Salmon v AAI Ltd t/as GIO

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Salmon v AAI Ltd t/as GIO [2023] NSWPIC 406
CLAIMANT:	Owen Salmon
INSURER:	AAI Ltd t/as GIO
MEMBER:	Shana Radnan
DATE OF DECISION:	11 August 2023
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accidents Compensation Act 1999; assessment of damages under section 94; 55-year-old; soft tissue injuries; cervical spine and psychological injuries against background of pre-existing lower back injury and psychological problems; no non-economic loss; past and future economic loss, future commercial care, past and future treatment; Held – damages assessed according with sub-sections 94(3) and 94(4).
DETERMINATIONS MADE:	CERTIFICATE Issued under s 94 (5) of the Motor Accidents Compensation Act1999 Assessment of Claim for Damages made in accordance with s 94 of the Act 1. On the issue of liability for the claim, the GIO’s insured owed a duty of care to the claimant, breached that duty of care and the claimant sustained injury loss and damage as a result of that breach of duty. 2. Under sub-ss 94(3) and 94(4) of the Motor Accidents Compensation Act1999 (the Act),I specify the amount of damages for this claim as $151,892. 3. The claimant’s economic loss is reduced by, and the insurer is to have credit for the sum of $nil in accordance with s 130 of the Act. 4. The amount of the claimant’s costs, taking into account the amount of damages assessed in respect of this claim, assessed in accordance with the Act is $35,635.09 inclusive of GST. 5. Attached to this certificate are reasons for my assessment.

STATEMENT OF REASONS

INTRODUCTION

On 29 March 2017, Owen Salmon (the claimant) was the sole occupant stationary at the intersection of Trafalgar Avenue and McMasters Road at Umina Beach. While waiting to negotiate a left hand turn, he was rear ended (hereinafter referred to as the motor vehicle accident).
He did not require ambulance or hospitalisation. After the accident he drove from the Central Coast back to Sydney. Airbags were not deployed in the accident.
The claimant in his personal injury claim form reported he tried to call the incident in via a Police Assistance line on the day of the accident but was refused an event number. He reported the accident in person on 25 September 2017 where an event number was recorded as E68461967.
The insured’s driver claimed the accident was at low speed, less than 5kmph and damage to the claimant’s motor vehicle consisted of a “scratch to the paintwork on the rear bumper bar”. The claimant advised at the assessment conference he held photographic evidence of his vehicle and the damage sustained. A post assessment direction was made for the photographs to be produced. The claimant failed to produce any.
The insurer admitted liability in its s 81 Notice dated 13 May 2020. There is no allegation of contributory negligence.
The claimant contends he has suffered the following injuries in the motor vehicle accident:
(a)      soft tissue injury to cervical spine;
(b)     soft tissue injury to thoracic spine;
(c)      soft tissue injury to lumbar spine;
(d)     soft tissue injury to right shoulder;
(e)      tissue injury to left shoulder, and
(f)      psychological injury – post traumatic stress disorder, memory loss, shock, stress, trauma and anxiety.
At the time of the accident the claimant was working at a law firm undertaking his practical legal training to enable admission as a solicitor. He obtained his practising certificate and remained employed with the same firm until May 2018.
Permanent impairment did not exceed the statutory threshold and damages for non-economic loss were not available based on the determination of Medical Assessor Assem that whole person impairment relating to his physical injuries did not exceed the statutory threshold of 10%. The determination of Medical Assessor Sidorov found persistent depressive episode was not caused by the motor accident.
The damages requiring assessment are limited to past and future treatment expenses and past and future economic losses and future paid care.
There following matters touch upon the assessment of damages:
(a) pre-motor vehicle accident medical history, and
(b) the nature and extent of injuries sustained in the subject accident, in the light of pre-existing history.

Pre-motor vehicle accident medical history:

The claimant had longstanding lumbar spine issues dating back to the early 1990 as evidenced in the clinical records of Family Chiropractic Chatswood (document A19);
(a) there had been a history of depression as reported to Medical Assessor Sidorov.
Review of medical notes established the claimant attended upon a number of general practitioners prior to the motor vehicle accident:
(a)      records of Five Dock Medical Centre (document A2) evidences long standing cervical spine complaints dating back to 2005;
(b)     an entry dated 27 September 2016 noted the claimant attended due to           pain in the left forearm in the context of occasional neck pain;
(c)      MRI scan undertaken on 1 October 2016 identified “mild left sided foraminal narrowing at C4/5 and C5/6 with potential for irritation of the C5 and C6 nerve root”, and
(d)     the claimant attended the practice on 21 March 2017 with dizzy spells, slight vertigo, tingling in neck. “No pain in neck or arms”.
The claimant in his claim form reported neck problems since 2016 and back problems 20 years ago.
The claimant reported in his medical history attending upon a chiropractor regularly for back pain following a motorcycle accident over 30 years prior. The claimant confirmed when his symptoms flared he would undertake twice weekly chiropractic attendances to deal with lower back pain.

Nature and extent of injuries sustained in the subject accident in the light of pre-existing history

The claimant did not require the assistance of ambulance or hospital examination on the day of the accident. He drove back to Sydney from the Central Coast after the motor vehicle accident.
He attended upon his general practitioner Dr Mehta at Burwood Medical Centre on
30 March 2017 complaining of pain to his neck, both shoulders and lower back. Physical assessment confirmed that his shoulder movements were normal. There was restricted movement at the cervical spine. Dr Mehta’s notes recorded:
“MVA on 29/3/17. Was a driver of vehicle stopped at T junction. Another car hit from behind. No head injury. Was thrown forward. C/o pain in back of neck, both shoulders and lower back. Has neck & lower back problem.”
He requested an X-ray of cervical spine and prescribed anti-inflammatories.
Review of the general practitioners’ clinical records reveal he returned to see Dr Grant on 25 September 2017, to obtain a medical certificate to support the claim.
Records of Five Dock Medical Centre establish that the claimant did not seek treatment for injuries at the clinic but rather he continued with chiropractic treatment for the year following the accident.
The claimant attended Dr Sanders for psychological problems, sleep difficulty, fatigue on 24 April 2018.
Dr Sanders also took a history on 27 June 2018 of “whip-lash -states constant neck and shoulder-pain – states causing difficulty sleeping”.
On 19 March 2019 the claimant attended Dr Sheiban complaining of “left neck and shoulder muscular strain.” A referral for radiological imaging and chiropractic treatment was provided on this occasion.
On 14 February 2020 there were further complaints of left shoulder discomfort and reference to “neck pain radiating down arm”.
On 6 July 2020 again the claimant reported ongoing neck pain to Dr Sanders.
The claimant confirmed in his written submissions that, at present, his lower back pain is no better or worse than it was prior to the accident. The neck, shoulders and upper back, for the most part asymptomatic prior to the accident, are now the cause of significant and constant pain and discomfort.
The claimant submitted that Dr Grant’s observations are supported in the contemporaneous record. The claimant attended Dr Grant’s practice on the day of the accident, and again on 31 March 2017. On the later occasion, he completed a Patient Accident Report Form, in which he recorded “instant back neck + shoulder pain. Neck put out instantly”.
He described headaches, some blurred vision, neck, shoulder and back pain. This is a wider-ranging, more severe presentation than any prior to the accident, and one which deteriorated and required regular chiropractic intervention until late 2021 when the claimant was no longer able to afford treatment. Not only have the claimant’s shoulders and upper back become symptomatic, the claimant’s complaints of pain in the neck are now constant, not occasional. He does not experience “flare-ups” of symptoms requiring short-term attention, rather he has developed chronic pain conditions.

Radiological investigations and records

CT scan dated 23 March 2018 showed mild multiple foraminal stenosis but no other significant abnormalities. This scan was at the request of Dr Dixon for medico-legal purposes.

Claimant’s medical reports

Clinical notes of a number of general practices were produced in the matter and I draw attention to the following;
(a) a report obtained from Dr Grant his general practitioner dated 22 October 2021. Although he has treated him prior to 2005 the claimant resumed seeking treatment in September 2013 for headache and lower back pain that had “come and gone”, and
(b) Dr Grant, who the claimant submitted is best positioned to observe any fundamental change in presentation, given he has been treating the claimant for some 26 years, commented that:
“Since the accident there had been an increase in neck, shoulder and arm
symptomatology with reports that sleeping had become difficult, sneezing
upset the neck, there was the onset of recurrent neck and shoulder issues
including weakness and pain into the left arm. Prior to the accident it was reported that his neck and back had been the best it had been in a long time.”
The clinical records of Five Dock medical centre were relied upon by the claimant to establish the treatment regime from 2000 onwards. In the two years preceding the motor accident there were no complaints of lower back, shoulder pain or headaches. There was a single attendance for neck pain.

Claimant’s qualified medical reports

A medico-legal opinion of Dr Drew Dixon, orthopaedic surgeon and he referred the claimant for CT scan of cervical spine. He examined him on 20 March 2018. He accepted injuries to the cervical spine, both shoulders, thoracic spine and lumbar spine. He noted a restriction in cervical movement with some asymmetry of movement, bilateral restriction in shoulder movement, worse on the left, and pain on back extension which was reduced by one-half with forward flexion to just past knees.
Dr Dixon also provided an updated report dated 19 August 2020 with a further review of the claimant. He noted that whilst the claimant had been referred to a musculoskeletal specialist for pain in his neck and left shoulder, he did not take up this referral.The claimant’s reported impact of headaches and concentration were confirmed. He commented “he does not require commercial assistance” for domestic tasks. He proceeded to award a DRE Cervicothoracic Category II or 5% whole person impairment, DRE Thoracolumbar Category II or 5% whole person impairment, 5% whole person impairment for the left shoulder and 3% to the right shoulder to obtain a total whole person impairment of 18%.
This opinion is considerably greater than that of independent Medical Assessor Assem and his assessment of 2% whole person impairment.
I treat the opinion of Dr Dixon as to future treatment , impact on employment and equipment need with a degree of caution noting the overstatement of impairment.
Dr Dias provided a report dated 23 January 2023 as an occupational physician. He confirmed the thoracic symptoms had resolved. So too the lumbar condition had returned to pre-accident symptomatology. The claimant confirmed he returned to running and jogging but “in a much diminished capacity” (p84 claimant’s bundle). Dr Dias’ prognosis for significant clinical improvement “would have to be judged as relatively poor”. He further commented that:
“Mr Salmon has sustained a persistent aggravation of pre-existing largely asymptomatic degenerative changes in his cervical spine region as a result of his involvement in the subject accident, an aggravation which persists through to the present day and is likely to persist on an indefinite basis into the foreseeable future.”
His apportionment of the symptoms to pre-existing disease was 10%.

Insurer’s qualified medical reports

The insurer relied on the opinion of Dr Machart, orthopaedic surgeon, completed a report on 20 July 2020. He accepted a soft tissue injury to the cervical, thoracic and lumbar spine, “nothing serious or structural”. He opined that, “given the circumstances of the description of the MVA, and the events immediately after, it was unlikely that there was substantial structural damage to the car occupant. The reasons for ongoing and worsening pain are not obvious, and not confirmed on investigation as structural injury.” Dr Machart proceeded to assess 0% whole person impairment as there was no demonstrable injury to the shoulders limiting shoulder motion.
As to prognosis Dr Machart opined:
“The prognosis was for the soft tissue injury to have healed within 6 or 8 weeks from injury. Reasons for ongoing or worsening symptoms are not immediately obvious. There is no indication that there is need for treatment now or in the future for demonstrable pathology as a result of the MVA” (p19 of insurer’s final bundle).
The insurer qualified Dr Bentivoglio who assessed the claimant on 12 April 2023. He noted the claimant has not seen any specialist for treatment and nor had he seen any rehabilitation provider. No medications were taken.
The symptoms complained of at this assessment were:
“Neck – this is the area that troubles him most of all. He always has neck pain. The pain is present even at rest. The pain in his neck radiates towards both shoulders. On the left hand side, it stops at his shoulder. On the right hand side, it radiates down to his right upper limb to about his elbow region. He feels he has decreased movement present in his neck and all movements appear to be equally diminished. He notes some crepitation present on moving his neck, but these generally do not make any difference to his symptoms. There is no particular time of the day or night when his symptoms are at their worse. His symptoms fluctuate in severity and are made worse with certain activities. He finds when sitting at a computer looking at the screen his symptoms worsen. He has headaches on most days.
Right shoulder – he always has pain present in his shoulder. The pain is present even at rest. The pain is over the posterior and lateral aspect of his shoulder. He feels he has decreased movement present in his shoulder. It is particularly flexion that is mainly involved. He does not notice any crepitation present on moving his shoulder. His shoulder symptoms worsen with activity. He feels he has decreased strength in his shoulder. He feels if anything his shoulder symptoms are worsening”
Diagnosis and opinion:
“This gentleman has evidence of some degree of degenerative changes in the cervical spine which could have arisen as a result of the motor vehicle accident as the CT scan was performed more than 12 months following the motor vehicle accident. On today’s physical examination there is no evidence of any nerve root irritation or compression to suggest he would benefit from any surgical treatment. However he does have evidence of an abnormality that would give rise to permanent weakness present in his cervical spine that is likely to cause him ongoing intermittent symptoms possibly indefinitely.”
He concluded:
“On the investigations presented to me today, I feel that his ongoing neck symptoms are probably reasonable, but I doubt that the minor abnormalities seen on his ultrasounds of his shoulders should produce many symptoms after having appropriate treatment for the mild subacromial bursitis.”
As to impact on earning capacity Dr Bentivoglio opined:
“I would not consider that the injuries in the motor vehicle accident have caused any impairment of his earning capacity either currently or in the future.”
He commented further:
“being a solicitor, a business consultant, and bookkeeper, a program administrator, a general clerk, a corporate general manager and a radio presenter. I would consider all these occupations would be appropriate for Mr Salmon, even with some degree of ongoing neck complaints from the motor vehicle accident on 29 March 2017. He would be perfectly capable of performing all of these occupations on a full-time basis with is musculoskeletal complaints.”

Commission Medical Assessments

Physical injuries

Medical Assessor Assem (document R7) who assessed for physical injuries and his amended certificate dated 21 January 2022 determined injuries did not exceed 10% whole person impairment. He determined the claimant sustained soft-tissue injury to the cervical spine with pain referred to both shoulders.
His assessment of whole person impairment. The basis of his assessment was:
“15. The following injuries WERE caused by the motor accident:
Cervical Spine – soft tissue injury with pain referred to both shoulders (redefined)
Lumbar Spine – soft tissue injury (resolved)
16. The following injuries WERE NOT caused by the motor accident:
Shoulder – soft tissue injury
Left Shoulder – soft tissue injury
Thoracic Spine – soft tissue injury”
His diagnosis and reasons were:
“Mr Salmon is a 53-year-old right-hand dominant man who was involved in a relatively minor motor vehicle accident on 29 March 2017. The description of the accident occurring causing a scratch to his vehicle was not denied by Mr Salmon. There is also an absence of ongoing symptoms requiring investigation or treatment, apart from a CT scan that was arranged by a medicolegal examiner one year after the subject accident. Nevertheless, I have accepted a soft tissue cervical spine injury with pain referred to his shoulders, causing secondary limitation in shoulder motion. He also has contemporaneous medical evidence of a soft tissue injury to the lumbar spine that has now resolved. His back complaints are similar in intensity, character and location to what he usually experiences. There was no report of an injury to his thoracic spine and no pain or limitation reported in the thoracic region.” (page 28 IFB).
His assessment of whole person impairment was 2% for cervical spine pain causing restriction in shoulder movement.

Psychological injuries

Medical Assessor Sidorov examine the claimant for psychological injuries on and determined in his certificate dated 23 February 2021 the following:
“There appears to be no clear nexus between Mr Salmon’s persistent depressive disorder and the motor vehicle accident. There are likely other stressors associated with the development of Mr Salmon’s persistent depressive disorder particularly the ongoing civil litigation suit, as well as the issues with his children which led to the breakup of his relationship in 2018. There is also no contemporaneous medical evidence to show the temporal development of.depressive symptoms from the time of the motor vehicle accident.”(p46 of IFB) This determination was subject to review.”
A Review Panel determination presided over by Medical Assessor Roberts issued on
28 November 2022. Insofar as psychiatric injury is concerned, the MAS Review Panel, took a history of fatigue, impaired concentration, depression, anxiety, social isolation and the complete absence of motivation. In weighing the pre-existing psychosocial stressors described above, the Review Panel commented:
“The Panel considered the longitudinal course of psychiatric symptomatology
as reflected in the clinical documents. The Panel considered the multiple
significant adverse circumstances to which Mr Salmon has been exposed
including failure of his business, theft of money, failure of his marriage, loss of
his family, criminal charges, incarceration and a protracted civil process relating
to business matters. The Panel also took into consideration the possible
presence of obstructive sleep apnoea, a health condition associated with
depressive symptomatology. The Panel also considered the temporal
sequence of events and the course of Mr Salmon’s psychiatric symptoms. The
Panel concluded that notwithstanding these factors, the presence of chronic
pain ascribed by Assessor Assem to the subject motor accident represents a
factor with the potential to contribute to the causation of Mr Salmon’s
psychiatric presentation.”

The Review Panel diagnose persistent depressive disorder with pure dysthymia giving
rise to 6% whole person impairment.

Submissions on Injury

The claimant’s submissions on injury

The complaints of pain and need for chiropractic treatment pre-accident were largely directed at the lower back. The adjustment therapies targeted the lower back. The claimant accepts that, at present, his lower back pain is no better or worse than it was prior to the accident. The neck, shoulders and upper back, for the most part were asymptomatic prior to the accident, noting occasional neck pain as far back as 23 May 2005. He returned to Dr Grant in 2013 with ongoing complaints of headaches and lower back pain. On 20 January 2015 he has reported headaches noting his neck seemed twisted. These symptoms were very intermittent and post motor vehicle accident are now the cause of significant and constant pain and discomfort. Dr Grant who has treated the claimant for some 26 years supported the change in symptoms post-accident.
Whilst it was evident that the claimant had various stressors and required treatment from psychologist for counselling records indicate that he prior to the accident, he had received extended episodes of counselling related to other stressors in 2008 to 2009 with Jenny Leahy and in 2014 with Dr Cornish. The claimant’s psychological health was much improved in the immediate period before the accident. He had not required any specialist intervention for some three years. He was in his final year of law school.
Post accident the claimant’s psychological state has steadily declined resulting in depression, loss of motivation, insomnia, low mood. Dr Cornish provided a further seven counselling sessions between May and December 2019.
Noting the review panel findings, there is ongoing unchallenged evidence as to psychiatric injury.

The insurer’s submissions on injury

When Dr Bentivoglio, orthopaedic surgeon, first examined the claimant during April 2023 (R9) he expressed the opinion that the accident the subject of this claim may well have resulted in a soft tissue injury to the cervical spine for which the prognosis was for ongoing symptoms. By contrast, after Dr Bentivoglio had the opportunity to view the notes of ‘Family Chiropractic Chatswood’, which included the MRI scan of the cervical spine undertaken on
1 October 2016, he expressed the opinion that any soft tissue injury sustained in the accident the subject of this claim was temporary and any impairment would have been limited to a period of four to six weeks.
Despite the claimant’s regular attendances upon ‘Five Dock Medical Centre’ over the period 13 November 2012 to 28 March 2017 (the day before the accident), the claimant did not make any mention of the accident the subject of this claim (or any injuries arising out of it) when he first attended the medical centre after the accident, being an attendance on
4 April 2017 (approximately five days after the accident). Indeed, the records contained no reference to the accident the subject of this claim when the claimant was reviewed on
21 July 2017, 24 April 2018 (at which time there was clear reference to sleep difficulties and fatigue) and 8 May 2018 (when there was reference to inter alia intermittent left calf pain and potential for some form of L5/S1 nerve root involvement). Indeed, the records provide no history of the accident the subject of this claim until the claimant was seen on 27 June 2018 (approximately 15 months following the accident the subject of this claim).
Medical Assessor Assem provided his opinion without the benefit of the clinical notes of ‘Family Chiropractic Chatswood’ and ‘Five Dock Medical Centre’. It was submitted that I would not be satisfied that the accident resulted in a frank injury to either shoulder. In this regard, the insurer not only draws you to the opinions of Dr Machart and Dr Bentivoglio but also the finding of Medical Assessor Assem.
As to the claimant’s psychiatric complaints, it was submitted that I would not be satisfied the claimant presents with any ongoing complaints of significance, arising out of injuries sustained in the accident on 29 March 2017. In support of this position, my attention was drawn to the following:
(a)      There was no dispute as to the claimant’s longstanding pre-accident psychiatric complaints (including depression, anxiety, impaired sleep, headaches, lethargy, etc) dating back to at least 2008 (as evidenced by the report of Ms Leahy, psychologist, dated 11 December 2008 (document A21)). Such complaints having been in the context of multiple forms of litigation (family custody disputes and commercial disputes in the context of the claimant’s business’ insolvency leading to the claimant’s bankruptcy and ongoing litigation which continues to the current day – noting litigation arising out of the commercial dispute culminates with a hearing in the NSW Supreme Court this month, August 2023 with an estimate of 16 days. Indeed, those pre-existing psychiatric complaints were of sufficient severity that the claimant was certified as totally unfit for work for substantial periods during 2013 and 2014.
(b)     Dr Cornish, psychologist, is likely to have provided the claimant with some 10 sessions of treatment during 2013 and 2014. As at 3 July 2014 it was noted the claimant continued to experience episodic high levels of depression, anxiety and stress, facilitated by multiple legal cases in which he was involved.
(c)     The claimant presented to Five Dock Medical Centre on 6 November 2015 with a history as to having been stressed for nine years.
(d)     Dr Cornish, psychologist, provided a report of 22 February 2019 post-dating the accident the subject of this claim by approximately 2 years. This report makes no reference at all to injuries arising out of the accident the subject of this claim. Rather, the claimant was noted to present with extreme depression/anxiety and severe stress in the context of having been ‘… referred for assessment and management of symptoms of stress, low mood and sleep difficulties. At the time of referral, Owen was in a long-term “on and off again” relationship. He was also awaiting judgment on a drawn out court case as well as continuing to fight in Family Court for access to his children’. The claimant was noted to have been provided with strategies to assist with his sleep difficulties but at the time ‘… he feels many stressors are out of his control which has perpetuated a sense of helplessness and the reality of some of his current stressors makes cognitive therapy more challenging’.
(e)     When Medical Assessor Sidorov, psychiatrist, examined the claimant during February 2021 (document R8) he diagnosed the claimant with a persistent depressive disorder not caused by the accident. In doing so it was noted the claimant’s answers with respect to the City to Surf and the articles published by Insolvency News were unsatisfactory whilst Assessor Sidorov pointed to the other likely stressors in the claimant’s life in particular the ongoing civil litigation as well as custody disputes in the context of a marital breakdown.
(f)   The Commission’s review panel certificate dated 4 November 2022 did diagnose a persistent depressive disorder caused by the motor vehicle accident. It would appear their only critique of Medical Assessor Sidorov’s certificate was in the context that Medical Assessor Sidorov was not provided with the certificate of Medical Assessor Assem before going on to express the opinion that the presence of chronic pain ascribed by Medical Assessor Assem to the subject accident, represented a potential contribution to the claimant’s psychiatric presentation.
By contrast, neither Medical Assessor Assem or indeed, any of the Commission’s Medical Assessors had the benefit of the clinical records of ‘Family Chiropractic Chatswood’ and ‘Five Dock Medical Centre’ and the information pertaining to pre-existing problems.
Any physical injuries arising out of the accident the subject of this claim resolved within a short period of the accident at best four to eight weeks. Further that the claimant does not present with any ongoing psychiatric complaints causally related to the accident the subject of this claim.

Finding on injury

The claimant was involved in a relative minor traffic accident on 29 March 2017. The claimant sustained soft-tissue injuries to his neck. He continues to complain of constant neck pain and stiffness. There is no muscle guarding or spasm and no radicular symptoms corresponding to a specific dermatomal pattern. He is reporting a deterioration to his symptoms over time.
The opinion of Dr Grant who has treated the claimant over a long period of time is persuasive. He reported the neck complaints are more severe and differ from that experience prior to the accident.
Whilst Medical Assessor Assem did not have the benefit of the earlier chiropractic records and clinical records of Five Dock Medical Centre, the examination undertaken accords with the commentary of Dr Grant.
The claimant sustained a short term aggravation of lower back pain. Any aggravation of symptoms of back pain have now resolved, confirmed by the claimant. The examination of Medical Assessor Assem confirms there were no radicular symptoms or muscle guarding, spasm asymmetry or spinal dysmetria noted in examination. His back symptoms have improved at the time of the assessment, now at similar intensity, character and location to what he experienced pre-accident. There is no radiation to lower extremities.
The claimant’s thoracic spine injury was not found to be accident related as determined by Medical Assessor Assem.
The impact of the motor vehicle accident injuries on the claimant’s ability to perform activities of daily living and need for care has been considered against a background of pre-existing conditions and his subsequent ability to run the City to Surf in competitive times.
The claimant takes simple analgesia when needed. I note Dr Bentivoglio opined:
“On the investigations presented to me today, I would not consider he requires any treatment in the future. This gentleman’s prognosis for his shoulder is good. The prognosis for his neck remains somewhat guarded as he does have permanent weakness present in his neck that may give rise to ongoing intermittent symptoms.” (p53 insurer’s final bundle).
I accept that the claimant has sustained a neck injury and this is continuing to date with reported constant symptoms of neck pain. The claimant considers his condition has deteriorated.
Whilst the claimant in proximity to the motor vehicle accident was able to actively participate in the city to surf for further two years the gradual deterioration resulted in a cessation of this activity.
Whilst the claimant had degenerative changes to his cervical spine before the accident the soft tissue injury has aggravated his pre-existing degenerative condition which was symptomatic in late 2016. Also the determination of Assessor Assem not having all the clinical records available did not consider the extent of pre-accident symptoms and I take into consideration, I have had the benefit of the complete picture of pre and post-accident clinical records.
Noting the determination of the medical review panel, I am satisfied that the claimant has suffered psychological injury as a consequence of the pain suffered from physical injuries. The ongoing pain has contributed to his psychological symptoms. He has also a significant history of psychological trauma.
I also find the considerable stressors outside of the motor vehicle injuries continue to play a part in his ongoing psychological symptoms. The insurer highlighted the medical review panel did not have the clinical records and their determination should be qualified in the light f the missing information. I accept this submission noting where medical assessors did not have the full picture, their opinions need to be considered again all the evidence before me. that impact on the claimant. His ongoing commercial litigation scheduled for a 16 day hearing commencing this month cannot be disregarded.
Further the review of the significant records of the chiropractor and the details of treatment as recorded in the patient history notes satisfies me that post motor accident treatment included many areas of the claimant’s spine including the lumbar region on a regular basis. The ongoing nature of these consultations assisted me in drawing the conclusion that the claimant’s chiropractic needs indicated the ongoing problems were complex and whilst the claimant contends that his reason for working shorter hours and requirements of domestic assistance are motor accident related, I find that he has ongoing degenerative issues throughout his spine and this also impacts on his abilities to perform work and domestic related tasks.

Vocational assessments

The claimant relied upon the assessment of Bjorn Shakespeare (registered physiotherapist) report dated 6 April 2023 noted that Mr Salmon demonstrated unrestricted work abilities for sitting tolerance, walking tolerance, stair climbing, balancing and bilateral manual dexterity but also determined that Mr Salmon would be most suited to part-time hours (21 per week).
In Ms Vanessa Mile’s (organisational psychologist) report dated 6 April 2023, recorded that “his symptoms of depression, low motivation and daytime fatigue are likely to hamper his attempts to obtain and maintain employment.” The insurer commented on this opinion that while this may be true, it is difficult to attribute such symptoms to the accident in question alone. It is possible that Mr Salmon’s symptoms of depression and low motivation are due to him losing his business through what he said involved other directors “stealing his money”. Mr Salmon also said that it was his experiences with his company “going under” that lead him to want to study law.
The insurer relied upon the report of Joe Hart vocational psychologist concluded:
“Mr Salmon’s presentation is either highly atypical or inconsistent with the presentation of a patient who has genuine depression or anxiety. While Mr Salmon may be suffering from genuine depression or anxiety, based on his responses he may be exaggerating his symptoms in the hope of reducing his capacity to return to full-time work. It is recommended that a formal diagnosis through the assistance of a psychiatrist or clinical psychologist is made.
Regarding Mr Salmon’s physical capacity to work, Mr Hart commented that “his main problem is sitting for long periods at a desk and having trouble sleeping due to his neck and back pain. Whether this pain is due to the accident in question is beyond my area of expertise to determine.” (p74 IFB).
He opined:
“With the assistance of an effective psychologist to help him process the challenges he experienced when losing his business, manage his reported pain, and provide him with medication and/or techniques to assist him with his sleep, given his extensive training and work experience, in my opinion, Mr Salmon should be capable of a return to full-time work from a cognitive/vocational capacity perspective.
Continuing in his current work as a solicitor, whether for his current employer or another firm appears the most obvious option. With appropriate psychological support and with motivation he should be capable of full-time work, and he reports he is well-regarded for his skills. Other options would be in some form of business consulting work, which he has done before, bookkeeping work, or some more general business management roles, all of which he has done previously.” (p75 IFP).

Past economic losses

The claimant’s submission

Were it not for the accident, the claimant contends he would have commenced working with Emprise Legal (or an alternative commercial legal firm) as a lawyer once he obtained his GDLP in April 2018. The claimant was upon completion of prescribed training admitted to practice as a Solicitor a year later, on 24 May 2019.
After leaving Emprise Legal, the claimant was unemployed for three years. He subsisted on AusStudy and NewStart. During this time, he was applying for legal work and management work, however there were no suitable part time legal jobs available. The claimant remained on NewStart during 2020, the first year of the pandemic. (I note this period was a the height of the Covid-19 pandemic.)
In March 2021, the claimant commenced work as a part time solicitor for James Legal in the Sydney CBD. The claimant was employed on a part-time basis earning $879.75 weekly. This sum represented a pro-rate rate of an annual salary of $100,000 inclusive of superannuation.
In March 2022, by agreement with his employer, his hours were increased to 32 hours per week (and his salary increased to $1,349.37 net per week).The claimant has described his current difficulties at work in his statement which included computer work, sitting and standing for extended periods of time. His employer requires him to work three days per week from the office, which only aggravates his condition, due to the need to catch public transport to the city from Lane Cove.
The claimant submitted he rarely leaves the house, unless to attend court or the office. He describes having no time for anything except work and sleep. There are periods of absolute exhaustion, during which he will take naps during the day if not in the office. The claimant submitted he would not be able to cope with the demands of fulltime legal practice due to his depressed mood, disturbed sleep, poor memory, difficulty concentration and low motivation, as well as his pain symptoms.
The claim for economic loss assumes the following:
(a)      the claimant is presently capable of part-time work up to four days per week;
(b)     the claimant’s symptoms are chronic and are unlikely to improve before retirement age;
(c)      the claimant will likely have to reduce his working hours to two or three days per week as he ages;
(d)     there has, in accordance with the opinion of Dr Dias, been a 30% permanent loss of earning capacity by reason of the accident, and
(e)      the claimant:
(i)would have difficulty doing sustained IT work and word processing or reports as well as the sustained reading of legal documents due to neck pain and stiffness and difficulty concentrating due to headaches and difficulty with fatigue due to insomnia. He has difficulty paying attention to long lectures due to difficulty with prolonged sitting and needed to shift about the chair;
(ii)the claimant will also have difficulty attending frequent meetings with clients, barristers and other stakeholders, prolonged phone use, sitting still for long periods in courtrooms and manoeuvring volumes of files;
(iii)the claimant’s working life expectancy has likely be reduced by five years as a result of his injuries;
(iv)uninjured, the claimant would have commenced fulltime employment as a solicitor in a generalist or commercial practice from 24 May 2019 (that being the date of his admission to practice), earning at least $100,000 per annum (or $1,442.08 net per week) with the opportunity of having his salary increased over time once probation periods had expired and he became an unrestricted practitioner;
(v)uninjured, the claimant would most likely have continued working fulltime as a solicitor for the foreseeable future, and for as long as he chose, and
(vi)as at the date of assessment, uninjured, the claimant would have been approximately four years post qualification experience.
The claim was calculated in the sum of $333,106.76 inclusive of superannuation based as follows:
(a)      1 April 2018 to 23 May 2019 - $1,398 weekly net amounting to $82,482;
(b)     24 May 2019 to 1 March 2021- $1,427 weekly net amounting to $130,831.36;
(c)      2 March 2021 to 2 September 2021 $1,594.44 weekly net amounting to $18,581.94, and
(d)     3 September 2021 to 17 July 2023 $2,601.15 net weekly net amounting to $101,211.46

Period (a) above was based on his starting salary package. Period (b) above based on salary of $108,680. Period (c) above based on salary $120,091 and period (d) above based on salary $200,000.
Superannuation was claimed at the rate of 11% amounting to $36,641.74.

The insurer’s submissions on past economic losses

It was the insurer’s primary submission that I would not be satisfied that the claimant presents with any past and/or future impairment in earning capacity which has or will be productive of financial loss. The insurer drew my attention to the following:
(a)    there appears to be no dispute that at the time of the accident the claimant was not engaged in gainful employment and has not alleged that he would have had any capacity to engage in employment prior to 1 April 2018 (12 months following the accident);
(b)    when regard is had to the entirety of the evidence, I would find any impairment in earning capacity resolved within four to eight weeks of the subject accident;
(c)     the claimant has failed to provide sufficient evidence (or any evidence) upon which you can be satisfied that but for the accident he would have obtained a paid legal position with Emprise Legal, and
(d)    in the alternative, and as expressed by Dr Bentivoglio, even if I accepted the claimant does present with some ongoing neck complaints arising out of the accident the subject of this claim, I would not be satisfied that those neck complaints give rise to any impairment in earning capacity.
Oral submissions provided at the assessment conference referred me to the claimant’s capacity to run in the City to Surf some four months after the accident and to do the same in the following year. Participation in this event was relied upon to support the proposition that the claimant had recovered from all injuries within weeks of the accident.
The assumptions made by the claimant as to salary and employment offers were disputed. The investigations undertaken concluded that the employer Mr Mcintosh, did not make such offer. The answers provided by investigator Ben Huston at the assessment conference confirmed that he had questioned Mr McIntosh and that the contents of that conversation were accurately transcribed in his report and represents the conversation that took place and the response given.
The consequence of this evidence is that whilst the claimant contends he was offered a position as an employed solicitor to commence upon his completing of practical legal training this proposition is disputed.
The claimant has exaggerated the impact of his injuries in the history provided to Medical Assessors and his complaints of ongoing injury are inconsistent with his capacity to run the City to Surf. His failure to acknowledge himself in the video provided showing him participating in the fun run was disingenuous.

Assessment of past economic loss

Whilst completing his studies, the claimant was also doing his practical legal training at a firm called Emprise Legal (now Mason Parks), a generalist practice in Liverpool. The claimant had commenced with Emprise Legal in early 2017, his duties involved assisting solicitors with the day-to-day management of files. Specifically, the claimant would assist with drafting legal documents and correspondence, general administrative tasks (including organisation of large files), reading legal documents and conducting legal research. The claimant struggled with those duties, due to neck and shoulder pain, as well as impaired concentration and fatigue.
The claimant reported that the soft-tissue injuries and occipital headaches caused some difficulty concentrating to do his assignments. He reported struggling to complete the final part of training at the College of Law.
The claimant’s admission to practice as a Solicitor took place in May 2019.
He remained unemployed for three years. He could not find part-time legal work. COVID-19 restrictions also impacted on employment and looking for work. There were significant restrictions on the population in New South Wales, Courts and places of employment were often closed.
A position was found in March 2021 with the claimant working initially on a part-time basis earning $879.75 net weekly. His hours were increased subsequently increased to 32 hours weekly in March 2022 with his earning capacity increasing to $1,349.37. I note that in the intervening period the claimant also participated in his role as a management consultant from time to time, but denied making any significant income from his self-employment.
The claimant described the difficulty with working three days per week in the office, due to the necessity to “catch public transport to the city from Lane Cove”.
Having regard to the soft-tissue injuries sustained to his cervical spine and the impact of such injuries upon his mental health, I accept that the claimant has suffered impairment to his earning capacity from time to time as a consequence, but do not accept the extent of losses claimed that the motor accident injuries in particular neck pain and headaches require him to work only four days a week.
I also have regard to the significant external factors outside that of the complained injuries and consider that the claimant’s exhibited ability to participate in other physical activities such as the City to Surf, indicate a level of fitness and general health which does not accord with the claimed restrictions to work related tasks or the ability to work longer hours she he be inclined. The ability of the claimant to instruct and participate in his complex personal commercial litigation during the same period does not accord with the claimed inability to work full-time.
I accept that from time to time his ongoing physical and psychological symptoms impact on his ability to perform work related tasks and this has resulted in an impairment to his earning capacity. The most likely circumstances but for the accident have not changed. I do not accept that the restriction to the number of hours worked are solely accident related. I find there are other factors such as lower back problems, pre-existing psychological and preparation for the complex commercial litigation scheduled for hearing this month have also contribute to the claimant’s desire to work reduced hours.
The claimant’s employment and ability to gain employment initially was impacted by COVID-19 and societal restriction. Whilst the claimant has relied upon salary information from legal recruitment agencies, the salary range can vary considerably due to location, size and type of legal practice attended. The basis of the claimant’s claimed losses and expected salary rises are speculative at best. Having regard to the commercial reality of the impact of COVID-19 upon the workforce during this period, the career progression claimed is unlikely to have materialised.
The claimant was successful in gaining employment as a solicitor and has remained with the same employer since March 2021. His work hours increased to 32 hours weekly and he has remained to date participating at this level even though he continues to complain of problems.
The assumptions upon which the claim is based that he is only capable of working four days a week and the difficulties participating in work related tasks of sustained IT work, reading for long period, sitting for long periods attributed to neck pain and stiffness are not solely resulting from the motor accident. I note the claimant’s pre-accident history of a number of years of unemployment dependent upon external factors. He prior business venture closures, the period of incarceration and times where he was involved in complex family law proceedings. In addition to these factors, his long-standing back problems and neck issues suffered in September and October 2016 resulted in similar interference with work related performance.
I find that the impact of the claimant’s long standing back problems equally contribute to his reported ongoing difficulty attending frequent meetings with clients, barristers and other stakeholders, prolonged phone use, sitting still for long periods in courtrooms and manoeuvring volumes of files.
The problems associated with pace and concentration, neck pain and stiffness as well as occipital headaches had previously impacted on the claimant’s ability to work between 2009 and 2014 where he did not work and were noted again in the medical records of 2015 when he returned to management work.
The current symptoms are of a similar nature to that experience before the accident are also attributable to pre-existing psychological issues which were stress related. I accept that there has been an aggravation of his symptoms over time, but this is not solely due to motor accident injuries but also to degenerative changes noted before the accident.
I do not accept on the evidence before me that the nature and extent of the injuries sustained and their ongoing impact results in an identifiable weekly loss of one day weekly or 30% of capacity. I consider there are a multitude of contributing factors to the claimant’s decision to work four days per week. This includes the needs of the practise, the workload available and the claimant ongoing commercial litigation.
Whilst the insurer has submitted that injuries would have resolved within four to eight weeks post-accident, it is clear from the medical evidence and the independent medical assessments of Dr Assem and the Medical Review Panel findings that his injuries did not resolve completely and he has sustained permanent impairment to some degree on his earning capacity.
In the circumstances where the assumptions made do not accord with the most likely circumstances but for the accident, I consider the losses are unable to be calculated by way of a precise weekly sum to date.
I accepted that the injuries have impacted on the claimant’s ability to participate in work from time to time and he sustained losses as a result. I consider a buffer appropriate to compensate the claimant for periods where the claimant has been unable to participate in employment due to the pain from his neck injury and psychological injuries resulting from this pain, including poor concentration, headaches and difficulty with travel.
I assess past economic loss in the sum of $40,000 inclusive of superannuation entitlement.

Future economic losses

The claimant’s submission

The claimant made an assumption that the status quo will be maintained until age 67, then the claimant’s loss would be $1,032.77 net per week (that being the difference between a fulltime and part time salary at $200,000 per annum). This, the claimant says, is his minimum entitlement into the future.
Were he to retire five years early, which is something that Dr Dias has opined is quite likely, then the loss would be of a far greater magnitude. Similarly, if his hours were to gradually decline over the next five to ten years (another likely future circumstances), then the loss would be more significant. Further, the claimant submitted that by delaying the commencement of his legal career by two years, in circumstances where he was coming to the profession as an older practitioner (despite having had decades of relevant commercial experience), he lost opportunities for career development that a younger person would otherwise have had. Those lost opportunities, he submitted, must sound in damages for future economic loss. Time was very much of the essence for the claimant when he chose to change careers.
The claimant confirmed he currently has a sympathetic employer. If he were forced to seek employment on the open labour market, as described by Vanessa Miles, psychologist, in her report, he would face a number of barriers likely to lead to difficulty gaining and maintaining alternate employment. These include depression, low motivation and daytime fatigue.
Taking everything into consideration, the claimant made a claim for no less than
$1032.77 per week net plus superannuation of 14%, totalling $474,257.39.

The insurer’s submission on future economic loss

I would not be satisfied that the claimant presents with any past and/or future impairment in earning capacity which has or will be productive of financial loss. In support of this the insurer drew my attention to the following:
(a)    there was no dispute that at the time of the accident the claimant was not engaged in gainful employment and has not alleged that he would have had any capacity to engage in employment prior to 1 April 2018 (12 months following the accident);
(b)     when regard is had to the entirety of the evidence I should find any impairment in earning capacity had resolved within four to eight weeks of the accident;
(c)     the claimant has failed to provide sufficient evidence (or any evidence) upon which I could be satisfied that but for the accident he would have obtained a paid legal position with Emprise Legal, but for the accident, and
(d)     in the alternative, relying upon the opinion of Dr Bentivoglio, even if I were to accept the claimant does present with some ongoing neck complaints arising out of the accident the subject of this claim, I would not be satisfied that those neck complaints give rise to any impairment in earning capacity.

Assessment of future economic losses

Having regard to the impact of ongoing neck pain and associated psychological injuries a consequence of such ongoing pain, the claimant’s claimed losses of $1,032.77 weekly are based on assumptions that he would by now be earning $200,000 annually. The expected career progress has not been established.
The proposition that the claimant would be earn a salary of $200,000 per annum is speculative at best.
I have found that the claimant suffers ongoing injuries both physical and psychological from the motor vehicle accident. The claimed restrictions on the claimant’s ability to work full-time are not solely attributable to the motor accident. I am satisfied that the claimant has exhibited activities which of their nature do not accord with the level of complaint attributed to his injuries. The video footage of the claimant’s participation in fun runs satisfies me that the claimant’s injuries are not as significant as the claimant would have me believe.
Similarly, the impact of psychological problems on his cognitive functioning is not solely attributable to the pain of his physical injuries. The claimant reported a number of contemporaneous stressors which had been confirmed by the records of Dr Cornish. I also agree with the insurer’s submission that there was no recording of motor accident-related issues at the time of treatment with Dr Cornish after the accident. The conclusion which can be drawn from this is that such injuries were not contributing to ongoing psychological problems and any impairment to earning capacity from the claimed injuries would be limited.
I consider that a buffer is appropriate to compensate the claimant for periods of time where his neck symptoms are aggravated by the nature and extent of work. There are times that a solicitor has to carry heavy volumes of material to Court, keep fixed positions, extended periods of data entry and the like which are most likely to aggravate his injuries. There is likely to be economic loss from time to time when the claimant is unable to work due to the increased symptoms. The opinion of Dr Dias to support a 30% reduction in earning capacity, the claimed likely early retirement and the claimed ongoing loss is in stark contrast to the claimant’s capacity to exhibited in his performances of the 2017 and 2018 fun runs. It appears to me that the claimant is overstating the impact of his injuries on his ability to perform work related tasks.
Further the claimed problems of travelling on public transport is equally impacted by the claimant pre-existing significant and ongoing lower back problems.
But for the accident the claimant’s employment and career path would be much the same. He has been involved in significant commercial litigation for many years now relating to business matters. In the event he is successful with this action, there is likely to be a significant impact on his career path. He may well return to his business consulting career upon the conclusion of his litigation or cease work completely. He has extensive restrictions as reported by Dr Dias at paragraph 10, could equally applied as restrictions pertaining to lower back pain.
I accept the injuries attributable to the motor vehicle accident are likely to impact on his future earning capacity when his symptoms are exacerbated and will be productive of loss from time to time, but not to the extent claimed by the claimant equivalent to one day minimum per week.
The claimant has had long standing back problems and other stressors contributing to his psychological injury that have also impacted on his earning capacity and are likely to continue. The motor accident-related injuries are a contributing but not sole factor.
I do not accept that the losses claimed by way of weekly net sum accord with the most likely circumstances but for the accident.
I consider that a buffer is appropriate to allow for periods where the claimant’s symptoms prevent him from attending work. The claimant is currently aged 55 and has a further working life of some 12 years. I accept that the claimant has difficulties concentrating due to occipital headaches and fatigue due to insomnia consequent upon his neck pain radiating to his shoulders. His reported struggles include difficulty reading documents at speed due to neck pain. It may take him longer to complete tasks.
I consider a buffer is appropriate to account for losses attributable to time off or reduced working hours. I allow the sum of $100,000 for future economic loss inclusive of superannuation entitlements for the periods where the claimant is unable to work due to his accident-related symptoms.
I assess future economic losses in the sum of $100,000 inclusive of superannuation entitlements.

Past treatment losses

The claimant’s submissions on treatment losses.

The claimant claimed the sum of $6,068.79.
The insurer has not made any payments for s 83 expenses.
The claim consists of an estimated Medicare charge amounting to $1,000.

The insurer’s submissions on treatment losses

The insurer has disputed this sum on the basis that there is no information to ascertain which attendances and how they relate. The claimant has the onus to provide such information and failure to do so he has not satisfied the requirement to prove the claim.
The broader claim for $5,068.79 is also flawed as there is no evidence to support the items are injury related. At best a reluctant concession in the sum of $392 was made by the insurer for limited chiropractic treatment.
In general terms the insurer relied upon the opinion of Dr Machart and Dr Bentivolgio who opined the duration of injuries would have lasted no longer than four to eight weeks. Any treatment thereafter is unrelated.
Having regard to the independent assessments undertaken for physical injuries I accept that any treatment as it related to cervical spine issues would be related as Medical Assessor Assem considered the claimant sustained soft-tissue injury and permanent impairment of 2% to cervical spine.
Noting that the review panel made its determination that the injuries sustained psychological injuries attributable to the motor vehicle accident, the noting the determination of Medical Assessor Sidorov that the claimant did not suffer psychological injury, any amount claimed for medications or treatment for psychological conditions are not compensable or recoverable from the insurer.
I am satisfied with the insurer’s submissions dated 24 July 2023, that dental expenses claimed for Sydney Endodontist in the sum of $850 and Sydney CBD Dental in the sum of $390 are unrelated to the injuries sustained in the motor vehicle accident and should be disallowed. Similarly, the costs of an attendance upon Dr Massasso, rheumatologist are also unrelated and not recoverable.

The provision of Terry White Chemmart receipts for the period 15 October 2019,
23 May 2020, 20 November 2020 and 17 July 2021 for prescription of analgesic and antidepressants are in part related to injuries sustained in the motor vehicle accident.
The claimed chiropractic attendances summarising the attendances between 1 March 2017 and 26 June 2023, cover some attendances which clearly pre-date the motor vehicle accident. The attendances on 1 March 2017, 15 March 2017 and morning of 29 March 2017 are disallowed.
The remaining sum claimed of $3,488 was also disputed by the insurer on the following grounds:
(a) the extent of treatment prior to the motor accident would indicate the claimant was symptomatic up to the morning of the accident. The treatment following the collision would have been undertaken in any event due to pre-existing problems for which he received ongoing treatment, and
(b) in the alternative, noting that the claimant was fit to participate in the City to Surf in August 2017, only the eight attendances between 31 March 2017 and 21 July 2017 should be allowed and this period is consistent with the opinion of Drs Machart and Bentivoglio. As such a sum of $392 could be allowed.
I have reviewed the items and noting the finding of Medical Assessor Assem, attendances for cervical spine pain is related to the motor vehicle accident and where the attendances for chiropractic treatment include other region then the sum claimed should be apportioned to areas treated. Where the attendances do not identify the areas treated then the claimant has failed to prove the relationship to the injuries sustained and the amount is disallowed.
The information contained in the tax invoices issued merely refer to standard consultation. I am unable to determine if the consultation is related to the motor accident injuries or prior lower back issues.
Having reviewed the receipts and the submissions, I allow the following for past treatment losses claimed:

(a) $392 for chiropractic treatment to 21 July 2017, and

(b) a buffer of $1,500 for medications, anti-depressants, some psychological treatment and general practitioner attendances between the date of accident and date of assessment.

I allow the sum of $1,892 for past treatment losses.

Future treatment expenses

The claimant made claim for future treatment based on the opinion of Dr Dias that the claimant would require “ongoing conservative and supportive medical management on an indefinite basis into the foreseeable future at a cost of $2,000 annually.” The treatment included physiotherapy, chiropractic, analgesia, periodic imaging and general practitioner follow up.
The claimant sought the sum of $28,662.66 for future treatment. The basis of the claim was ongoing treatment for the remainder of his life expectancy:
(a)      medications $10 weekly; ($8,096);
(b)     general practitioner attendances quarterly $6.15 weekly ($4,979.04);
(c)      spinal adjustments $12.46 weekly ($10,087.62);
(d)     buffer for psychological treatment ($5,000), and
(e)      equipment – Dr Dixon recommended ($500).
It was the insurer’s primary submission that I would not be satisfied that the claimant has established any accident created need for future out-of-pocket expenses with respect to his musculoskeletal complaints.
There has been more recent reference in the medical evidence to whether or not the claimant would benefit from 10 to 12 sessions of psychological treatment to address his chronic pain issues. I would not be satisfied any ongoing chronic pain complaints are attributable to injuries arising out of the accident the subject of this claim and no allowance should be made.
I have found that the claimant sustained injury to his neck and related radiation of pain to his shoulders in the motor vehicle accident. I also accept there has been some exacerbation of psychological injury against a background of significant unrelated stressors.
The claimant has denied the effectiveness of chiropractic treatment. I rely on the reporting to Dr Sanders as to is effect being short lived. The claimant’s claim for ongoing spinal adjustments is neither reasonable or necessary as their effectiveness is short-lived.
The claim for ongoing medications at the rate of $10 weekly is not supported by the extent of usage to date. Similarly, the claim for general practitioner attendances is also excessive noting the extent of attendances the claimant undertakes for other unrelated conditions.
I allow a buffer for future treatment in the sum of $5,000 for conservative management of physical and psychological injuries.

Submissions on care

There was no claim made for past care losses.

Future care losses

The claimant’s submissions on future care

The claimant lives alone in a two-bedroom rented apartment in Lane Cove. He has been in a relationship for the past three years. His partner works as a school principal. She lives separately but spends about three nights a week at the claimant’s apartment. The claimant rarely leaves the house, unless it is to attend work. He neglects household tasks, largely due to fatigue and loss of motivation.
As evidenced by Dr Dixon’s examination, the claimant has difficulty bending and stooping due to thoracic back pain and heavy lifting and carrying due to shoulder brachialgia and back pain. Further, the claimant has particular difficulty lifting his both arms above shoulder height. He has trouble reaching objects on high shelves and doing overhead work at home. The claimant contends he has difficulty with heavier household activities and has had to pace his activities throughout the day and take regular rest breaks.
Dr Dias opined that the claimant is likely to require commercial assistance of three hours per week to assist with meal preparation, strenuous cleaning tasks, home handyman maintenance tasks and heavy grocery shopping duties.
The claimant submitted an allowance of five hours per week commercial care should be made until the age of 75 (being a period of 20 years): 3 hours per week x $52 per hour x 666.4 = $103,958.40.

The insurer’s submissions on future care:

The insurer submitted that I would not be satisfied that the claimant presents with any future impairment of domestic capacity:
(a) relying upon the opinions of Dr Machart and Dr Bentivoglio the accident the subject of this claim has not given rise to any impairment in the claimant’s domestic capacity beyond four to eight weeks following the date of the accident, and
(b) when Dr Dixon examined the claimant at the request of his solicitor, during
March 2018, he expressed the opinion that the claimant presented with no accident created need for domestic assistance.

Assessment of future care

I accept that from time to time the claimant may require assistance with the above shoulder heavier domestic tasks. I do not accept that the nature of his ongoing injuries in particular his ongoing neck pain radiating into his shoulder create a need for the claimed five hours commercially provided care weekly. He lives in a unit and ongoing home maintenance requirements are minimal. There is no gardening.
The psychological injuries do not of themselves impact on the claimant’s capacity to perform activities of daily living.
The insurer’s medical opinion supports the position that the nature of injuries do not require any future assistance. This is supported by the opinions of Dr Machart and Bentivoglio. Whilst this position is based on no ongoing accident related injuries, I have found that there are some ongoing neck injuries which likely impact on the heavier type tasks.
I do not accept the claimed five hours are reasonable or necessary, having regard to the living arrangements of the claimant. I do allow a buffer for the occasional assistance with the heavier type domestic tasks such as spring cleaning occasionally. I consider the sum of $5,000 would adequately cover such costs for future care losses which result from his ongoing physical injuries.

Assessment of damages summary

Under sub-s 94(1)(b) of the Act, I am required to make an assessment of the amount of damages for that liability that a court would be likely to award.
I assess the claim as follows on the findings set out above:
Economic losses
·        Past Treatment                   $ 1,892
·        Future Treatment                $ 5,000
·        Future Care  $ 5,000
·        Past economic loss            $ 40,000
·        Future economic loss        $ 100,000
Total of economic losses and non-economic loss $151,892
Total Damages Assessed       $ 151,892
The claimant’s economic loss is to be reduced by, and the insurer is to have credit for, the following payments:
Section 83 payments                  $nil

Costs and disbursements

I assess the claimant’s legal costs and disbursements in accordance with ss 149 and 150 of the Act and the Motor Accidents Compensation Regulation 2015 in accordance with the attached sheet in the sum of $35,635.09 inclusive of GST.
Costs allowed included 4 hours for the duration of the assessment conference.

Conclusion

On the issue of liability for the claim, the GIO’s insured owed a duty of care to the claimant, breached that duty of care and the claimant sustained injury loss and damage as a result of that breach of duty.
Under sub-ss 94 (3) and 94 (4) of the Act,I specify the amount of damages for this claim as $151,892.
The claimant’s economic loss is reduced by, and the insurer is to have credit for the sum of $nil in accordance with s 130 of the Act.
The amount of the claimant’s costs, taking into account the amount of damages assessed in respect of this claim, assessed in accordance with the Act is $ 35,635.09 inclusive of GST.

Legislation

In making my decision I have considered the following legislation and guidelines:
• Motor Accidents Compensation Act 1999;
• Motor Accidents Compensation Regulation 2015, and
• Claims Assessment Guidelines.

[2023] NSWPIC 406

11 August 2023