Parany v Insurance Australia Limited t/as NRMA Insurance

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Parany v Insurance Australia Limited t/as NRMA Insurance [2021] NSWPIC 540
Claimant:	Nicholas Parany
insurer:	Insurance Australia Limited t/as NRMA Insurance
Member:	Belinda Cassidy
DATE OF DECISION:	26 October 2021
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accidents Compensation Act 1999; damages claim; accident occurred 30 September 2011, liability wholly admitted; claims made for past and future loss of earnings, past and future treatment and care in sum of approximately $2 million; issue of reliability of claimant’s evidence in light of length of time since accident, undisclosed previous physical conditions and significant intervening psychological condition; *Held-* claimant’s evidence unreliable; claimant’s physical injuries soft tissue in nature and no longer causing losses after December 2011; no psychological injury caused by accident; damages assessed in sum of $12,000 and costs assessed in accordance with the Motor Accidents Compensation Regulation 2020.
determinations made:	1. The amount of damages assessed in respect of this claim is $12,000. 2. The amount of the claimant’s costs in the matter is $13,168.30 inclusive of GST

INTRODUCTION

On 30 September 2011, Nicolas Parany (the claimant) was involved in a motor accident near his home in Lake Heights, south of Wollongong. The claimant was turning right when he was struck from behind by another vehicle.
On or about 14 December 2011, the claimant completed a claim for damages under the Motor Accident Compensation Act 1999 (the MAC Act) and served it upon NRMA, the insurer of the vehicle that collided with him1. NRMA (the insurer) admitted liability for the claim on 23 April 20122.
The claimant and the insurer have been unable to resolve the claim and on 24 May 2021 the insurer referred the claim to the Personal Injury Commission (the Commission) for assessment. The claim was allocated to me, and I have conducted two teleconferences and an assessment conference in the matter.
The claimant was assessed in 20133 as having a whole person impairment of not greater than 10% and therefore he is not entitled to damages for non-economic loss.
The insurer does not concede entitlement to any of the heads of damage claimed by Mr Parany, other than past treatment expenses and the quantum of that head is not agreed. The schedule of damages submitted by each party is summarised below:

Head of damage claimed Claimant’s submissions Insurer’s submissions

Past loss of earnings Superannuation
$512,562.29

$48,693.42
Nil

Future loss of earning capacity Superannuation
$638,081.66

$70,188.98
Nil

Past treatment expenses $19,009.20 $11,572.96

Future treatment expenses Occupational therapy Future equipment

Future podiatry

$61,774.67

$1,020.00

$16,913.70

$7,452.47
Nil

Travel to access treatment $10,651.07 Nil

Past care (gratuitous) $97,498.87 Nil

Future care (commercial) Car cleaning and polishing

Handyman

$181,854.51

$45,316.86

$189,388.80
Nil

Future travel assistance $21,947.40 Nil

Past s 15B Civil Liability Act $7,800.88 Nil

The difference between Mr Parany’s claim of almost $2 million and the insurer’s figure

lies in two primary issues:
(a)the reliability of the claimant’s evidence, and
(b)the causation of his injuries, and his current state and ongoing losses
The claimant’s submissions allege he has sustained injuries to the following parts of his body in the accident:
(a)soft tissue injury to his cervical spine including whiplash, soft tissue injury to the interscapular region of the thoracic spine and to the lumbar spine;
(b)soft tissue injury to the right shoulder;
(c)injury to right sacroiliac joint, pelvis and right hip;
(d)injury to right knee, and
(e)psychological injury including post-traumatic stress and anxiety disorder.
In the claimant’s particulars provided to the insurer under section 85A of the MAC Act4, the claimant asserted he had sustained an injury to his right knee. In his final submissions, and at the assessment conference, Mr Parany conceded he did not injure his right knee in the accident.
The insurer concedes the claimant sustained some physical injuries of a soft tissue nature to the various parts of his body claimed, but that the effects of these injuries have long since ceased. In the insurer’s written submissions5, the insurer said this occurred in mid-February 2012 however in the oral submissions at the assessment conference hearing, Ms Allan revised this date to the end of December 2012.

REVIEW OF THE EVIDENCE

Treatment reports

The claimant was taken by ambulance to Wollongong Hospital. The discharge summary6 provides a history of pain down the left side of the claimant’s neck and shooting into the arm. The history of the accident recorded in the notes was that
Mr Parany was stationary and hit by a car travelling at 60-70km per hour, that his seat broke, he extricated himself from the car and was walking around. A diagnosis of neuropraxia was made. In the progress notes7 is a reference to ‘Pain at left lateral neck up into base of skull’ and ‘Pain to neck radiating left shoulder down to elbow’.
Included in the claimant’s material is a chronology8 which includes details of the treatment he has received. The claimant has attended upon a number of general practitioners at four different medical centres, and he has had osteopathic and chiropractic treatment and psychological counselling. The chronology ends in February 2020. Of interest (due to Mr Hynard’s extensive records both before and after the

accident which will be discussed later) is the fact that the claimant documents only two accident-related treatments by Brad Hynard (chiropractor) in this chronology on 1 February and 31 May 2017.

In his claim form9 the claimant listed (at question 25) soft tissue injuries to his cervical spine, right shoulder, right hip/pelvis and as well as psychological injuries – anxiety. He complained (at question 26) of constant pain exacerbated with various daily activities, loss of movement, difficulty sleeping, difficulty doing household chores and gardening / moving, anxiety with respect to driving and depression.
Dr Patel signed the medical certificate attached to the claim form10 on 12 February 2012 diagnosing a whiplash injury to the neck, thoracic spine and soft tissue injuries to the right shoulder, hip and pelvis. Mr Parany is said to have been referred to a rheumatologist and osteopath and certified fit to resume normal duties with restrictions (no lifting) on 22 January 2012. There is nothing before me to suggest the claimant consulted a rheumatologist at that time.
Terry Stewart, Osteopath has provided two reports:
(a)in the first dated 12 January 201211 he diagnosed a grade 2 – 3 whiplash disorder with right shoulder and hip pain from seat belt injuries. After eight treatments there was significant decrease in muscle tension and an increase in neck and right shoulder range of motion. Mr Parany still had headaches and his right hip has improved moderately but he had weakness when bicycle riding and walking, and
(b)in the updated report of 17 April 201212 Dr Stewart noted there had been 16 treatments at that time and that the claimant had responded very well. Mr Parany was still having intermittent episodes of headaches and pain in his right hip and groin but was ‘extremely close to full resolution of his pain and dysfunction’. Dr Stewart suggested his treatment had prevented a chronic pain state, but that Mr Parany requires monitoring presumably to prevent relapsing.
According to the insurer’s list of s 83 expenses there may have been further attendances on Dr Stewart in May, October and December 2012 and one invoice rendered on 15 July 201313. There are however no further reports or records from Dr Stewart.

Treatment and related records

The claimant and the insurer have obtained documents from a number of the claimant’s treatment practitioners from before and after the accident.

Wollongong Hospital

In the Wollongong Hospital records are documents relating to three admissions:

⁹ Document R5 in the claimant’s bundle (pages 74-84).

¹⁰ Document R6 (page 83) of the claimant’s bundle.

¹¹ R28 in the claimant’s bundle.

¹² R29 in the claimant’s bundle.

(a)an attendance at emergency on 29 January 2013 with chest wall pain14. The history given was:
‘… was punched in the left side of the chest tonight (boxing) localised pain, not short of breath, no abdo pain took panadeine forte at triage with partial relief.
There is reference to the ‘MVA last year – no major injuries’;
(b)a Mental Health Transfer/Discharge Summary dated 6 May 201315 confirms an admission for four days and that the claimant was angry and had suicidal thoughts following the discovery of a relationship between his best friend and his ex-partner. A diagnosis of adjustment disorder with depression was made and Mr Parany was discharged for follow up with psychotherapy and long-term arrangements. There is no mention of the motor accident in this record, and
(c)an emergency attendance in May 201416 where the claimant had been brought in by police and was refusing to talk. The history given by the police to the hospital was:
“Allegedly found to be trying to break into his ex-wife’s house using a shovel. Altercation with police. Went through a Colourbond fence and hit his head on a concrete slab. No loss of consciousness. No vomiting.”
The claimant sustained lacerations and was bleeding. He was examined, his lacerations were sutured, and he was returned to police custody.

Wollongong Medical Centre

Wollongong Medical Centre records17 have been produced and indicate:
(a)the claimant was prescribed Lovan (20mg) an antidepressant as early as August 2004, Efexor (75mg) a different antidepressant was prescribed in January 2008, Lexapro (10mg) was prescribed in February 2011. There are anti-depressant prescriptions recorded throughout the pre-accident years;
(b)the claimant attended his GP about six times a year before the accident for medications including antibiotics and for tests and investigations and treatment of his asthma. The records do not suggest any pre-accident attendances for physical injuries or conditions affecting his neck, lower back, shoulder or pelvis;
(c)Mr Parany saw Dr Nguyen on the day of the accident (before the accident) for asthma treatment;
(d)on 16 October 2011, the claimant saw Dr Patel for treatment of his asthma

and there is no mention of the car accident in the electronic records. There is however a separate handwritten note18 of a consultation on that date which is consistent with the details in the medical certificate;
(e)the claimant saw Dr Giri on 23 December 2011 and that doctor notes the earlier consultation with Dr Patel for neck, shoulder, right hip soft tissue and lower back problems. Dr Giri records that Mr Parany was distressed with pain due to poor progress. The claimant was prescribed Celebrex (pain killer) and Panadeine Forte and his ‘usual antidepressant medication’ was recorded. The claimant was advised to continue his osteopathy treatment;
(f)the next entry was on 12 February 2012 from Dr Patel with complaints recorded of neck pain (tender and stiff), headache, right shoulder (restriction), hip and pelvis (tender), and
(g)a further entry occurs on 2 May 2013 made by Dr Irwin who records ceasing Celebrex (pain killer) and prescribed Loxolate (antidepressant) and took a history ‘agitated /violent towards others suicidal thoughts never been violent before some paranoid thinking’ and a Mental Health Scheduling form was completed.

Brad Hynard - Chiropractor

Notes from Brad Hynard Chiropractor19 have been produced. Mr Hynard has treated the claimant since July 1995. Mr Hynard had also been in business with Mr Parany and had supplied a statement in support of Mr Parany’s claim which was not relied on at the hearing.
The insurer has obtained a transcript of the records20 which show attendances since 2007 as follows:

Year Number of treatments

2007 4

2008 6

2009 7

2010 4

2011 before the accident 5

2011 after the accident 6

2012 22

2013 5

2014 3

2015 5

2016 5

2017 6

2018 8

2019 9

2020 3

The records indicate complaints in the left and right shoulder, left and right hip, left and

right sacroiliac areas, low back and neck pain before the accident with entries such as right sided tightness aggravated with lifting (4 December 1996), low back constant ache (9 July 1997), neck aggravated with activity (22 July 1998).
Closer to the date of the accident the claimant had neck pain aggravated by boxing (7 December 2009), right hip / groin possibly aggravated with lifting (17 May 2010), right hand / arm tingling sensation possibly aggravated with increased physical work (29 November 2010), neck pain right with rotation two-day history following impact to right side of head (31 January 2011), right lower cervical, tingles in right finger (2 March 2011) and low back pain aggravated following boxing left sacroiliac pain (8 July 2011).
Mr Parany attended Brad Hynard on 17 October 2011 with neck pain, right sacroiliac pain and possibly thoracic pain. On 19 October 2011 there were complaints of right sacroiliac pain, gluteal and neck pain with headache. On 4 November 2011 complaints are noted of right sided neck pain with increased symptoms over three days and right hip tenderness. On 23 and 28 December the focus was on right sacroiliac and hip tightness or pain aggravated with sitting or standing and on 30 December 2011 there was left sacroiliac pain. There were further attendances for sacroiliac treatment in January 2012 with a note on 24 January that the claimant had returned to the gym and on 10 February this was said to have caused low back pain. Neck pain reappeared on 22 June 2012 along with sacroiliac pain. On 10 August 2012 is a note that the claimant had left upper cervical issues ‘aggravated with boxing 1 day’. On 20 December 2012 the claimant was seen for right cervical pain and a note ‘return to boxing training’. On 4 March 2013 he attended for ‘check-up’ and trauma to his left anterior rib.
In June 2016 the claimant attended for spasm in the left shoulder and left medial epicondylitis, right sacroiliac pain was reported on 3 August 2016 and 5 August aggravated with long periods of squatting and sweeping. On 31 May 2017 left scapula and right shoulder aggravated by gym was recorded and on 2 March 2018, lumbar and sacral spine with pain and heavy lifting was noted. On 15 November 2019 there were complaints of right neck pain possibly aggravated with heavy lifting and repetitive with painting.
The insurer’s submissions at the assessment conference note there was no reference to Mr Hynard’s treatment before the accident in the claimant’s statement. I note there were only two references to his treatment in the chronology.
There is no report before me from Mr Hynard concerning his treatment of Mr Parany over the years and in particular his assessment of Mr Parany since the motor accident.

Roz Hamilton Psychologist

The insurer has also obtained records from Ms Roz Hamilton psychologist21 which reveal:
(a)her first treatment of Mr Parany occurred in 20 December 2012. The first matter mentioned is the motor vehicle accident and the impact it has had (unable to work or be active) but then details the claimant’s domestic life suggesting he left the relationship with his partner, the pregnancy was unplanned and other matters;
(b)a letter to Dr Bashir of the Warrawong Medical Centre advised Mr Parany

was ‘building resilience to stress and managing depression’. There is no reference to the car accident but reference to the admission to Wollongong Hospital in May, bullying at work which had happened before ‘could feel it starting all over again’. He was still symptomatic for depression, and
(c)another letter to Dr Bashir dated 25 May 2014 where it was noted that ‘depression remains severe ongoing custody battle to see his daughter’. Stress of work, insecure, bullied at work. Hard to pinpoint what it is that impedes progress but not suicidal.
The handwritten notes of the various consultations reveal significant details of a personal nature which are unnecessary to recount in these reasons other than to note there is no mention of the motor accident after the first attendance in 2012. The last record was dated 8 April 2016. There is reference to a report having been written but not for the purposes of the motor accident claim possibly related to the Family Court proceedings. There is also reference to Mr Parany’s workers compensation claim.

Workers Compensation claim and TAFE

Documents have been obtained from Allianz which managed Mr Parany’s workers compensation claim22 and these include:
(a)a questionnaire completed by Dr Yerni Oluyide on 11 August 2015 suggesting that Mr Parany’s stresses were work related including his difficulties with a new administration (computer based) system. ‘He mentioned no other stressors other than work-related stressors’. Reference was made to a past history of depression which had been medicated and which contributed to his situation. Mr Parany was certified as fit to work for six hours a day, three days a week. There is no mention of the car accident, and
(b)correspondence about the claim which appears to have been made at the end of June 2015 and liability was declined on or about 26 August 2015.
Documents produced by TAFE have been produced and include23:
(a)the online incident form for ‘injury/illness’ dated 26 June 2015 with a description of, ‘issues associated with the computer system’ and ‘recurring illnesses related to this issue including chest pains and stress’;
(b)payment records which include from before 2010 which I note show on 28 May 2010 ‘sick leave FP no MC docking24’ with similar entries 31 March 2011 and 9 June 2011 (there are no such entries in 2009 or 2008 but records suggest that leave was taken in those years). After the accident there are entries suggesting sick leave was taken on 24 November 2011, 1 March, 24 May, 7 June, 16 August and 27 September 2012 then 23 May 2013 with more frequent dates in 2013;
(c)in 2014 and 2015 there are multiple entries of sick leave some apparently

with medical certificates and others without;
(d)documents relevant to Mr Parany’s application for employment including his university record and resume, application for employment and banking details;
(e)a formal reprimand and caution regarding the criminal charges delivered on 8 December 2014 which the claimant acknowledged and signed;
(f)child support deduction advices to TAFE dated 5 November 2015 and 26 February 2016, and
(g)evidence supporting a final date of service as 18 March 2016 noting that the claimant was sick and absent from work from 8 to 14 March (medical certificate provided) and he resigned on 1 March 2016.
Ms Michelle Barratt a rehabilitation consultant and registered psychologist completed an initial assessment report dated 15 July 201525 following the workers compensation claim. The nature of the injury is listed as ‘Psychological – Difficulties managing disruptive computer system. Reports of bullying behaviours by Head Teacher’.
Ms Barratt noted ‘Mr Parany presented as open and frank regarding his personal and work-related issues and answered all questions to the best of ability’. She also noted that Mr Parany provided ‘a detailed account of the build-up of problems leading to his lodging a workers compensation claim’. He mentioned concern at time off work ‘due to a series of personal physical health and family issues’.

The history from the claimant recorded by Ms Barratt is that his life had become a ‘saga’ and he had felt overwhelmed and challenged by multiple personal incidents listed as:
(a)his divorce and a ‘custody battle’ which was continuing;
(b)severe financial difficulties in relation to the legal costs and noting Mr Parany was representing himself;
(c)three surgeries for physical maladies including a hernia repair ‘that was a very slow and painful recovery’;
(d)the death of his father ‘after being gravely ill for a prolonged period’;
(e)attendances on a psychologist ‘to assist with coping’ and Lovan prescribed a year ago;
(f)bullying and harassment by his supervisor who he thought was treating him unfairly – rostered with long days of face to face teaching and all TVET (high school classes);
(g)pressure to return to work quickly with not enough time for recovery or to mourn his father’s passing;
(h)two days unexplained absence many years ago caused him to be denied seven years of long service leave;
(i)unpaid sick leave due to the computer system, and
(j)while not ‘outwardly’ inappropriate, Mr Parany thought his supervisor ‘used his power as a manager to manipulate [the] situation in a negative manner’.
The computer system issues appeared to have been the ‘last straw’ in that the claimant had uploaded student’s marks which had not saved resulting in delays and stress.
The claimant’s duties involved 20 hours a week of face-to-face teaching with 15 hours of related duties including marking, assisting students and preparing coursework.
A plan was set involving an appointment with his psychologist, nominating a doctor who was engaged and knowledgeable in stress matters to assist him, reviewing his medication and attending a case conference with his doctor. Other suggestions were made to assist the claimant with the computer system and to improve his sleep and working with his psychologist ‘on graded activity scheduling to return him to his usual surging/boxing training and other leisure activities’.
In a further report dated 5 August 201526 documenting the rehabilitation plan, the claimant was reported to have expressed concern at his ability to return to work due to feeling overwhelmed by his circumstances. The report also notes the claimant’s pre- claim issues, ‘extensive psychosocial and non-work related stressors’ and notes that Allianz had organised an independent medical examination. It does not appear this examination took place as the claim was denied on 26 August 2015.
There does not appear to be any mention of the motor vehicle accident in these documents.

Warrawong Accident and Medical Centre

Multiple copies of the medical records from Warrawong Accident and Medical Centre were included with the Allianz file and another copy with one updated attendance was provided separately.27
(a)there were three attendances pre-accident and a record of the accident although not apparently as a result of an attendance on that day;
(b)an entry of 15 June 2012 records a review of depression with the note ‘mentally stable’;
(c)there is a mention of the car accident on 4 October 2012 in the context of seeking referral to another osteopath;
(d)on 23 November 2012 is a lengthy note after a mental health review with what appears to be a diagnosis of an ‘adjustment disorder secondary to neck injury causing symptoms of depression’. There is reference to stress at work about funding cuts;
(e)on 1 May 2013 there is another lengthy note referring to a breakdown

following an argument with his ex-partner;
(f)an entry on 5 July 2013 suggests the claimant aggravated his motor accident injuries when pushing a kid’s bike and Mr Parany was tender in the right groin and right lumbar spine;
(g)on 16 July 2013 Mr Parany was saying there was stress at work, stress at home and he cannot function properly. He mentions bullying and that he was seeing a counsellor. A further consultation on 19 August 2013 refers to more stress including the custody dispute. The claimant wanted stress leave and was offered counselling and referral to a psychiatrist;
(h)there is an entry on 23 January 2014 for ‘reactive depression’ concerning a false allegation made against him and a breach of an AVO ‘is having a deteriorating effect on his mental health’;
(i)the incident with the police is referred to in a consultation on 31 May 2014 and the claimant reported injuries including an exacerbation of right neck/ shoulder problems from the car accident, left shoulder pain from ‘cuffs / pulling’, a number of lacerations and bruising to right hip;
(j)8 April 2015 – stress is reported to be caused by work and marriage breakdown and finances. There are similar reports on 25 May, 6 July, 17 July, 28 July, 19 August 2015 and 8 March 2016. In all of these consultations there is no reference to the car accident;
(k)on 17 September 2016 the claimant attended the practice with a low mood and ‘reactive stress to losing all contact with 5yr old daughter. Long custody battle – courts orders have said ‘no contact’. Has shared custody of previous two children. Would like to see psychologist. Feels as if in the middle of a grief reaction’;
(l)Mr Parany consulted the practice on 7 October 2016 as he was travelling to Indonesia and required vaccinations, and
(m)the final attendance in the records is on 30 December 2016 where the claimant was given a Centrelink medical certificate and a repeat of his Lovan script. It was noted ‘some stressors at the moment with family law court, also could be losing house, hard to look for work at the moment’.

Corrimal Medical Centre

These notes from Dr Innocent Nwali and others were provided in the claimant’s bundle of documents28 and they include attendance as follows:
(a)16 December 15 - stress re court case. On Lovan for anxiety, denies depression. Referral to Centrelink;
(b)from May to September 2016 there were several complaints of left elbow pain for which the claimant was referred for physiotherapy and a Centrelink certificate noted Mr Parany was unfit for work from 2 September to
1 October 2016 due to left elbow pain. He was referred to an orthopaedic

surgeon and there is no mention of the car accident;

(c)from May to July 2017 there were references to shoulder pain and in August 2017 depression. Further Centrelink certificates were issued suggesting the claimant was unable to look for work from 8 June to 31 December 2017. There was another reference to a mental health plan relating to family issues with no mention of the car accident;
(d)on 13 December 2018 the claimant attended reporting pain in his thigh – ‘inner aspect rt, thigh impaired mobility reduced movement. Reports previous history of injury and has always had discomfort no improvement and wondering if it is something else’. Mr Parany was referred for an ultrasound. On 7 January 2019 there was a follow up regarding the hip following physiotherapy and a cortisone injection. On 28 March 2019 the claimant attended again concerning degenerative changes in his right hip and there is a note regarding a recent injection. The claimant was keen to get another injection but was advised to have physiotherapy, and
(e)on 30 April 2019 Mr Parany presented with anxiety issues in relation to an absence of access to his child and a Centrelink medical certificate was produced. On 7 January 2020 the claimant was prescribed an antidepressant and referred to a psychiatrist.

Walk Different Psychology

The notes of Walk Different Psychological Services were produced29. The first consultation occurred on 20 January 2020 where it was noted that Mr Parany presented with relationship difficulties, grieving loss of child, job loss and frustrations with seeking work.
At the second consultation (3 February 2020) the claimant was limping. It is reported that his hip, neck and back were sore, and he had difficulty standing after sitting. He gave a history of the car accident in 2011 and ‘resulting injuries and physical limitations’. Mr Parany and the psychologist ‘explored themes of significant loss and grief amongst multiple traumas co-occurring’. Notes were made about workers compensation stress, ongoing psychological impacts of stress, financial stress and employment stress.
A third appointment is recorded as having occurred on 25 February 2020, with a progress note30 identifying the presenting issues as; relationship difficulties, life stressors and low mood resulting from distressing events.

King Street Dental and Medical

King Street Dental and Medical have also produced medical records which are before me31 and which relevantly record:
(a)18 September 2020 – long consultation on multiple issues. History of chronic fatigue syndrome ‘post over training for body building. MVA 10 years ago yet to be settled. Child and custody – chronic depression takes Lovan – multiple psychologists over the years disrupted due to covid.

(b)31 October 2020 - upset not coping ongoing issues with insurance asking for statements ran out of scripts – Lovan;
(c)from 3 November 2020 there is a series of attendances for left inguinal and thigh pain. An ultrasound was obtained (6 November) which suggested bilateral hip osteo-arthritis left inguinal hernia referral. Pain continued in February 2021 and the claimant was referred for an MRI scan and to an orthopaedic surgeon. He was given a Centrelink form. A further attendance on 21 May 2021 referred to ongoing left hip pain and on 3 August 2021 was an attendance for bilateral hip pain and depression;
(d)a letter dated 12 March 2021 was sent from Dr Stackpool to the GP noting left hip symptoms in the last six months with some intermittent pain in the groin. He was recorded as taking regular Panadol and anti-inflammatory medication. It is also recorded that Mr Parany gave a history of similar symptoms on the right which settled with an injection. He was noted to have near normal gait and he was well-muscled. The MRI was reviewed and interpreted as showing a degenerative labral tear which was not significant. A diagnosis of intermittent early left hip arthritis was given, and
(e)a Centrelink certificate was provided by Dr Barnaby Gordon Hall saying Mr Parany was unfit for work 16 February to 16 May 2021 due to ‘right hip pain post MVA and Left Hip labral tear’. This was said to have started on 18 September 2020 and was said to be permanent.

Healius Corrimal and Dapto

Finally, there are documents produced by Healius Corrimal and Healius Dapto32 which include the following relevant records:
(a)28 May 2014, pain in the left shoulder for a long time. Injured right a few years back and favours the left – MRI and review;
(b)6 June 2014 - had MRI left shoulder anterior labral tear partial thickness tear supraspinatus tendon subacromial subdeltoid bursitis;
(c)20 April 2017 – MVA 2011 injured shoulder recently ?? slack lesion pain with external rotation / limited elevation ? rotator cuff lesion – actions USS right shoulder;
(d)1 May 2017 – steroid injection right shoulder biceps tendinopathy, and
(e)29 May 2021 - right shoulder still symptomatic some improvement with steroid injection.

Claimant’s medico-legal evidence

Dr James Bodel

Dr Bodel examined the claimant at the request of Mr Parany’s solicitors and provided two reports dated 10 August 201233.
According to the history taken, Mr Parany was, at the time of this assessment still employed by TAFE having ‘minimal time away from work’ and ‘occasional’ days off.
The claimant complained of injuries to his back, neck, interscapular region and right shoulder, an injury to his right sacroiliac joint, pelvis and right hip.
Dr Bodel says, ‘over time he made steady progress but has never completely recovered’. Mr Parany was reported to take the occasional Panadeine Forte and was having osteopathic treatment.
The claimant said before the accident he was very active, surfing, boxing (training twice a week), bike riding and weight training and that he had returned to ‘some of these activities in a very light manner only once a fortnight’. Mr Parany was reported to struggle with domestic duties.
He was observed to be ‘well-muscled’, tender in the neck with slight restriction to the right. His right shoulder movements were full or with slight restrictions but with no impingement.
Dr Bodel expressed the opinion Mr Parany had sustained soft tissue injuries to his neck, right shoulder and back with ongoing pain and stiffness. He was of the view (point 4 page 5) the claimant may have some minor disc pathology in the neck and or the back and a rotator cuff problem but that he had not seen any radiology to confirm this. The claimant was encouraged to return to exercise.
Dr Bodel was of the view the claimant was incapacitated for work on an intermittent basis and that he may have difficulty working to full retirement age or that he may have to shorten his working hours. He supported a need for two hours of ‘domestic assistance’ per week on an indefinite basis.
In a separate report Dr Bodel assessed the claimant’s whole person impairment at 12% - 5% impairment to the neck, 5% for the back and 2% for the shoulder. Dr Bodel says ‘there is no separate rating for the pathology in the right hip or the right knee’.
Dr Bodel did not have any of the more recent documentation and in particular did not have the pre-accident records of Brad Hynard. Dr Bodel does not therefore engage with the issue of causation. Dr Bodel noted he did not have radiology to confirm pathology yet says (at point 8 page 5) there is ongoing pathology causing disability. Dr Bodel refers in his impairment assessment to pathology in the hip and the knee.
There was no complaint by the claimant in the recorded history of right knee symptoms and there is no reference to ‘pathology’ in the right hip.

Dr Gerard Barold

Dr Barold reported on 2 December 201334. He records that the claimant was fit and active before the accident bicycle riding, jogging, surfing, boxing and weight training but has been restricted since the accident.
Under the heading ‘medical history’, Dr Barold notes the claimant had two fractures as a child and had a ‘bout of anxiety and depression in the year 2000 with him relating this to his university studies’. Dr Barold records the claimant had counselling and
anti-depressant medication but that ‘he advised that he ceased the need for any counselling or medications several years before the accident’.
Dr Barold also recorded:
“He also advised that he was in the habit of undertaking occasional massages and chiropractic treatments “for muscle maintenance” but reported he had not required such treatments for quite a period before the said accident.

…

More specifically, he denied any previous injury or symptoms to the neck, right shoulder or right hip and groin prior to the subject accident.”

Dr Barold reported the claimant took Panadeine tablets and Voltaren occasionally.
Dr Barold took a history from Mr Parany of his attendance at the hospital on the night of the accident, an attendance at a medical centre where he was ‘prescribed Nurofen and osteopathic treatment’ which he said were of limited benefit. Dr Barold then records attendances on Drs Giri and Patel in Wollongong because of ongoing problems and that he was prescribed more pain killers and further osteopathic treatment and that he took occasional days off work.
Dr Barold reports that the claimant had an episode of more severe low back pain, right buttock and groin pain just before Christmas 2011 and that he borrowed his father’s ‘Zimmer frame’ to help him mobilise.
The claimant allegedly reported depression and anxiety and was referred to Roz Hamilton.
Dr Barold records that the claimant was independent in self-care but needed his partner to undertake his domestic chores for the first two weeks.
The claimant reported many difficulties including:
(a)constant dull neck pain aggravated with activity;
(b)constant headaches;
(c)constant pain radiating from the neck into the right shoulder aggravated with activity;
(d)occasional pain radiating down the inner aspect of the right arm;
(e)occasional right sided low back pain sometimes radiating into the right buttock and groin;
(f)disturbed sleep;
(g)difficulties with home and garden duties, and
(h)episodes of anxiety, poor memory, concentration and flashbacks.
Dr Barold observed the claimant to be fit looking with no abnormal gait or posture.
There was neck stiffness and restriction, ‘full pain free range of movement’ in both upper limbs but restriction of internal rotation in the right shoulder. There was some restriction of movement in the lumbar spine and right hip.
The claimant was diagnosed with ‘mechanical straining injury to neck and lumbar spine with associated radiating right trapezial muscle spasm causing restricted right shoulder movement’. He also expressed the view that the claimant’s right buttock and hip pain related to the lower back but said there was no assessable impairment.
Dr Barold then says that it appears Mr Parany has developed psychological symptoms of a post-traumatic stress disorder, that the treatment today has been of limited benefit and he needs further treatment. I note that this appears to be outside the expertise of Dr Barold.
Dr Barold says the treatment has been appropriate, but it is unlikely Mr Parany’s symptoms will resolve, and they will wax and wane for an indefinite period.
Dr Barold was of the opinion the claimant was fit for modified pre-injury work duties but needs to avoid repetitive or sustained neck and back flexion and he should limit
weight-lifting to 5kg. He suggested Mr Parany should have a gym program addressing his neck and right shoulder and a core strengthening program. He made a number of other suggestions for care and assistance, treatment and aids.
In a separate report, Dr Barold assessed impairment at 11% that is 5% for the neck, 5% for the lower back and 1% for the shoulder.
In a second report dated 5 December 201835 Dr Barold records that the claimant continued to experience pain in the neck, right shoulder and right hip and groin which he self-managed with chiropractic treatment and dry needling.
Dr Barold states:
“His symptoms have continued and in fact increased with him needing to take occasional days and weeks and sometimes months off from work due to a combination of varying pains in the lower back, right hip, right groin and right shoulder with him eventually resigning from his work as a TAFE teacher sometime in early 2016.”

Dr Barold records the claimant did not work for a year and has opened a practice averaging three to four hours of dry needling for a few clients every week.
The claimant said he had four cortisone injections in the right shoulder, saw various GPs and has had occasional chiropractic treatment focussing on his right hip, groin and neck. He reported left elbow pain which Mr Parany considered was due to overuse of his left arm.
Dr Barold said, ‘On further questioning, Mr Parany denied being involved in any further accidents or incidents which may have impacted on his condition’.
On examination, Dr Barold noted the claimant was pain focused and mobilising with a shuffling gait demonstrating fear avoidance. He was tender with left paraspinal spasm in the lower back but no tenderness or spasm in the neck. He was cautious with his right shoulder and there was some muscle wasting. Fear avoidance reduced all movements in neck and his shoulders were difficult to examine. The claimant had
difficulty on his toes, heel walking and squatting and there were painful movements in the lumbar spine.
Dr Barold’s opinions were:
(a)mechanical straining neck and lumbar spine injury as well as a right shoulder injury ‘which has become chronic bursitis’. Lumbar injury has led to an altered gait which has triggered hip and groin pain;
(b)Mr Parany has developed a chronic adjustment disorder due to pain;
(c)‘it is unlikely his injuries will totally resolve and the history is consistent and injuries are causally related’;
(d)the claimant is fit to return to work as fitness instructor or teacher but should limit lifting to 5kgs, and
(e)again, he needs care and assistance on an ongoing basis with a number of treatment modalities.

Occupational Therapist Ms Maria Lucas

There is a report from an occupational therapist, Marie Lucas dated 29 February 201636 who takes a history of some improvement over two years but that his condition has now plateaued. She records he has treatment when there is a flare up. She records Mr Parany takes OxyContin (an opioid medication) during these flare ups but otherwise Panadeine and Voltaren Gel.
Ms Lucas takes a recent history of inguinal hernia in the right groin and occasional lower back pain before the car accident but ‘that he did not require any treatment of lower back pain prior to the MVA’.
Ms Lucas was provided with Dr Bodel and Dr Barold’s reports but does not appear to have had any of the other material. She visited Mr Parany at his home which he said at the assessment conference that he has since sold.

Insurer’s medico-legal evidence

Dr John Garvan

The insurer obtained a report from orthopaedic surgeon, Dr John Garvan dated 16 July 201237. Dr Garvan was provided with the information available at that time (the claim form, medical certificate, discharge summary and Dr Stewart’s report).
Dr Garvan’s history of the accident is comprehensive. The claimant’s two children were in the car. It was clearly a significant impact and the claimant is said to have had an argument with the driver and a bystander shortly afterwards.
The claimant gave Dr Garvan a history of his treatment at hospital, attendance at the Wollongong Medical centre who gave him a referral to an osteopath. Mr Parany said he took Panadeine Forte with flare ups. He reported that initially only his neck bothered him but then within three to five days his right shoulder became sore and his
right buttock, right hip, right groin and lower back and sacrum developed symptoms.
He reported an incident a day or two before Christmas 2011 when his pelvic and lower back pain increased, and he used a ‘Zimmer frame’ from his father. He also reported ‘bad’ neck pain on Christmas day.
The claimant reported continuing neck problems. While he had a good range of movement, his neck was painful and aching.
The claimant denied major medical problems but conceded he had first suffered from anxiety and depression in 2000 due to university studies and his ‘situation’ and that he was prescribed an antidepressant which he continued to take. He reported no major medical problems before the accident.
Dr Garvan records a history from the claimant that he can drive, is able to cook, wash and hang out his clothes and he can do the cleaning, gardening and lawnmowing. He also noted the claimant returned to teaching after a week of holidays.
The claimant told Dr Garvan about his pre-accident sports but says he cannot do as much due to pain. He also enjoyed renovations and landscaping which he had put on hold ‘a bit’. He does gym workouts at work but not as much as before.
Dr Garvan takes a history of the claimant’s work 8.30am to 4.30pm, five days a week ‘he stated that the majority of his work was physical doing things such as surfing instruction, beach exercises’. On examination Dr Garvan noted the claimant was ‘quite muscular and well built’.
Dr Garvan doubts the hospital reference to left sided pain and the diagnosis of neuropraxia and accepted a diagnosis of cervical strain and right shoulder strain as well as strains of the lower back and right hip.
Dr Garvan thought there was no need for further treatment, no impairment to the claimant’s ability to work and no pre-existing medical conditions that would impact the claimant’s employment.

Dr Steven Ng

The insurer obtained a report from Dr Ng dated 18 July 201238. He takes a history of no previous surgery or operations, no regular medication other than Ventolin and that he was in good general health other than asthma. Mr Parany told Dr Ng that he was active but had returned only to cycling and light weight training.
The claimant gave a consistent history of treatment suggesting he took Panadeine Forte for the first three weeks only.
Mr Parany was examined, and Dr Ng diagnosed a whiplash disorder grade 2 and soft tissue injures to the right shoulder, thoracic spine and mechanical lower back pain.
Dr Ng said, ‘it is my opinion that Mr Parany has made full recovery from his right shoulder and thoracic spine soft tissue injuries’. However, he then goes on to say, he noted residual pain and mild functional limitation from the neck and lower back. He gave a guarded prognosis suggesting the claimant needed investigations such as a CT or MRI scan and that he was likely to experience chronic pain in short to medium

term. It would appear there is perhaps a typographical error in the report as it is clear Mr Parany had not made a full recovery in the light of those complaints.

Dr Ng suggested the claimant required a gym based and water based strengthening program over three months. Dr Ng was not of the view that Mr Parany’s employment had been affected by the accident noting that he had returned to work after the university holidays.
Dr Ng considered the claimant had no permanent impairment to shoulder or lower back but 5% impairment to neck function from that injury.

Multi-disciplinary earning capacity assessment

The insurer also obtained in March 2017 an earning capacity assessment from
Dr Robin Mitchell (Occupational Physician), Yulla Makhul (psychologist) and Christina Barni (consultant in rehabilitation).39
The claimant gave a history of the accident and that he was a TAFE teacher at the time and on holidays, but he resumed his normal work the following term. He said his role changed and he was not as involved in carrying out the physical demonstration work.
He told the examiners his only treatment was the occasional Panadeine Forte. He said he was well before the accident.
The claimant said he continued to have neck pain and pain in the right shoulder, right hip (there is no mention of back pain). He was fully independent with activities of daily living and managed all normal domestic responsibilities but called on friends for any significant maintenance ‘he continues to renovate his home’. On examination there was mild restriction in the lower neck, back and hip and a diagnosis of soft tissue injury was made.
The psychological assessment suggests that the claimant requested a change to his work so that he was lecturing only and not demonstrating. He then details his relationship breakdown, the court proceedings over access to his daughter and the bullying and harassment he says he received at TAFE. The claimant said that because of the car accident his ‘coping skills’ were reduced. The claimant reported symptoms of depression, anxiety and a loss of identity having lost an outlet for stress relief.
He cooks for himself and his kids when they come to stay. Mr Parany said he uses his phone to make appointments and complained about his memory.
The final opinion of the authors of this report is that the claimant has the capacity to return to full time work as a lecturer in health and recreation, a practice manager or a gym manager.
A supplementary report was provided in relation to domestic assistance40 which recorded a history from Mr Parany of requiring assistance for the first two weeks but a return to normality thereafter noting that he ‘no longer receives any domestic assistance of any nature’ but that if he had heavier aspects of renovation work he

might call on friends.

Dr Robin Mitchell

Dr Robin Mitchell provided a supplementary report dated 6 April 202141 following the provision of the chiropractor’s notes and the transcription of them. She summarises those documents as follows:
“The transcribed medical records appear to document ongoing relatively widespread musculoskeletal symptoms from 10 July 1995 and 23 December 2020 some details of which were apparently illegible.

That is significant symptoms were reported to have occurred from that time in the neck, thoracic and lumbar back as well as the sacroiliac joints, sufficient to attend for chiropractic treatment on a regular basis for a number of years prior to the subject motor vehicle accident.”

She notes none of this earlier history was communicated to her and says it does not alter her previous opinions.

Dr John Ashwell

Dr Ashwell, orthopaedic surgeon was retained by the insurer to provide a report in June 201942. He took an extensive history of the accident and the immediate aftermath and he has a history of domestic assistance and help from friends in the first two weeks.
The claimant reported:
(a)the increase in pain in December 2011 and the use of the ‘Zimmer frame’;
(b)a return to work in January 2012 and continued until late 2016 ‘He states he did have difficulty with doing practical classes due to his injuries;
(c)increased depression requiring psychological help into 2013, and
(d)the head injury in May 2014 when he says he was assaulted by police.
He reported ongoing neck pain, right shoulder pain and right hip and groin pain, treatment by a chiropractor, cortisone injections into his right shoulder in August 2017 with short term relief, left epicondylitis in June 2016 but the development in the last seven to eight months of increased pain in his right hip and pelvis areas.
He admitted ‘occasional muscle soreness’ before the accident treated with massage and chiropractic treatment but ‘this was not a major injury and never diagnosed’.
He was complaining of constant pain in the neck, constant soreness in the right shoulder and right hip and constant pain in the low back right buttock and thigh. Activity appears to aggravate his symptoms of pain and soreness.
He says he lives alone managing his own self-care, grocery shopping, housework and yard work although gets help with flare-ups.
He reported his pre-accident sports saying he has returned to the gym once or twice a

week.
Dr Ashwell took a record from Mr Parany that he returned to full time work with TAFE in January 2012 with occasional time off work and finished at TAFE in 2016 ‘for other reasons’. He relates this to difficulty with the practical classes and workplace harassment.
After examination, Dr Ashwell considered ‘the injuries are consistent with the history as stated’ and he diagnosed soft tissue injuries to the neck and lower back with tendinitis and bursitis in the right shoulder and right hip labral degeneration with a possible labral tear. He suggested an MRI be done.
Mr Parany was assessed as having a 9% whole person impairment. 5% for the neck, 2% for the right shoulder and 2% for the right hip.
Dr Ashwell re-examined the claimant on 10 February 202143. He records the claimant working two to three hours a week doing dry needling. Mr Parany said he stopped teaching because TAFE had a requirement that he work 120 hours a year. The claimant had completed a Certificate III in Business.
Dr Ashwell records an increase in left hip pain and that the claimant was no longer seeing a psychologist. Mr Parany also apparently advised he had recently developed a left inguinal hernia. The claimant complained of constant pain in the neck with occasional paraesthesia in the right hand, constant pain and restriction in the right shoulder, intermittent pain in the right hip and constant pain in the right side of the lower back over the sacroiliac joint. The claimant is recorded as taking Nurofen and Panadol but not having other treatment.
Dr Ashwell had an employment history of the claimant undertaking massage work 10 hours a week in addition to his TAFE work before the accident and that he returned to work but limited his practical classes after the accident and then had to leave TAFE because of the system which required him to have 120 hours of work in the industry associated with the courses he was teaching.
Dr Ashwell’s opinions as to treatment, care and work capacity had not changed. He noted the claimant was managing at home living by himself in a residential house of two storeys with occasional help from his son.
Dr Ashwell did consider the claimant had some incapacity for employment in that he was fit for suitable duties not more than 30 hours a week and with no heavy lifting of more than 10kg. He did not think Mr Parany required domestic assistance beyond the first two weeks.
A supplementary report from Dr Ashwell dated 9 April 202144 reviewed the chiropractor’s notes. While Dr Ashwell noted there had been no diagnosis by a medical practitioner, he expressed the view that there was a significant past history of ongoing symptoms from the areas listed as injured in the subject motor vehicle accident. He says:

“Based on this evidence, it appears he suffered an aggravation of his pre-existing conditions to the cervical and lumbar spine, right shoulder and right hip as a result of the subject motor vehicle accident, though his general practitioner had not treated him for

these symptomatic areas. The chiropractor notes do indicate at times that he had constant pain in the cervical spine area and at other times significant discomfort in his mid-thoracic spine and low back area with activities. These documents indicates that there has been little change to his symptoms, particularly in the spine region, since the subject motor vehicle accident. I therefore believe the subject motor vehicle accident of 30 September 2011 would have caused no more than a minor aggravation of the areas listed. On re-assessing his cervical spine, his symptoms had not changed after the motor accident and the x-ray dated 30/9/11 was reported as normal. I therefore believe the cervical spine can be excluded as an injured area from the motor accident. The lumbar spine symptoms were also present and equivalent both before and after the accident and never subject to an x-ray so that area does not appear to have been injured and should also be excluded.

On reassessing his permanent impairment, it is questionable what impairment should apply to these injured areas as it appears there has been little change in symptoms and no specific diagnosis as a result of the subject motor accident. At my last assessment, with report dated 10 February 2021, I noted full range of hip movement so no impairment would now apply for the hip area (AMA 4 P3/78 T 40). The previous assessment on 28/6/2019 for the right shoulder should still apply giving 2% WPI from the subject motor accident. Under the NSW motor accident (SIRA) guidelines, I am unable to apply a deduction as no definite figures for range of movement or joint restrictions were available from the period prior to the subject motor vehicle accident.”

Dr Graham Vickery

Dr Vickery is the only psychiatrist who has examined the claimant and provided a report in this case45. He appears to have all the relevant records including the clinical notes of Dr Hamilton, Allianz (workers compensation claim) records, the Wollongong Hospital records and clinical notes from the claimant’s pre accident GP.
He takes a history from the claimant of two surgeries and a diagnosis of chronic fatigue syndrome.
Dr Vickery takes a history of the claimant’s physical symptoms and major stressors with litigation matters, in particular, this claim.
Dr Vickery takes a history of letting out an AirBNB and that he prepares this for guests. The claimant said he had been looking for work, but that people did not want to employ him when they found out he has an injury.
The claimant is reported to have said his work as a full time TAFE teacher involved ‘strenuous physical demonstrations and standing for long periods’ and he said he had to have numerous days off work due to pain and he took stress leave in 2012. He said he was being harassed by the head teacher because he could not do the physical tasks and was put in the most difficult classes and he resigned.
Dr Vickery noted that the claimant was frustrated and despondent with the litigation associated with his claim.
He diagnoses Somatic Symptom Disorder in which there are prominent somatic symptoms associated with excessive health concerns which give rise to significant psychopathology and functional impairment. Dr Vickery had considered the Assessment of Dr Rosenthal and his view that there was ‘no apparent medical basis

for the incapacitating pain being due to the motor vehicle accident’. He says (at page 9):

“Somatic Symptom Disorder is known to be more frequent when there have been stressful life events while the presence of comorbid anxiety or depression due to these stressful life events is known to exacerbate both the somatic symptoms and the associated impairment in function.”

He then diagnoses Persistent Depressive Disorder due to personal stressors and provides a guarded prognosis.
A supplementary report from Dr Vickery46 comments upon the statements and the TAFE documents but states that the doctor does not wish to alter his opinions.

Medical Assessments

Assessor Rhys Gray

Medical Assessor Dr Rhys Gray (orthopaedic surgeon) examined the claimant for the purposes of determining a dispute about whole person impairment.47 No further assessment was applied for under section 62 of the MAC Act and no application for review was made under section 63.
Assessor Gray took a history from the claimant of being in good health before the accident but that five years before the accident he was diagnosed with depression and was prescribed medication. Assessor Gray recorded medication including Lovan and Panadeine Forte / Mersyndol and depression for five years before and continuing.
The claimant is reported to cycle, attend the gym once a week and has returned to surfing. Before the accident he also boxed, ran and trained with weights.
Assessor Gray has recorded a lengthy history of the accident and onset of injuries and records the exacerbation over Christmas 2011 with the requirement to use a ‘Zimmer frame’ for a couple of days.
Because the knee was listed as an injury, Assessor Gray questioned the claimant about right knee symptoms and the claimant said he ‘may have hit the steering column with my knee’ but it is recorded that there have been no symptoms in the knee and no treatment for the right knee.
The claimant reported constant headaches, difficulties with his neck including a constant dull ache and pain in the right side of the neck which radiates into the shoulder. He described a dull ache in the right buttock region and that his right hip ‘fatigues earlier’ on cycling. The claimant denied any specific low back or lumbar pain but did point to the right sacroiliac, right buttock and right groin area as a site of intermittent discomfort.
Assessor Gray records on page 8 under the heading ‘past history’:
“Mr Parany denied any past history of injury or symptoms related to the neck, right

shoulder, low back, right pelvic region or right knee before the above motor accident.”

On examination it was observed that Mr Parany was ‘generally well muscled’. There appears to be some restriction of movement in the neck and right shoulder. In the lumbar spine there was normal movement but some tenderness at L5 and over the right sacroiliac region.
Assessor Gray had limited documentation (the hospital discharge summary, Dr Patel’s note dated 6 October 2011 and Dr Bodel’s report). Assessor Gary diagnosed soft tissue injuries to the neck, right shoulder, lower back and right hip resolved but that there was no injury to right knee. He assessed whole person impairment at 6% - 5% for the neck injury and 1% for right shoulder impairment.

Assessor Thomas Rosenthal

Dr Rosenthal is an Occupational Physician, and he was referred a dispute between the parties about ‘domestic assistance’48. There is a dispute between the parties as to how I should interpret or apply Assessor Rosenthal’s findings which I will deal with later.
Under the heading ‘History as Given by the Injured person’ and the sub-heading ‘Pre- Accident Medical History’, the claimant is recorded to have said ‘he had no pre-existing medical conditions’. The claimant did however disclose a right inguinal hernia, vasectomy and rectal fistula. Assessor Rosenthal also notes ‘In terms of his listed injuries he reported no pre-existing medical conditions’.

The claimant reports swimming, some surfing but no running or walking and that he had stopped his boxing. He reported difficulties with domestic and garden duties, and it is noted that he receives assistance from friends.
Mr Parany complained of headache with restricted movements in the neck and right shoulder along with right hip and pelvis pain. Assessor Rosenthal records that these symptoms are all fairly constant but vary in intensity. The claimant is said to take Panadeine Forte once a week.
Assessor Rosenthal’s findings included:
(a)no right knee injury caused by the accident;
(b)minor restriction in his neck and right shoulder and minor irritability in the right hip and that it is reasonable he would have difficulties with some of his heavier domestic duties, and
(c)home maintenance and gardening activities would be difficult for him to perform.
Assessor Rosenthal had some of the reports served in this matter, but he did not have the chiropractor’s notes or many of the other clinical notes obtained by the insurer.

Other Evidence

PBS records49 suggest fluoxetine and venlafaxine (both anti-depressants

prescriptions) were filled from 12 Dec 2005 to 17 May 2010 and then from 15 June 2012. Pain killer type prescriptions do not appear to have been filled until July 2014.
Records were produced by the Wollongong City Council regarding the claimant’s sub- division of his block of land (2017) and him converting a shed and building a dwelling at the back of the block (2015-2016). In 2018 he had a pool built on the back block.
Records were also produced by Endeavour College showing the claimant applied in November 2016 to a course there disclosing he was running his own ‘successful practice as a myotherapist’ and that he had 40 hours available for studies. The documents suggest he left the course because of issues with recognition of prior learning which he considered to be ‘onerous, demeaning and insulting’.
The insurer obtained a copy of the claimant’s criminal record50. In my view there is no need for me to reference any of that material other than to note there was the incident in May 2014 and other material confirms my views that during 2013 and 2014 the claimant appears to have been enmeshed in matters relevant to his relationship breakdown and access issues involving his daughter Sienna.

Lay Evidence

The claimant provided a number of statements from those who have allegedly provided him with domestic assistance, gardening and home maintenance assistance including his mother and Brad Hynard. The claimant no longer relies on these statements and I will not consider them in this assessment.

Claimant’s Evidence

Mr Parany’s first statement

The claimant’s statement51 provides details of his family situation and his tertiary qualifications. His statement also details:
(a)his previous accident history (ages 7 and 10) including a previous bout of depression associated with university studies. He said he saw a counsellor and used anti-depressants however ‘ceased taking them several years before’;
(b)he was in good health other than asthma and he surfed, ran, cycled, boxed and went to the gym before the accident;
(c)he was involved in a four-year long Family Court matter involving custody and access to his children, three criminal convictions and a breach of an AVO in 2016/17. The claimant says he was arrested for assaulting a police officer and served a seven-month suspended sentence;
(d)the claimant says his car was badly damaged in the accident and was towed away;
(e)the claimant said after the accident he had pain down the left side of his neck into his arm and he attended a physiotherapist who refused to treat him as he was ‘too acute’. He went to an Osteopath Terry Stewart

complaining of neck, right shoulder, back, right hip and groin pain. He complained of headaches. Mr Parany says he saw Dr Stewart 11 times between 6 October and 21 December 2011. On 17 October he ‘commenced’ seeing a Chiropractor for neck and back treatment five times between the date of the accident and the end of the year. In 2011 he also saw his GP Dr Patel;
(f)in 2012 he had 14 treatments with the Osteopath and 22 with the Chiropractor, 19 sessions of acupuncture and dry needling and attendances on several GPs and had a mental health plan to address the low mood, low energy and depression the claimant says he was experiencing because of his neck pain;
(g)treatment continued in 2013 including four counselling sessions, three attendances on his GP, five attendances on the Chiropractor and seven attendances for massage and dry needling. The claimant concedes that during this time he was having issues with his ex-partner and work issues which were discussed at the same time as his accident;
(h)the claimant says psychological counselling in 2014 and 2015 focussed on his family court issues and workplace bullying issues and that he had continued physical therapies for pain in his neck, back and right shoulder;
(i)in 2016 the claimant says he had treatment to his left elbow due to pain (June 2016) and that he continued to suffer pain and restriction of movement in his neck, lower back right shoulder and right hip;
(j)in 2017 the claimant had regular treatment for mental health issues, saw his GPs, chiropractor and had some more dry needling. He says his right shoulder was getting worse and so he had a series of investigations and cortisone injections;
(k)Mr Parany says he had further chiropractic treatment, attendances on his GP and an ultrasound of his groin and thigh due to continued pain and weakness in 2018;
(l)in 2019 Mr Parany had six attendance on his GP and 8 Chiropractic treatments. In 2020 he had one attendance on his GP, three counselling sessions and three chiropractic treatments, and
(m)the claimant says he is prescribed an anti-depressant and takes Panadol Osteo and Voltaren Gel.

In terms of his future treatment the claimant says he will need to have ongoing treatment from his GP and a specialist ‘to alleviate and correct soft tissue bony joint injuries’. He says he will need treatment to minimise ‘accelerated deterioration of his joints’. He says he has been helped by physiotherapy and remedial massage and wants to continue this as well as having psychological counselling and medication.
The claimant says he has additional travel expenses and cannot change a tyre so requires NRMA membership. He claims damages for increased business class travel to Greece and South East Asia saying he cannot sit in economy.
Mr Parany details the difficulties he has with personal care, domestic duties and home maintenance. He says he received assistance from his ex-partner, his mother, friends, his children on a voluntary basis but says in the future he will need to engage commercial assistance.
The claimant details the care that he used to give his children and that he can no longer perform. He said his mother provided this care that he could no longer perform.
Mr Parany sets out in detail his claims for equipment and aids.
In a supplementary statement he says:
(a)he was very physically active before the accident, committed to personal training and fitness;
(b)he said he regularly suffered aches and pains in various parts of his body due to overuse of muscles etc and he would regularly have massage and treatment;
(c)he said he never had time off work and the treatment he had from Brad Hynard was preventative, and

(d)he confirmed he made no claim for any injury to his right knee.

Mr Parany’s oral evidence

The claimant’s two statements were admitted into evidence with Mr Wilson asking no questions.
Ms Allan took the claimant to paragraphs 8 – 13 of his statement and confirmed the reported history of two previous fractures, depression and asthma. The claimant agreed that he had seen Brad Hynard for six chiropractic sessions in 2008, seven in 2009, four in 2010 and five before his accident. He agreed that he had attended for treatment to his lower back, right hip, right shoulder and neck before the car accident. Ms Allan asked him why he did not mention this in his statement. Mr Parany said he did not think it was a medical matter and therefore of any relevance to his claim. He said he was an athlete and like any athlete he was keen to make sure he was feeling his best and he attended the chiropractor for ‘maintenance’.
While he agreed that he had suffered symptoms in the same areas that he injured in the car accident he said they were minor. Ms Allan asked him why he disclosed the fractures when he was seven and ten and had fully recovered and Mr Parany said he disclosed these because he was asked for a medical history. He said attending the chiropractor was not a medical matter and not because he had sustained any medical injury.
The claimant was taken to Dr Garvan’s report of 16 July 2012 where he recorded ‘no history of musculoskeletal symptoms’. Mr Parany said he cannot remember the exact words of the question Dr Garvan asked him. Ms Allan asked him whether he thought he should tell Dr Garvan about the symptoms in his neck, back, shoulder and hip and he then said he was asked for a medical history and repeated that he was of the view his previous issues were not medical. He was taken to the report of Dr Ng and asked whether he told him about the symptoms to his neck, back and so on and he agreed he had not, but said he did not tell Dr Ng because he had only asked general questions.
Ms Allan took the claimant to the report of Dr Barold and the claimant’s history of
having a habit of undertaking massage and maintenance but that he had not had any for quite a period before the accident. She asked him if he told Dr Barold that and the claimant said he did not remember. Ms Allen asked him whether that history was correct and Mr Parany said ‘that’s what he has written’ and when challenged with that being untrue he said he could not recall.
Ms Allan took him to the history recorded by Dr Barold, ‘more specifically he denied’ any previous neck, right shoulder, right hip or groin symptoms before the accident and Ms Allan put it to Mr Parany that that was not true. Mr Parany said that was what the doctor had recorded. Ms Allan put it to him that the record must have been based on what he reported, and he said he ‘could not recall’ what he was asked or what he said.
The claimant was asked about the hospital notes and the record of left sided neck pain after the accident. Mr Parany said he had no recollection of what he said to the hospital and no good recall of everything over the last 10 years.
The claimant was asked whether he returned to work after two weeks. He did not agree but did agree that his memory in 2012 would have been better and clearer than now. He agreed with the history recorded by Dr Bodel that he had minimal time off work and the occasional day off. He also agreed with the history recorded by
Dr Mitchell in 2017 that he was able to resume normal work and had the occasional day off. The claimant said yes but that his role was modified and changed from doing the practical work to more lecturing and not as much physical demonstration. He agreed he was in the same position and still a teacher and paid the same.
Mr Parany said he told TAFE about the motor vehicle accident and that they moved him and changed his duties and classes because he could not do the message therapy demonstrations. He was asked whether he was aware of anything in the TAFE documents that confirmed he had reported the car accident and he said he did not know. Mr Parany was adamant he had told the head teacher and that it was well known around the TAFE that he had a car accident and that he was injured.
The claimant was asked about paragraph 27 of his statement where he said Dr Pavel and then Dr Giri advised him to take pain relief including Celebrex and Panadeine Forte. He confirmed this history. Ms Allan asked him about the PBS records which showed that there were no scripts filled for pain killers in 2011 and the reason he did not take them at that time was that his pain was not that troubling. Mr Parany said he did not recall what state he was in at the time.
He confirmed he did not see a doctor throughout 2012 but that he was having treatment from Brad Hynard and he had 22 attendances in 2012.
The claimant was taken to the reports of Terry Stewart the Osteopath and asked about his opinion on 17 April 2012 that the claimant was extremely close to recovery. He did not agree with that but also stated he did not remember how he felt in 2012. He reluctantly agreed that his symptoms had improved ‘somewhat’.
The claimant could not explain why the PBS records did not indicate he filled any prescription for pain killers until 2014 when he had said to Drs Garvan, Ng and Bodel in 2012 and 2013 that he had been taking Panadeine Forte which is a prescription medication. The claimant said he could have been taking over the counter medication at that time.
Mr Parany agreed that he attended the chiropractor five times in 2013 and 2014 which
was roughly the same number as before the accident. He was asked to agree that whatever problems he had after the motor vehicle accident had gone back to the same level they were before the accident and he said he could not recall.
The claimant was asked about the referral from Dr Bashir to Roz Hamilton for a mental health plan in 2012 and while he remembered the treatment, he did not remember why he was referred. He agreed he had been stressed about funding cuts at work.
Mr Parany also agreed that he had a history of anxiety and depression and had been prescribed anti-depressants before the accident. He agreed that at the first session with Roz Hamilton he mentioned the car accident and his issues with TAFE. He did not comment when it was put to him that thereafter all the notes mention is problems with his ex-partner, his ex-best friend and the access issues in terms of his child.
He was asked to agree with the suggestion that his referral to the Wollongong Mental Health unit after the accident had nothing to do with the car accident and he denied this. He said the accident took away a lot of things and ‘robbed me of the ability to exercise and so I couldn’t keep my mental health in balance’. He said his ‘outlet had been taken away’ from him. He was taken to the history in respect of that admission concerning ‘bad news’ about his ex-partner and best friend and said this could have contributed to his mental state. When asked why there was no mention after the first counselling session of the car accident, he replied that these sessions were only for one hour and time was limited.
The claimant was taken to the May 2014 incident involving an altercation with the police. He confirmed he was pushed through a Colourbond fence. He said he attended Wollongong Hospital in the presence of police. He did not remember having a CT scan or scans of his right hand. He agreed that he attended his GP52 two days later and complained of multiple issues arising from that assault including ‘bruising right hip’. The claimant did not recall but agreed there must have been an injury to his right hip if there had been a visible bruise in that area. The claimant was taken to the PBS records which suggested he presented a script for Panadeine Forte for the first time in July 2014 and it was put to him this was because of the injuries caused in that altercation. Mr Parany said the police stirred up the injuries with his shoulder. He said the shoulder pain was always there, but it was aggravated by the police.
He was asked about whether he recalled receiving a reprimand from his employer at the end of 2014. He said he did not know what it was, but he remembered having to put in a submission to TAFE to explain or ‘show cause’ why he had got himself into trouble and he said his submission was accepted.
He was asked whether that caused tension with his TAFE boss and he said no the tensions ‘went way back’. He was asked if that was before the accident, but he could not recall exactly when it started.
He was asked about what he said to Dr Rosenthal about his right inguinal hernia in 2014 and he agreed he had time off work for that as it was ‘major surgery’.
Mr Parany was asked about his workers compensation claim and agreed that the workers compensation insurer had organised a psychological assessment after receipt of the claim in early July 2015. He was asked about the reference in that assessment to ‘three surgeries’ and while he remembered the hernia he had to be prompted about the vasectomy and did not mention the rectal fistula. He was asked why, in all the

detail about the stressors in his life he did not once mention the motor vehicle accident. He said words to the effect, ‘my take on this is it was a workers compensation matter not the motor accident’.

He was asked when his Family Court proceedings ended, and he did not recall. He could not recall when the final orders were made and thought it might have been 2014 or 2015 but said there were a number of appeals and additional steps to be taken. He agreed he stopped work in March 2016 and that he had told Roz Hamilton on 23 March 2016 that the family law hearing had taken place. When pressed, he again said he could not recall the exact date of the final step in the proceedings noting he had a costs order made against him.
He was taken to paragraph 191 of his statement where he had said the reason he left TAFE was because of his disabilities and injuries from the car accident. He did accept that there were significant stressors in his life and there was not one thing, but he said the car accident changed his life and what he used to be able to do.
The claimant agreed he had a left elbow problem in 2016 and that he did not injure his left elbow in the accident.
He confirmed that he was in receipt of Centrelink benefits because he had to maintain some income and that he also did his dry needling. He explained this involves inserting fine needling into the muscle and is nothing to do with Chinese or Asian philosophy which is behind acupuncture.
The claimant was unsure about his business arrangements and said when he first started the business it was from a small office in Corrimal and he then moved the business into a room in the back of the house but then he thought it was the other way around.
He denied doing any physical work on the building of the granny flat. He said he operates a B & B from that granny flat but does not know how much he earns from it but he has not declared that income to the tax office as he does not earn enough although he thought his year he will be putting it in his tax return because he thinks he will have earned enough. He said PayPal would have records.
He was asked where he obtained the money to fund the renovation work estimated at
$150,000 to the local council. He thought he had got a personal loan for that.
He was questioned about the Endeavour College documents and said that he stopped that course because it was too stressful and that they would not recognise his prior qualifications and experience. He said the process was just too onerous. He was taken to the email he had sent saying ‘I run a very successful practice’. Mr Parany said he was having a ‘dig’ at them but would not admit this was untruthful.
When asked about how much he was earning from his practice he said, ‘very little’ and said he had not lodged a tax return on the advice of his accountant because he did not earn enough. He said he had disclosed his income to Centrelink but when asked why Centrelink only had a record of income since 2020 (and not since the commencement of the business in 2016) he said he was not required to disclose it because he was allowed to earn up to a certain threshold. He did not say what that level was or how he knew whether he had reached that threshold or not.

The claimant admitted he received cash payments, that his appointments were made

through a program called Clinico and reluctantly he said that he keeps a rudimentary ledger, but he only sees two clients a week and has no BAS or formal documentation. He was asked whether he was earning more than was disclosed in his tax returns and he said he did not know.

He was asked if he could go back to work full time and he said no. He said he could not work in any other role and could not for example be a gym manager because he did not have the qualifications.
Mr Wilson asked the claimant about what permissions he needed to commence a business at home, and he said he did not need any because he had rooms already established.
The claimant was asked about his business before he worked at TAFE and said he had closed this because he was working part time in the business and part time at TAFE and he wanted to establish his career in TAFE. He said it would not be difficult to work full time and teach part time. He said for example it would not have been an issue having a newborn or children in the house while he was undertaking the treatments at home.
He explained that he had to keep working to maintain his currency as a teacher. Because he was teaching massage therapy, he had to do some massage therapy work.
The claimant was asked by Mr Wilson some further questions about the PBS records. The claimant did not recall anything about getting his prescriptions filled. He said he was not in the habit of going to doctors. He said he went to the chiropractor or sought other allied health treatments on the basis of what he felt he needed, and that seeking relief was not something he considered a doctor could provide.
The claimant said his pains were always there and that they waxed and waned and that there were peaks and troughs but that they were always there.
The claimant was asked some questions by Mr Wilson about the tensions with the head teacher and said it derived from a couple of different things. He said it started when he divorced his first wife, and he missed a day of classes and the head teacher wrote that down as an unauthorised day off which he said interrupted his long service leave accrual for the eight previous years. He said he had issues with his head teacher whose wife was employed as a casual teacher and she was allocated more teaching hours.
He said that the personal attacks and issues arose before the accident, but he did not know when. He said the bullying was multifactorial. Mr Parany said he informed TAFE of the car accident and his injuries and they took advantage of that by giving him bad and hard classes which he did not have as much familiarity with. Mr Parany also explained about a new computer system TAFE installed that was incredibly difficult and he had lost data. He said he was being micromanaged and constantly monitored.
The claimant said his hours of work at TAFE were 35 per week but they were not 9 – 5 sometimes 3.00pm until 8.00pm. He said school holidays were the same as TAFE holidays.
I asked him about his chronic fatigue syndrome diagnosis referred to in Dr Vickery’s report. He said he was diagnosed 20 or 25 years ago. I asked if it was due to excess

body building and he said ‘that what he thought’ whereas Mr Parany thought it was due to a tick bite.

I asked him what sort of weights he lifted before the accident and he said 130 – 140kgs and they were dead weights and that he attended the gym four times a week. I asked about the comments made by many of the doctors that he was well muscled. He said that was a hangover from when he was 13 or 14 as he had been into body building since then. He says he goes to the gym a couple of times a week as part of his ‘rehabilitation’ and does light weights 10 – 15kgs and works on his balance.
He said he had not returned to surfing or boxing as it was too painful.

IS THE CLAIMANT’S EVIDENCE RELIABLE?

Mr Wilson said that the claimant should be accepted as honest and truthful and that his symptoms have been consistent since the date of the accident.
Ms Allan submitted that the claimant’s evidence should be treated carefully and that I should look to the documentary evidence for corroboration.
The claimant could not remember many of the details surrounding his complaints and treatment which is not surprising as the accident was 10 years ago. For example, he could not remember what he told the hospital on the day of the accident, he could not remember how he was feeling and could not recall what he discussed with the medico- legal doctors in 2012 and 2013. He did not remember how he felt at certain and particular times over the last 10 years in particular in April 2012 when Terry Stewart said he was almost completely recovered.
Mr Parany did not disclose the pre-accident 16-year history of chiropractic appointments in the claim form or in his first statement or to most of the doctors who had examined him for the purposes of this case. Mr Parany explained firstly that he was asked about ‘medical’ matters and ‘medical conditions’ and that in his opinion he did not have a medical condition. Secondly, he explained that this treatment was maintenance for an athlete who was lifting weights (130 - 140 kgs in dead weights at times) and was cycling, boxing and running. He said the chiropractic treatments were undertaken due to his involvement in sports and his desire to maintain his fitness.
I note Dr Garvan had a history of no major medical problems before the accident and Dr Ng had a history of good general health before the accident which may be correct. Dr Ashwell had a history of occasional muscle soreness.
I note that Dr Barold took a history from the claimant of him having ‘occasional’ treatment and that he had not required treatment for quite a period before the accident. This is not supported by the records which suggest five treatments in 2011 before the accident Dr Barold records a specific denial of any ‘specific injury or symptoms to the neck, right shoulder, right hip or groin before the accident’. My review of the records from Brad Hynard suggests there are many entries before the accident indicating issues with the claimant’s body after lifting or working incidents including neck, shoulders, hip and the sacroiliac area. Medical Assessor Gray also records a history from the claimant of no past history of injury or symptoms in the same parts of his body he says he injured in this accident.
Ms Lucas the occupational therapist had a history from the claimant of occasional back pain but no treatment before the accident.

Mr Parany also did not disclose the full extent of his psychological history to anyone. In particular, he did not disclose an admission to hospital in the 1990s and that he was taking antidepressants regularly since 2004. Dr Barold records in his report a history of a ‘bout’ of anxiety and depression in 2000 treated with counselling and medication but no need for this for ‘several years’ before the accident. This is not born out by the PBS evidence and the claimant’s GP’s notes of the day of the accident.
In my view, Mr Parany attempted to make more of the accident and minimise the effect of the other life events relevant to his mental health issues. The records of
Ms Hamilton his treating psychologist disclose one possibly two mentions of the car accident but considerably more complaints about his other life stressors including his former wife’s relationship with his former best friend, the loss of his access rights to his daughter and the bullying going on at work. I do not accept the claimant’s reasons for this as being a lack of time on the part of Ms Hamilton and I note there are no reports from Ms Hamilton. It is also significant, in my view, that there was no mention of the motor vehicle accident in the TAFE records or in the Allianz workers compensation records. Mr Parany seemed to suggest the loss of his physical abilities due to his accident meant he had no outlet for his emotions and therefore was unable to deal with these matters. There is of course no medical evidence about this.
Mr Parany appears to have exaggerated his use of Panadeine Forte which he has reported to Dr Garvan, Dr Bodel and Dr Ng that he was taking regularly since the accident. However according to his PBS records, it was not until 2014 that he first filled a script for that medication.
I accept the insurer’s submissions about the unreliability of the claimant’s evidence due to:
(a)Mr Parany’s lack of recall over the last 10 years;
(b)his failure to disclose his full physical and mental state before the accident to the doctors that have examined him;
(c)his exaggeration, and
(d)the opinions of Dr Vickery.
I consider his evidence to be unreliable and I will look to the documentary evidence for support of his injuries, losses and damage.

FINDINGS AS TO INJURY

Submissions

Mr Wilson for the claimant submitted that the motor accident involved a significant impact where the claimant was jolted forward and his seat broke. He said while a recovery was expected, the claimant has not recovered and has had consistent pain and symptoms in his neck, back, right shoulder, right hip and groin. Mr Wilson noted that Drs Bodel, Garvan, Ng and Barold have all diagnosed soft tissue injuries to the various parts of his body the claimant says was injured in the accident.
The insurer conceded that the claimant sustained soft tissue injuries but submits that by the end of 2012 the claimant had returned to boxing and returned to work. The insurer noted that the claimant had 22 attendances on the chiropractor in 2012 and then after that the level of attendance was no different to that before the accident.

What physical injuries were caused by the accident?

There does not appear to be any doubt from the treatment records that the claimant injured his neck and right hip / groin / sacroiliac area in the accident.
The claimant attended Wollongong Hospital on the day of the accident where there is a record of left shoulder pain. Subsequently the claimant has consistently complained of right shoulder pain. I am prepared to accept that the entry in the hospital notes may be an error. Bearing in mind the claimant was a seat-belt wearing driver and due to the placement of the seat belt over his right shoulder, it is more likely that Mr Parany injured his right rather than his left shoulder.
The Wollongong Hospital notes do not record any complaint of back pain. There is no mention in the general practitioner notes of any complaints of back pain until 23 December 2011. The lower back was not mentioned in Dr Patel’s medical certificate dated 12 February 2012. While the claimant attended Brad Hynard for lower back pain on 8 July 2011, there is no specific mention of lower back pain until 10 February 2012 when the claimant had returned to the gym. However, I note that Dr Terry Stewart’s first report does mention low back pain and symptoms although the second report does not. I am prepared to accept the claimant did sustain an injury to his lower back in the accident.
I note the claimant told several of the medico-legal practitioners of an incident of exacerbation of his back pain at Christmas-time 2011 that resulted in him using a ‘Zimmer’ frame due to an inability to walk. There is no reference in any of the treating doctor’s records about this (other than a general reference in Dr Giri’s notes on 23 December 2011 to a flare up of neck, right hip, low back and right shoulder symptoms).
Although Brad Hynard originally provided evidence in relation to the claimant’s business operations, that statement was withdrawn. I note Mr Hynard has not provided any reports or evidence as to the claimant’s treatment since 1995 and his allied health understanding of the accident-related injuries and his treatment and in particular the differentiation between Mr Parany’s pre- and post-accident state. Mr Hynard in my view would be best placed to explain the claimant’s physical injuries, disabilities and impairments.
It is also telling that aside from Mr Stewart (who treated the claimant to a nearly full recovery) there are no other reports from any of the claimant’s treating doctors when causation is clearly in issue. While Mr Wilson submitted that the claimant came from an allied health background and therefore is not one to rely on doctors, the claimant has attended upon at least four medical practices since the accident.
The claimant does not rely on reports from any psychiatrist or psychologist to support his personal view that any mental health issues arising from work or his family situation were made worse by his inability to cope with the physical injuries sustained by the accident. While the claimant does have a degree in psychology his evidence about this, in my view, cannot be considered without independent medical or allied health corroboration and there is none.
Finally, in relation to the state of the claimant’s medico legal evidence I note that:
(a)the claimant does not rely on any medical evidence more recent than 2018;
(b)none of the claimant’s medico-legal experts have the full records from the claimant’s various general practitioners, his psychologist and his chiropractor;
(c)Dr Barold and Ms Lucas do not appear to have the insurer’s medico-legal reports and Dr Bodel appears only to have had Dr Garvan’s report, and
(d)the claimant has not obtained new or refresher evidence to counter the opinions of Drs Vickery and Ashwell.
The reports of the claimant’s experts suffer from not having the full and correct history to enable them to engage with the issue of causation and address it. I am not greatly assisted by any of the claimant’s experts.
The Medical Assessors did not have the bulk of the documentation (in particular the records of Brad Hynard) and therefore they have been unable to fully engage with the issue of causation. Therefore, their determinations do not greatly assist me other than in their findings in relation to the matters certified.
The only reports which do engage fully with the issue of causation and appear to have all of the relevant documentation are the reports of the insurer’s experts, Dr Ashwell and Dr Vickery.
In my view the opinions of Drs Ashwell and Vickery should be preferred over all the other medico-legal evidence in this matter.
Dr Ashwell says, ‘I therefore believe the subject motor vehicle accident of 30 September 2011 would have caused no more than a minor aggravation of the areas listed’. He still attributed a 2% whole person impairment to a right shoulder injury but expressed some doubt as to this.
Dr Vickery diagnoses Somatic Symptom Disorder or a persistent depressive disorder and says it ‘is not due to a motor vehicle accident-related injury. It is an injury involving multiple psychosocial biomedical factors …’.
I am therefore satisfied that Mr Parany sustained soft tissue injuries to his neck and right hip and groin and right shoulder. I am satisfied that these soft tissue injuries aggravated pre-existing conditions reflected in a 15 year history of treatment by his chiropractor.
I do not accept that he sustained any psychological or psychiatric injury as a result of the accident.
I note the reports of Dr Terry Stewart and the claimant’s near full recovery in April 2012. The claimant returned to full time work after the accident for over four years. The hospital and chiropractor’s records demonstrate that the claimant returned to boxing and some of his other sporting pursuits. There is also evidence (from the histories given to Ms Lucas and Dr Mitchell) that Mr Parany had returned to his domestic duties within two weeks of the accident. While it is somewhat imprecise, I accept the insurer’s submission made at the assessment conference.
I am not satisfied that any of the claimant’s physical injuries sustained in this accident were causing any continued problems beyond the end of 2012.Did the claimant sustain any psychological or psychiatric injuries in the accident?
In terms of Mr Parany’s psychological injury, I note he became involved in a four year ‘battle’ for custody of his child Sienna which resulted in final orders denying him any access. The allied health and medical records are dominated during the period 2013 to 2015 by issues associated with the custody dispute. During this period the claimant had a four-day admission to a mental health unit and an altercation with the police. I do not accept (on the basis of the absence of any expert evidence to support it) that any injury or illness related to that process or the outcome was a result of the claimant’s alleged inability to cope due to the accident.
I also note that before the accident, the claimant reported bullying by his head teacher which he says escalated after the accident and which he says he was unable to deal with due to his lack of a physical outlet because of his injuries. I do not accept this submission on the basis of the absence of any expert evidence to support it. I also note that in the extensive records produced by Allianz and TAFE and in particular the report of Ms Barratt at the time the workers compensation claim was made, there is mention of various physical maladies but no mention at all of the motor accident.
It therefore follows that while the accident must have been frightening for the claimant (particularly due to the speed of the crash and the presence of his children in the car) it has not resulted in any psychological or psychiatric injury.

Other incidents and events

The claimant conceded he had three significant operations during 2014 for which he had significant sick leave. These are unrelated to the accident.
In May 2014 the claimant had an altercation with the police which led to a head injury and stitches.
The claimant developed left epicondylitis after the accident which has not been claimed as related to the accident.
The claimant has, according to his most recent treating medical evidence developed bilateral hip problems due to arthritis and not the accident.
Finally, the claimant has developed a psychiatric disorder unrelated to the car accident but related to his family court proceedings and a workplace injury.
In my view when the totality of the medical evidence is considered the claimant’s injuries sustained in the motor vehicle accident of 30 September 2011 were soft tissue in nature and were no longer playing a part in the claimant’s presentation by the end of 2012.

WHAT DAMAGES SHOULD BE ASSESSED?

Past and future loss of earnings and loss of earning capacity

The claimant was, at the time of the accident a full-time TAFE lecturer working 35 hours a week. Before that he had, for some years, been a part time lecturer whilst also running a business called ‘Myokinetics’53.
Mr Parany says in his submissions, that as a result of the accident, he requested and was granted a change in his teaching load so that he was doing less physical work and more classroom work. At the assessment conference he said this was forced upon him and was part of his claim about bullying.
Mr Parany said in his evidence that at the time of the accident he was in the process of starting up his own business which would enable him to maintain his currency as a massage therapist and continue to teach at TAFE. He was intending to run the business for two hours in the evening, four hours each weekend and four hours per fortnight on each rostered day off and that he would charge $80 an hour. The claimant says that because of his injuries he was unable to pursue this business54.
The claimant ceased work at TAFE in March 2016 which he attributes to his inability to undertake his currency in massage therapy and he has been in receipt of Centrelink benefits since then.
The claimant gave evidence about his dry-needling business (which is not as physical as massage therapy) but says he only treats a few clients and does not earn enough to lodge a tax return.
The insurer submits the claimant continued to work for four and a half years after the accident at TAFE earning $20,000 a year more in his last full year at TAFE compared to the financial year of the accident. The insurer also submitted that despite multiple requests the claimant provided no details of a business plan, no booking details and no payment records concerning his dry-needling business.

The case law55 suggests that to be awarded damages for loss of earnings or loss of earning capacity I must be satisfied of two things:
(a)that the claimant has (for the past) and / or will have (for the future) an impairment to his ability to earn, and
(b)that this impairment has been or will be productive of financial loss.
I am satisfied, based on my findings as to injury, that the claimant had an impairment to his ability to earn from the date of the accident to the end of 2012. This is supported by Dr Patel’s certificate of fitness which imposed a lifting restriction on the claimant. This restriction would likely impede the claimant’s ability to undertake massages.
However, I am not satisfied that this impairment has resulted in any financial loss to the claimant. There is, nothing in the TAFE records to suggest the claimant told his employer about his car accident and if he did there is no suggestion that any change to his classes resulted in a reduction in his earnings. I note there is no written record of a request for a variation in his duties contained within the TAFE records.
While the claimant has attached to his statement legislative provisions suggesting the regulation of educators such as TAFE, there is no evidence from TAFE concerning the requirement for ‘currency’ or that ongoing clinical work was a requirement of his continued employment at the time of the accident. There is no documentary evidence from the claimant supporting his oral evidence on this point. In my view, it would be unlikely that the claimant would not have been sent a letter or an email from his employer setting out the requirement for ‘currency’. There is however material in the

TAFE bundle that suggests the claimant would have been required to obtain permission for ‘secondary employment’. In my view it is speculative that, had this accident not occurred, the claimant would have commenced a business before the end of 2012.

There is evidence that the claimant had time off work after the accident and was paid sick leave. As he has left his employment with TAFE it would appear he has no entitlement to have that sick leave credited and therefore no actual loss of earnings.
Finally, I note that in the financial year immediately before the accident the claimant was earning $61,437. In the year of the accident, he earned $74,976 and in the year after that $87,746. In the two years after that he earned an income over $90,000.56
It therefore follows that I will allow nothing as I am not satisfied that an impairment to the claimant’s ability to earn income after the accident has been productive of economic loss.
As I have accepted the evidence of Drs Ashwell and Vickery and have accepted the submission of the insurer that after the end of 2012 the claimant was no longer experiencing the after-effects of the accident, I am not satisfied that the claimant’s accident-related injuries were causing any impairment to his ability to earn after the end of 2012. Throughout 2013, 2014 and 2015 the claimant had a number of other physical ailments (including three surgeries), the focus and stress of his family court proceedings and his ongoing issues at work. While he may have had time off work during this period and leading up to his departure from TAFE in March 2016 I am not satisfied that these absences would be compensable as they do not, in my view relate to the accident.
The claimant has demonstrated that from a time soon after the accident to March 2016 he had the capacity to work and earn full time. Drs Bodel and Barold considered he had capacity to work full time albeit with minor restrictions. Mr Parany left his employment with TAFE for reasons unrelated to the accident. I do not accept that the claimant has a total loss of earning capacity since March 2016 or that he has any accident-related ongoing impairment to his earning capacity.
It therefore follows that I will not award any damages for future loss of earning capacity.

Treatment expenses

The claimant makes a claim for the sum of $19,009.20 made up of:
(a)$1,327.25 expenses paid by Mr Parany;
(b)$6,437.05 Medicare expenses, and
(c)$11,244.90 Payments made by the insurer.
I refer to my findings as to injury and that the claimant’s accident-related physical injuries were, on the basis of Dr Ashwell’s informed opinion soft tissue in nature and aggravations of an underlying condition and that the motor accident had little to do with

Mr Parany’s presentation after the end of 2012.
The claimant has provided a detailed and helpful schedule of out of pocket expenses:
(a)in the schedule I cannot identify any payments made by the claimant himself before the end of 2012;
(b)the Medicare payments made before the end of 2012 total, by my calculation, $369.40;
(c)the list of expenses paid by the insurer pursuant to the duty imposed on it by s 83 of the MAC Act totals $11,572.96 and the amount claimed by the claimant $11,802.32. There is no explanation for the difference between the two. In order to ensure the claimant is not out of pocket I will work from the higher of the two amounts, and
(d)the list of expenses incurred and paid by the insurer includes:
(i)payments made after the end of 2012. However, I note the insurer concedes the amount paid which Ms Allan says was paid before the third-party records were obtained from Brad Hynard, TAFE, Allianz and others, and
(ii)three non-attendance fees in respect of appointments at
$577.50 each (a total of $1,732.50). In my view these are not treatment expenses but are connected with the insurer’s costs and which may need to be credited as part of the assessment of costs process.
In addition to treatment expenses the claimant also seeks the cost of travel to obtain treatment. He claims at the rate of two trips or 28 kilometres per week which at the Australian Tax Office rate of $0.63 per kilometres suggests a weekly cost of $17.64. This has not been contested by the insurer and I propose to allow that sum for the 65 weeks from the date of the accident to the end of 2021. My calculation suggests the sum which I will round up to $1,150.
In summary then I will allow the following for past treatment and out of pocket expenses:

Medicare $369.40

Claimed s 83 payments

$10,069.82 ($11,802.32 less $1,732.50)

Travel for treatment

$1,150.00

Total

$11,589.22

I will round the sum up to the sum of $12,000 to take into account over the counter medication taken by the claimant, additional travel and other possible expenses noting the somewhat imprecise cut-off date at the end of 2012.
In terms of the future, I note the opinions of Drs Vickery and Ashwell that the claimant has no need for psychological treatment as a result of the accident and no need for future treatment or surgery. On that basis I do not propose to allow any damages for future treatment expenses.

Past and future domestic, home maintenance, gardening assistance and child-care

The issue of domestic assistance has been the subject of a decision from the Medical Assessment Service (MAS) as it then was. The background to this dispute appears to be a claim by Mr Parany in his s 85A particulars for ‘domestic assistance’. The insurer did not concede this and referred the dispute to MAS. No challenge to the jurisdiction of MAS was made and a certificate was issued which the claimant now seeks to challenge. Bearing in mind my findings as to injury, it is unnecessary for me to consider the medical assessment determination any further.
It is notable that the claimant withdrew a number of statements from friends and family in respect of his claim for domestic assistance, but these were withdrawn and are not relied on. There is therefore no evidence other than the claimant’s own evidence as to the level of past gratuitous assistance which may have been provided in the past.
The claim for past voluntary domestic and home maintenance and gardening assistance as set out in the submissions is made from 28 January 2016 to date. As
I have preferred the opinions of Drs Ashwell and Vickery and the argument put forward by the insurer, I would not have allowed any damages after 2012 in any event.
In terms of the future there is a claim for commercial assistance, increased costs of travel, car cleaning and podiatry in excess of $250,000 along with future commercial handyman assistance in the sum of nearly $190,000. Finally, there is a claim for future equipment.
Again, noting my findings as to injury, it follows that there will be no damages awarded for these future losses.
Finally, the claimant makes a claim under section 15B of the Civil Liability Act for the cost of care provided by others to his partner’s three children because Mr Parany was, because of his injuries unable to provide that care. There is no evidence to support this claim from any of the people who provided that care. During the time claimed (30 September 2011 to 15 June 2012) the claimant was working full time and was not so incapacitated in my view that he could not provide care and assistance to his children aged 8, 11 and 14. I will not allow any damages under this head.

CONCLUSION ON DAMAGES

I assess the claim on the findings made above in the sum of $12,000.
The claimant’s economic losses are to be reduced by and the insurer is to have credit (under section 130 of the MAC Act) for the payments made by the insurer under section 83 being the sum of $9,840.46 ($11,572.96 paid by the insurer less the non- attendance fees).
Whether the sum the claimant receives is to be reduced on account of the non- attendance fees ($1,732.50) is a matter for the parties to determine according to for example, the reasons for the non-attendance, the claimant’s responsibility and the terms of any requirement for notification about non-attendance.

ASSESSMENT OF COSTS

Submissions on costs

The parties agree that the applicable costs regime is that provided in the Motor Accident Compensation Regulation 2020 (the Regulation). This provides an indexed system of costs based on a monetary unit which is (as of 1 October 2021) the sum of
$103.02. I also note that this Regulation does not distinguish between costs and disbursements incurred before and after 1 April 2015 as was the case under the previous (2015) version of the regulation.
The insurer does not dispute that the claimant is entitled to some costs.
The insurer provided submissions dated 15 October 202157 which refer to:
(a)an offer made on 12 October 2016 under s 89C of the MAC Act in the sum of $45,000 plus costs of $5,000, and
(b)an offer made on 26 October 2021 in the sum of $50,000 plus costs.
The insurer submits that as its offers exceed the amount of damages assessment the claimant should be allowed no professional costs after October 2016 or 2020.
The insurer also disputes:
(a)the claimed country loading noting that the hearing occurred via audio- visual means;
(b)the later report of Dr Barold as it was obtained after the 2016 offer, and
(c)the report fee from Maria Lucas (the occupational therapist) is not agreed as it was obtained after the insurer’s offer.
The claimant seeks costs in accordance with his original submissions58 and supplementary submissions.
The original submissions included a schedule of claimed costs including stages 2, 3 and 4, four conferences, two medical disputes, the assessment conference and a country loading. In terms of disbursements the medico-legal reports of Drs Bodel and Barold were claimed, and unregulated costs for the report of Ms Lucas and various third parties.
The supplementary submissions argue that the insurer’s offer of 12 October 2016 does not use the phrase ‘without prejudice save as to costs’ and there is no time frame for the offer to be accepted. The claimant’s solicitor says therefore that the offer does not comply with the Calderbank v Calderbank59 principles.
The claimant’s solicitor says that Mr Parany has been successful and is entitled to all
costs and disbursements including those incurred after the date of the insurer’s offers.

Consideration of the costs issues

The insurer’s offer of 12 October 2016 (attached to the insurer’s submissions) includes the words ‘without prejudice’ but also refers to a section 89A settlement conference and says the offer is a section 89C offer. Sections 89A and 89C are found in Division 1A of the MAC Act and were two of the steps required to take place before a claim could be referred for assessment.
A section 89C offer is one made within 14 days of a section 89A settlement conference and is required to include a schedule of damages. The insurer’s offer included a schedule of damages and deductions but was not made 14 days after the conference but was made 10 months after the settlement conference in December 2015. I am not satisfied the offer is therefore a valid offer made under section 89C.
Section 94A(3) of the MAC Act provides that the Commission ‘may have regard to the amount of any offer of settlement’ when considering the assessment of costs. Whether it is an offer made pursuant to section 82, section 89A, an ‘offer of compromise’ or an offer made at any stage of the claim does not, in my view matter for the purposes of section 94A(3). I am not therefore of the view that it is necessary to consider whether or not the offer of 12 October 2016 complies with the principles of the Calderbank case or whether the purported section 89C offer was an offer that complies with that section. What is relevant is that two offers were made and neither offer was accepted and the claim has been assessed at a sum less than either offer. Had either of the offers been accepted then there would have been a saving in costs and disbursements to the parties and to the scheme.
The assessment of costs is generally a discretionary matter. While a strict application of section 94A(3) might suggest I should allow no sum for costs and disbursements incurred after the dates of the offers there are three factors which in my view operate against this:
(a)the insurer’s first offer was made in October 2016. In that year and shortly thereafter the records suggest the claimant was in a very stressed state due to the culmination of his Family Court proceedings, the matters involving his workplace bullying claim and the state of his finances;
(b)the preparation of this claim for assessment was not finalised by the insurer until shortly before the assessment conference. For example, the records of Brad Hynard, the updated reports of Drs Ashwell and Vickery and the TAFE documents which were critical to my findings on injury were not obtained and served until 2021, and
(c)while the claim was referred for assessment by the insurer and not the claimant it was referred 9.5 years after the accident. Both the claimant and the insurer could have referred the claim for assessment well before May 2021 which could have reduced the costs and disbursements for both parties and therefore the cost to the scheme.

Costs allowed

I will therefore allow:
(a)professional costs:
(i)stages 2, 3 and 4 (no claim is made for stage 5);
(ii)two conferences - the regulation permits costs of conferences ‘directly related to the assessment of the claim’. The claim was referred for assessment by the insurer on 24 May 2021. It is, in my view, reasonable to permit one conference at around the time of lodgement to settle the statement and another shortly before the hearing to prepare for the hearing;
(iii)there were two medical assessments (whole person impairment and treatment and care), and
(iv)the claims assessment (three hours).
I will not allow the country loading. The claimant and his solicitors are in the same area and the assessment conference was held by video-conference with Mr Wilson and Ms Curran at their own chambers / offices, and
(b)disbursements:
(i)all of the reports claimed (Drs Barold and Bodel) including those incurred after the insurer’s offers;
(ii)the occupational therapist’s report which is unregulated, and which was reasonable to obtain at the time it was obtained, and
(iii)the third-party documents (including police and medical practices).
Photocopying cannot be recovered. Photocopying is allowed as a ‘medico- legal expense’ which can only be claimed by medical practitioners under section 150 of the MAC Act and Schedule 2, item 9 of the Regulation.
A calculation sheet assessing costs and reflecting the above will be uploaded to the portal as a separate document.

Member Cassidy

Motor Accidents Division Personal Injury Commission

Head of damage claimed	Claimant’s submissions	Insurer’s submissions
Past loss of earnings Superannuation	$512,562.29 $48,693.42	Nil
Future loss of earning capacity Superannuation	$638,081.66 $70,188.98	Nil
Past treatment expenses	$19,009.20	$11,572.96
Future treatment expenses Occupational therapy Future equipment Future podiatry	$61,774.67 $1,020.00 $16,913.70 $7,452.47	Nil
Travel to access treatment	$10,651.07	Nil
Past care (gratuitous)	$97,498.87	Nil
Future care (commercial) Car cleaning and polishing Handyman	$181,854.51 $45,316.86 $189,388.80	Nil
Future travel assistance	$21,947.40	Nil
Past s 15B Civil Liability Act	$7,800.88	Nil

Year	Number of treatments
2007	4
2008	6
2009	7
2010	4
2011 before the accident	5
2011 after the accident	6
2012	22
2013	5
2014	3
2015	5
2016	5
2017	6
2018	8
2019	9
2020	3

Medicare	$369.40
Claimed s 83 payments	$10,069.82 ($11,802.32 less $1,732.50)
Travel for treatment	$1,150.00
Total	$11,589.22

[2021] NSWPIC 540

26 October 2021