance, Dr Brueer writes, amongst among other things, that Mr Kirkland has ongoing pain in the right shoulder which is aggravated when Mr Kirkland sleeps.
23. Further we submit that Mr Kirkland's loss of earning capacity is on balance likely to continue for an indefinite period. This makes Mr Kirkland's loss of earning capacity likely to be of a permanent nature.
(a) The Certificate of Capacity dated 20 September 2024 provides Mr Kirkland is unfit to work and requires at least another 6 weeks of conservative treatment. Mr Kirkland will be required to undergo physiotherapy on a weekly basis, ongoing orthopaedic review and further medical imaging. Dr Cronin does not note when, if at all, Mr Kirkland will be able to return to his exact pre- injury employment duties and hours.
(b) Recall that, in the subject Certificate of Capacity dated 23 July 2024 Dr Cronin notes that Mr Kirkland will require review from the orthopaedic surgeon to determine an estimated time to return to work. This further reinforces that it is unclear when, if at all, Mr Kirkland will return to work.
(c) Mr Kirkland’s incapacity has not improved in the recent passage of time. This indicates that Mir Kirkland is not progressing towards a state of health which will allow him to resume his exact preinjury employment duties and hours.
(i) Mr Kirkland was deemed unfit to work by Dr Cronin in the Certificate Capacity dated 23rd of July 2024 Dr Cronin deemed that Mr Kirkland was unfit to work between 18 June 2024 and 16 August 2024
(ii) In the Certificate of Capacity dated 20 September 2024, Dr Cronin notes that there has been no change in Mr Kirkland's condition since this time.
24. In the report of Dr Zellner dated 13 August 2024, he states the following, inter alia, on page 1 of his report,
‘On presentation today the patient reports, in particular, pain in the region of the right shoulder under higher physical strain and while sleeping’
25. I refer to the report of Dr Fuchtmeier dated 16 August 2024, where he states under the heading ‘Case History’, on page 1 the following
‘The patient presented in our consulting suite as scheduled following a traumatic rupture of the right AC joint, a conservative treatment course of action was tried. The patient reports that the pain has already significantly improved, and he can already feel an improvement in strength. With forced movements requiring strength, e.g. lifting heavy loads, he still feels strong pain in the region of the right shoulder joint, so he has to discontinue this work’
He also states the following under the heading “Recommended Treatment” on page 2 of his report.
‘Radiography showed no significant change in findings, clinical examination also indicated good movement of the shoulder with mild movement restrictions still present. We recommend continuing the regular physiotherapy sessions and performing the home exercises to achieve a better mobility and to build up the muscles. In our view, the work involving lifting heavy items should not be performed at the present time. We request waiting for further healing to take place. Should you have any further questions please don't hesitate to call us’.”
REASONS
Firstly, I accept the reference to Mr Kirkland in the claimant’s submissions is a typographical error.
As stated above, the issue I must determine is whether the claimant is entitled to the back pay from the period 1 June 2024 to 7 January 2025. Medical evidence after 7 January 2025 is not of relevance regarding my decision and the only evidence, I must consider is relevant, is the medical evidence available for the said back period.
I determine the various Certificates of Capacity issued by Dr Cronin clearly state the claimant is unfit for work for various periods of time, requires ongoing medical treatment, by way of physiotherapy, orthopaedic review and further medical imaging. Furthermore, Dr Cronin is not able to determine when the claimant will be able to return his pre-injury employment duties and hours.
The report of Dr Fuchtmeier dated 16 August 2024 states the claimant is limited with forced movements requiring strength, such as lifting heavy loads and accepts the claimant has had to discontinue his work. Furthermore, the doctor opines the claimant requires regular physiotherapy sessions and home exercises to achieve a better mobility and build up the muscles, and in his view, the work involving lifting heavy items should not be performed at that time and the claimant requires further healing to take place.
The earlier reports referred to in the submissions by the insurer, confirm the nature and extent of the claimant’s injuries and the need for ongoing medical treatment.
I concur with the reasons of Member Williams in the matter of Bax, and I determine the claimant had a loss of earning capacity which was likely to be of a permanent nature in respect of the period he was residing in Germany from 1 June 2024 to 7 January 2025.
I therefore determine the reviewable decision is set aside.
The insurer, for the period 1 June 2024 to 7 January 2025, shall pay to the claimant back pay of weekly payments totalling $128,168.
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