Teknikeller v Allianz Australia Insurance Limited
[2021] NSWPIC 468
•7 September 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Teknikeller v Allianz Australia Insurance Limited [2021] NSWPIC 468 |
| CLAIMANT: | Mustafa Teknikeller |
| INSURER: | Allianz Australia Insurance Limited |
| MEMBER: | Susan McTegg |
| DATE OF DECISION: | 7 September 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS - Assessment of damages; Motor Accident Compensation Act, 1999; front seat passenger in motor vehicle accident; significant pre-existing injuries; claimant 67 years of age; claimant had not worked since 2010; right knee replacement surgery 11 weeks prior to accident; whether accident caused aggravation of pre-existing conditions; whether aggravation continuing; Held – accident caused aggravation of injury to neck, lower back, right knee and psychological injury; accident not cause aggravation of pre-existing left knee or shoulder conditions; damages assessed for past treatment expenses; future treatment expenses and future commercial care; costs assessed. |
| DETERMINATIONS MADE: | 1. On the issue of liability for the claim, the ALLIANZ’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-sections 94 (3) and 94 (4) of the Motor Accidents Compensation Act 1999 (the Act), I specify the amount of damages for this claim as $28,665.23 3. 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 $15,862.66 inclusive of GST. 4. Attached to this certificate are reasons for my assessment. |
Reasons for Decision
Issued under section 94 (5) of the Motor Accidents Compensation Act 1999
INTRODUCTION
Mustafa Teknikeller (the claimant) sustained injury in a motor vehicle accident on 17 January 2017 (the accident).
I am asked to assess damages pursuant to the provisions of the Motor Accident Compensation Act, 1999 (the MAC Act) in respect of the injury sustained by the claimant.
The insurer has admitted liability for the claim.
The claim was the subject of an assessment conference conducted by videoconference on 31 August 2021. Unfortunately, the claimant’s camera was not working during the assessment conference, so he participated by audio only. An interpreter in the Turkish language also participated by telephone. Whilst I did not have the opportunity to observe the claimant’s demeanour, I noted that he answered all questions put to him in a straightforward and unemotive fashion.
During the assessment conference, I was advised the claimant no longer claimed past or future gratuitous care.
The claimant also sought to rely upon a statement of Sultan Teknikeller, the claimant’s wife which was both undated and unsigned. On the basis that statement was not signed and where it was inconsistent with the statement of the claimant and contradicted by other evidence, I suggested I would not give that statement any weight. Mr Hickey for the claimant indicated he had no objection to that course of action and Mr Hanna for the Insurer advised he no longer wished to question Ms Teknikeller. I do not propose to consider the statement of Ms Teknikeller further.
The claimant has a significant medical history. The overriding issue is whether the accident resulted in an aggravation of that pre-existing condition and, if so, whether the aggravation is continuing.
I am asked to assess damages in respect of the following:
·Past treatment expenses.
·Future treatment expenses.
·Future commercial assistance.
TRANSITION OF EXISTING DISPUTES TO THE PERSONAL INJURY COMMISSION
The Personal Injury Commission commenced operation on 1 March 2021. The former Dispute Resolution Service was abolished by Clause 3 of Division 2 of Part 2 of Schedule 1 to the Personal Injury Commission Act 2020, (the PIC Act).
10.The PIC Act and Regulation establishing the Commission provide that a new decision- maker may determine pre-existing disputes in accordance with the previously applying legislation.
11.I am a Member of the Motor Accidents Division of the PIC and clause 14A(1) of the Personal Injury Commission Regulation 2020 designates this application
pre-establishment proceedings and clause 14D(3) empowers me to assess the claim.
12.Because of the date of the accident, clause 14D(3)(b) provides that the MAC Act, the Motor Accident Injuries Regulation and the Motor Accident Guidelines continue to apply.
REVIEW OF THE FACTUAL EVIDENCE
The claimant’s history
13.The claimant is currently 67 years of age. He was born in Turkey where he worked in the field of electrical engineering before migrating to Australia with his wife and two sons in 1988.
14.After arriving in Australia, the claimant worked as an electrician until 2009 when he sustained a workplace injury to his right knee whilst working with Gilbarco Veeder-Root in Auburn. The claimant made a workers compensation claim in respect of the knee injury and associated depression.
15.In 2010 the claimant was given a redundancy package and has not worked since.
16.The claimant was in receipt of the Disability Support Pension since 2012 but now receives the Aged Pension.
17.The claimant was involved in a prior motor vehicle accident on 17 May 2014 (the 2014 accident). The Personal Injury Claim Form dated 9 September 2014 in respect of the 2014 accident indicates injuries to the neck, the right arm, the right wrist, both shoulders, the mid and low back, the left and right knee and a psychological injury.
18.In his statement the claimant also conceded he had a history of depression, raised cholesterol, hypertension, and Parkinson’s Disease.
19.The claimant underwent right knee replacement surgery on 31 October 2016.
20.The claimant asserts the effects of the 2014 accident eventually settled and he also experienced significant improvement after the knee replacement surgery.
21.Notwithstanding his medical ailments the claimant asserted he was generally feeling well prior to the accident. He says he was able to independently attend to most of his self-care, personal hygiene, social life, gardening, home maintenance and other activities around the house. He stated the ups and downs of life resulted in some mental health issues but at the time of the accident he was feeling okay.
Insurer’s summary of the claimant’s pre-accident medical history
22.The Insurer has provided a detailed summary of the claimant’s pre-accident medical history as disclosed in various medical records. The relevant history is as follows:
·During 2010 the records reveal knee derangement with severe osteoarthritic post traumatic changes and left ear hearing impairment (records of Plus 1 Medical Centre).
·On 3 August 2010 the claimant reported right knee pain experienced for three weeks following a fall. He was referred for imaging (records of City West Medical Centre).
·On 5 October 2010, 17 February 2011, 25 May 2011, 6 March 2012, 12 March 2012, 19 March 2012, 10 April 2012, 6 August 2012, and 7 September 2012 the claimant reported right knee pain. He was referred to physiotherapist, Uzma Malik and orthopaedic surgeon, Dr Frank Machart (records of City West Medical Centre).
·On 25 May 2011,12 September 2011, 12 March 2012, and 27 April 2012 the claimant was seen for anxiety/depression and was referred to Bestegul Tungandame (records of City West Medical Centre).
·During 2012 the records disclose generalised anxiety, major depression, degenerative changes with disc bulging of lumbar spine, hyperlipidaemia, and hypertension (records of Plus 1 Medical Centre).
·On 28 February 2012 the claimant reported ongoing knee and back pain. He was referred for imaging and to see Dr Ali Gursel (records of City West Medical Centre).
·A CT scan of the lumbar spine dated 28 February 2012 showed degenerative change in relation to the lumbar spine, most marked at the L4/5 level where there was mild central canal stenosis. There was severe right sided facet joint osteoarthritis at this level (records of Blacktown Family Medical Centre).
·A CT scan of the right knee dated 28 February 2012 showed severe osteoarthritis involving the medial compartment of the knee (records of Blacktown Family Medical Centre).
·A Centrelink Psychological Feedback Report dated 23 March 2012 diagnosed the claimant as suffering a major depressive disorder and generalised anxiety disorder with panic attacks. In addition, the claimant’s physical symptoms included severe right knee pain, disc problems in his back, hearing loss and hypertension. He faced significant social barriers which posed barriers to workplace participation (records of Bestegul Tungandame).
·On 29 May 2012 the claimant reported that Dr Gursel recommended he undergo surgery, however, he was not keen to proceed (records of City West Medical Centre).
·Dr Akkerman, psychiatrist, provided a report dated 7 September 2012. He diagnosed major depression caused by the knee injury and the subsequent redundancy. He assessed 26% whole person impairment noting that the claimant cannot work in his pre-injury occupation or any other occupation.
·On 6 November 2012 the claimant underwent a CT scan of the brain because of a history of ‘dementia work-up and hearing impairment in the left ear. Hearing loss in right ear’. No abnormalities were detected.
·During 2013 the records disclose diverticular disease, depression, GORD, R- baker’s cyst and L4/5 disc bulging with arthrosis (records of Plus 1 Medical Centre).
·An x-ray of the right knee dated 17 June 2013 showed moderate osteoarthritic change of the right knee joint with no suprapatellar bursal effusion.
·A report of Dr Kirsh, othopaedic specialist dated 20 June 2013 reported right knee pain. The claimant walked with a limp, could not walk far, and had trouble with stairs. He recommended a total right knee replacement.
·On 23 May 2014 Dr Athour reported the claimant’s involvement in a rear end collision on 17 May 2014. He reported headache, neck, thoracic and lumbar back pain. Dr Athour also mentioned the right shoulder.
·Following the 2014 accident the claimant attended Plus 1 Medical Centre on various occasions during the remainder of 2014 in respect of right shoulder pain, right knee pain, back pain, and neck pain. He also complained of depression.
·On 18 September 2014 Dr Athour reported decreased concentration, irritability and increasing tiredness and noted the claimant had withdrawn from society.
·Mr Roger Berbari, physiotherapist treated the claimant following the 2014 accident in respect of a right shoulder impingement.
·An ultrasound of the right shoulder dated 13 November 2014 showed no features of a rotator cuff tear. Bursal block with pain noted but no bursal thickening was identified (records of Blacktown Family Medical Centre).
·A whole-body bone/SPECT and CT scan was performed on 19 January 2015 as the claimant had neck pain, back pain, and joint pain. The CT demonstrated degenerative disc disease. The scan showed arthritis in the spine and peripheral joints.
·Dr Medhat Guirgis, orthopaedic surgeon provided a report dated 24 February 2015. He noted the claimant presented with pain and stiffness of the neck, right shoulder, lower back, both knees and chronic pain/anxiety/depression. Dr Guirgis diagnosed a chronic pain syndrome associated with impairment, disability, and handicap.
·Dr Anthony Smith, orthopaedic surgeon provided a report dated 14 May 2015 in respect of the 2014 accident. The doctor could not find anything objectively wrong with the claimant and indicated he was manufacturing physical signs. He stated that the claimant probably aggravated the degenerative disease in his lumbar spine but concluded any aggravation would have ceased after two months at the most.
·Dr Peter Morse, consultant psychiatrist, in his report dated 28 May 2015 took a history from the claimant that he had been depressed, withdrawn and irritable since the 2014 accident. He used to enjoy fishing but has not done that or helped his wife with domestic activities since the accident. Dr Morse noted the claimant’s records revealed he had been depressed since 2010 or 2012 when he had the work accident, lost his job, and had financial and family problems. Dr Morse did not consider the 2014 accident caused the claimant’s then depressed state although he said there may have been a slight increase in his depression because of his increased physical symptoms from the 2014 accident.
·Mr Tungandame, psychologist, provided a report dated 1 June 2015. The claimant was seen for counselling and psychotherapy for symptoms that were consistent with major depressive disorder and generalised anxiety disorder with panic attacks. The factors that impacted the claimant’s condition were the emotional, financial and marital problems that resulted from his redundancy in 2010 as well as a number of physical health conditions including hearing loss, osteoarthritis of the knee, degenerative changes in the lumbar spine with disc bulging, hyperlipidaemia, hypertension, diverticular disease, GORD, L4/5 disc bulging, severe back pain, arthritis in both hips and knees and arthritic changes of the thoracic and cervical spine. Mr Tungandame referred to the claimant’s functional impairment reporting symptoms including sleep disturbances, lack of concentration, inability to focus, severe depressed mood, fluctuating moods, lack of motivation, palpitations, panic attacks, excessive worry, hopelessness and helplessness, fatigue, exhaustion, irritability and agitation, tearfulness, and constant worry for the future.
·Dr James Bodel, orthopaedic surgeon, in his report dated 26 June 2015 took a history from the claimant that he sustained injuries to the neck, back, right shoulder and both knees in the accident. Dr Bodel diagnosed soft tissue injuries to the neck, back, right shoulder and knees due to the 2014 accident. The claimant required future treatment as well as ongoing domestic assistance as he was responsible for all gardening and handyman duties prior to the 2014 accident but could no longer undertake them. Dr Bodel concluded the claimant required assistance at that time with all activities that required any bending, twisting, lifting, kneeling, and squatting.
·A CT scan of the lumbar spine dated 7 August 2015 showed multi-level disc and facet joint degeneration and at L4/5 there was mild canal stenosis.
·A CT scan of the pelvis and hips dated 7 August 2015 showed only trivial hip joint degeneration and no definite active abnormality was detected. There was mild arthritis at both hip joints, mild to moderate focal arthritic change at the medial compartments of both knees and mild arthritis in the patellofemoral compartments of both knees. There was mild endplate degenerative arthritis and mild facet joint arthritis at right L4/5 level (records of Blacktown Family Medical Centre).
·On 29 January 2016 the claimant’s low back pain had been aggravated. Physiotherapy had made the pain worse. He was previously consulting Dr Athour Zeitoun at Fairfield (records of City West Medical Centre).
·In February 2016 the claimant reported ongoing pain in the neck, lower back and both shoulders post motor vehicle accident. Taking Endone and Panadeine forte with Panadol Osteo (records of Blacktown Family Medical Centre).
·In March 2016 complaints of lower back pain, neck, and right shoulder pain were recorded. He also had pain in his right knee which was affecting his walking as well as tiredness, lethargy, and lack of interest. He also had dizzy spells, slurred speech, blurred vision, and headaches with tinnitus (Main Street Family Medical Centre).
·In April 2016 the claimant had a right shoulder rotator cuff tear examination. The claimant travelled to Turkey on 12 April 2016 (records of Blacktown Family Medical Centre).
·In July 2016 the claimant noted that he was diagnosed with Parkinson’s in Turkey and was referred to a neurologist. He also noted depressed mood, low self-esteem, panic attacks, suicidal thought, delusions, and loss of interest in life. The claimant was ‘asking again and again’ for the disability support pension but it was noted that he does not qualify (records of Blacktown Family Medical Centre).
·Dr Dowla, neurologist, in his report dated 3 August 2016 noted that the claimant presented with a more than one year history of slowness in his gait, softness in his voice, dizziness and sometimes aggressive behaviour. The claimant had been diagnosed with Parkinson’s disease in Turkey. Dr Dowla confirmed the diagnosis of Parkinson’s disease on 21 September 2016.
·On 31 October 2016 the claimant underwent a total knee replacement at Bankstown Hospital under the care of Dr Kirsh.
·Dr Dowla, in his report dated 30 November 2016 noted that the claimant had a right total knee replacement four weeks prior. He was recovering but still complaining of cramping and paraesthesia in the legs and hands. A nerve conduction study showed a small sensory action potential. There was borderline left median nerve slowing at his wrist. The claimant’s wife complained of severe agitation and verbal abuse by her husband.
·An x-ray of the right knee dated 6 December 2016 showed the position and alignment of the total knee replacement was satisfactory with no periprosthetic complication (records of Dr Kirsh).
·The claimant was seen on 3 January 2017 reporting stiffness in the right knee when walking and an inability to bend it fully (records of Blacktown Family Medical Centre).
·An x-ray of the left knee dated 10 January 2017 showed tricompartment osteoarthritis.
The accident
23.On 17 January 2017 the claimant was the front seat passenger in a vehicle driven by his wife on Fairfield Street, Fairfield when it was suddenly struck from behind with some force by a Honda Accord. The claimant states his body was jolted violently backwards and forwards in the car. He recalls his right knee hitting the dashboard and says he felt immediate pain in his right knee, shoulders, neck, and lower back.
24.Neither the police nor the ambulance attended the scene. The Claimant and his wife drove home but reported the accident to Wetherill Park police station the same day.
25.The Claimant consulted Dr Altan Capa several days later. The claimant asserts he sustained the following injuries:
(a)injury to neck (aggravation);
(b)injury to lower back (aggravation);
(c)injury to both shoulders (aggravation);
(d)injury to right knee (aggravation); and
(e)psychological injuries (exacerbation).
THE MEDICAL EVIDENCE
The Claimant’s post-accident medical evidence
26.The claimant underwent an x-ray of the right knee of 18 January 2017, the day after the accident when it was noted that the total knee replacement was unchanged and satisfactory.
27.The claimant consulted Dr Capa on 19 January 2017. He reported he had sustained injuries to his back, neck, and right knee in the accident. He displayed spinal tenderness and a restricted range of motion.
28.On 20 January 2017 Dr Capa reported complaints of lower back pain and neck pain. On examination he reported spinal tenderness and restriction of range of motion. He recommended physiotherapy and analgesia.
29.On 4 March 2017 the claimant consulted Dr Capa complaining his right knee pain was worse since the accident.
30.The claimant was reviewed by Dr Dowla for his Parkinson’s Disease on 23 March 2017. Dr Dowla reported no significant change since his last review, but he recommended the claimant consult a psychiatrist for his agitation which was affecting his wife.
31.On 25 March 2017 Dr Emin referred the claimant to Dr Chaudhary for his ongoing low mood in accordance with the recommendation of Dr Dowla.
32.On 9 May 2017 the claimant consulted Dr Capa for his chronic lower back pain.
33.The clamant was again reviewed by Dr Dowla on 1 June 2017. He again noted the claimant became agitated at night, he suggested he resume taking Zyprexa and consult a psychiatrist.
34.On 26 June 2017 the claimant complained of neck and arm pain day and night referring to the subject accident and noted he was seeing a lawyer. It was recommended he not lift his hands above arms on a frequent basis and to take analgesia, rest and perform home exercises
35.Dr Dowla in his report dated 20 July 2017 noted that he had been looking after the claimant since 2016, and the claimant had been suffering from Parkinson’s disease and had difficulty mobilising.
36.An x-ray of the right knee dated 21 July 2017 showed the three-compartment knee replacement in situ with no evidence of prosthetic loosening or peri-prosthetic fracturing seen.
37.On 8 August 2017 the claimant saw Dr Emin for acute ongoing chronic lower back pain. Dr Emin recommended the claimant not lift or carry heavy weights, not bend, or twist frequently. He suggested the use of an exercise bike, weight loss and core strengthening exercises.
38.A CT of the lumbar spine dated 8 August 2017 showed mild discovertebral changes with mild central canal narrowing but no neural compromise.
39.On 20 September 2017 the claimant saw Dr Capa for neck pain, lower back pain, and bilateral shoulder pain. He recommended pain reduction education, and low-grade exercise.
40.An ultrasound of the right knee dated 4 October 2017 disclosed a small subcutaneous cyst noted in pre-patellar adipose tissue. On 12 March 2019 Dr Emin, reported that the subcutaneous cyst was not caused by the accident but aggravated by it.
41.Dr Kirsh provided a report dated 13 October 2017, one year post right knee replacement. The claimant reported a tight feeling in the knee and Dr Kirsh reminded the claimant of the need to exercise and attend physiotherapy.
42.Dr Dowla in his report dated 19 October 2017 noted that the claimant was complaining of difficulty with concentration and occasionally dizziness. The paraesthesia and numbness in his left hand was persisting. A nerve conduction study showed mild left median nerve slowing at the wrist, consistent with carpal tunnel syndrome. At that stage, surgery was not recommended.
43.An ultrasound of the left shoulder dated 20 November 2017 showed left subacromial/ subdeltoid bursitis with superimposed adhesive capsulitis and a small intrasubstance tear of the supraspinatus.
44.An MRI of the cervical spine dated 20 November 2017 showed bilateral foraminal stenosis of C5/6 level with impingement of C6 nerve roots, canal stenosis, without cord compression, high-grade left foraminal stenosis of C6/7 level with impingement of the left C7 nerve root.
45.On 6 January 2018 Dr Emin reported the claimant had started physiotherapy. He suggested the claimant reduce his weight, not bend, or kneel frequently, not stand or walk more than 15 minutes, take analgesia, glucosamine and krill oil.
46.A Centrelink Psychological Feedback Report dated 1 June 2018 reported the claimant’s medical conditions included Parkinson’s disease, hearing loss, osteoarthritis all over the body, knee derangement, lumbar spine degenerative change with disc bulging, hyperlipidemia, hypertension, diverticular disease, GORD, L4/5 disc bulging and a Baker’s cyst. The claimant had also been diagnosed with major depressive disorder and generalised anxiety disorder with panic attacks. It was reported following the diagnosis of Parkinson’s disease the claimant became more aggressive, anxious, and stressed. He had never been a social person, but he had become more socially withdrawn and almost housebound and was verbally abusive towards his wife.
47.Psychologist Bestegul Tungandame provided a report dated 1 June 2018. He reported the claimants overall mental and physical health significantly deteriorated after he developed Parkinson’s disease. In relation to self-care and independent living Mr Tungandame reported the claimant needed continuous support with daily activities and self-care. He stated the claimant’s two adult sons have been helping the claimant and his wife with their day-to-day life. In relation to concentration and task completion Mr Tungandame stated:
“Mr Teknikeller has extreme difficulty in concentrating and completing a task that requires attention, reasoning, and decision making for more than five minutes or follow instructions and execute those given instructions due to the severity and frequency of his symptoms.”
48.Dr Dowla in his report dated 22 June 2018 noted that the claimant was having difficulty with concentration and getting agitated at night. Sometimes he was unable to sleep and had an occasional tremor in his left hand.
49.On 19 July 2018 the claimant reported numbness in his left leg. Dr Emin recommended that he follow up with his orthopaedic surgeon.
50.On 10 August 2018 the claimant consulted Dr Ogut complaining of fatigue, on 31 August 2018 Dr Capa reported fatigue and lethargy and on 19 September 2018 Dr Ogut recorded complaints of insomnia and fatigue.
51.A discharge referral from Concord Repatriation General Hospital dated 3 November 2018 noted that the claimant had two coronary stents inserted.
52.Dr Dowla in his report dated 11 January 2019 noted that the claimant had become very still and had difficulty in walking.
53.Commencing in February 2019 the claimant underwent five sessions of physiotherapy with Joanne Duggan following the total right knee replacement.
54.A CT scan of the right hip and lumbar spine dated 27 March 2019 showed lumbar spondylosis, lower lumbar apophyseal joint degenerative change and spondylolisthesis. Low-grade disc bulging was noted in the mid to lower lumbar spine.
55.On 26 March 2019 the claimant reported numbness in his right foot and toes as well as right hip pain.
56.A CT scan of the lumbar spine on 27 March 2019 disclosed lumbar spondylosis, apophyseal joint degenerative change and spondylolisthesis.
57.A CT scan of the lumbar spine dated 26 April 2019 showed minor anterior spondylotic slip at L4-5 level with broad-based disc bulge and face joint arthropathy. There was no evidence of spinal canal stenosis. Clinical correlation was suggested in respect of a L5-S1 level broad-based disc bulge with left lateral protrusion slightly compromising the exiting left L5 nerve.
58.On 1 May 2019 Dr Emin reported complaints of stiffness and pain around the right knee.
59.Dr Dowla in his report dated 2 May 2019 noted that the claimant still complained of dizziness, tiredness and sleepiness, his gait was slow with festination, retropulsion and cogwheel rigidity in both upper limbs.
60.On 5 March 2020 the claimant consulted Dr Emin and reported a burning sensation around the left shoulder and left side of the neck with a prickly sensation. He also reported pain around the left knee with numbness noting he had a total knee replacement two years earlier.
61.Dr Dowla in his report dated 2 July 2020 noted that the claimant had returned from Turkey in February 2020. He restarted Sinemet and his symptoms had improved however he still complained of dizziness, tiredness, and sleepiness. Clinically, he reported slow gait with festination, retropulsion and cogwheel rigidity in both upper limbs.
62.Dr Dowla reviewed the claimant on 20 November 2020 and again on 1 February 2021. The claimant’s symptoms were unchanged.
63.The claimant underwent an x-ray of the right knee on 25 May 2021. Again, no definite cause was apparent for any acute symptomatology. There was no evidence of loosening or periprosthetic fracture.
64.On 10 May 2021 the claimant was reviewed by Dr Dowla. He recorded complaints of dizziness, tiredness, and sleepiness. The claimant had slow gait with festination, retropulsion and cogwheel rigidity in both upper limbs.
The medico-legal evidence
65.The claimant was assessed by Dr Neil Berry, specialist general surgeon. He provided a report dated 15 November 2017. Whilst Dr Berry felt the claimant’s injuries had not stabilised, he expressed the following opinion:
‘Mr Teknikeller has a history of suffering bilateral knee injuries in or about 2010 in the course of his duties as an electrician. He has also had severe chronic pain in the neck, back and shoulders. As reported in his general practitioners notes he was involved in a motor vehicle accident in 2014 which significant (sic) aggravated his pre-existing condition and he has then been involved in a further accident in January 2017.
I would consider that as a result of the 2017 accident that Mr Teknikeller has suffered soft tissue injures to the neck, back and shoulders and the right knee which have reduced his ability to carry out activities of daily living.’
66.The claimant was assessed by Dr Enrico Parmegiani on 20 October 2017. He provided a report dated 20 December 2017. He reported from a psychiatric perspective the claimant had been diagnosed with major depression well before the accident, indeed, he noted clinical records suggested the condition went back as far as 2008 or 2010. He noted treatment with a psychologist with little effect and that the claimant had eschewed the use of antidepressant medication. Whilst the claimant’s symptoms had fluctuated over time, they remained generally of a chronic relapsing and remitting nature.
67.Dr Parmgiani diagnosed a Major Depressive Disorder, of a chronic relapsing type whose symptoms had been made mildly worse by his involvement in the accident. He felt the claimant’s prognosis was guarded based on his poor past treatment response and treatment compliance. Dr Parmegiani did not believe the claimant’s psychiatric injuries had adversely impacted his activities of daily living.
68.The claimant was assessed by Dr Alan Home at the request of the insurer on 18 August 2020. The Claimant reported a sitting tolerance of 15-20 minutes, limited by back pain. He had a similar tolerance for walking, limited by right knee pain and had difficulty climbing stairs. The claimant’s sleep was disrupted by neck and back pain.
69.Dr Home was not satisfied the claimant sustained injury to his right shoulder in the accident, noting he was not driving, and he was wearing a seat belt over his left shoulder. He also noted the history of right shoulder pain and restriction following the 2014 accident. He also noted no change in the range of motion of his right shoulder compared to that noted by Dr Bodel in 2015.
70.Dr Home was also not satisfied the claimant sustained injury to the left shoulder in the accident. Whilst the imaging of the left shoulder in November 2017 demonstrated bursitis and adhesive capsulitis with underlying rotator cuff tendinopathy and degeneration of the AC joint, he concluded those findings were consistent with age- related degenerative changes and capsulitis.
71.Dr Home also noted the complaints of intermittent hand paraesthesia were present prior to the accident and had been the subject of EMG investigation.
72.Dr Home was satisfied the claimant experienced an exacerbation of his lower back condition although he also noted prior to the accident the claimant was markedly symptomatic with chronic low back pain over a long period of time. He also noted the post-accident imaging of the lumbar spine was unchanged from the pre-accident scans of 7 August 2015.
73.Dr Home was also doubtful the claimant sustained any material injury to the right knee in the accident. Even though the clamant recalls striking his knee on the dashboard he did not present with knee pain until two months after the accident. The mild patellofemoral joint crepitus noted by Dr Bodel in 2015 remained unchanged. Dr Home concluded the ongoing complaints relate to the underlying knee joint replacement and any paraesthesia or numbness in the proximal anterior right shin relates to nerve damage arising at the time of the joint replacement.
74.In conclusion Dr Home stated the accident caused no more than a short period of symptom exacerbation of the chronic pre-existing spinal conditions suffered by the claimant. He diagnosed a temporary exacerbation of chronic cervical spondylosis and of chronic lumbar spondylosis.
75.The claimant was assessed by Dr Evan Dryson, occupational physician on 31 March 2021. He provided a report dated 13 April 2021. He reported whilst the claimant had neck pain prior to the accident it has been significantly worse since. He also conceded he had a previous history of low back pain and noted imaging studies had disclosed lumbar spondylosis. The claimant stated he had lower back pain all the time, at a level of 6 or 7 on a pain scale of 0-10. He reported the pain radiated down both legs, he was limited to walking 5 to 10 minutes at a time and had not driven since the accident. He described difficulty negotiating stairs and slopes.
76.Dr Dryson reported both shoulders were painful with reduced range of movement whereas they were only slightly painful prior to the accident. He also reported the claimant’s right knee had been worse since the accident. He also reported the claimant has been depressed and anxious since the accident.
77.Dr Dryson diagnosed:
·aggravation of cervical spondylosis;
·aggravation of lumbar spondylosis;
subscapularis and supraspinatus tendinopathy, right shoulder;
·subacromial-subdeltoid bursitis, right shoulder; and
·aggravation of right knee, previous total knee joint replacement
78.In relation to causation Dr Dryson expressed the following opinion:
‘The history is that neck and low back pain was significantly aggravated by the motor vehicle accident of 17 January 2017. The history likewise indicates that a previous right total knee joint replacement was aggravated in the accident. It is more difficult to be precise about the shoulders. Mr Teknikeller states that he did have pain in the shoulders prior to the motor vehicle accident of 17 January 2017, but that this was not marked. The degree of loss of range of movement in both shoulders is quite significant and is in excess of the degree of pathology shown on ultrasound scan, i.e., supraspinatus and subscapularis tendinopathy and subacromial bursitis on the right and supraspinatus tendinopathy and subacromial bursitis on the left. It may be that referred pain from the neck is further contributing to impaired function in the shoulders. I would, however, recommend MRI scan of both shoulders to further explore what pathology may be causing impairment there. In any event, it does appear likely that identified shoulder pathology will be due to the motor vehicle accident of 17 January 2017, noting the marked deterioration in shoulder function following that accident.’
79.The claimant underwent an x-ray of the right knee on 25 May 2021. No periprosthetic fracture or loosening was apparent and no definite cause was seen for any acute symptomology.
THE INJURY SUSTAINED BY THE CLAIMANT
80.The question is whether the claimant suffered an aggravation of his pre-existing conditions and, if so, whether those aggravation are continuing.
81.The claimant testified he sustained injury to the shoulders, the neck, the back and both knees in the accident. The insurer relies upon the opinion of Dr Home who diagnosed a temporary exacerbation of the chronic cervical and lumbar spondylosis. Dr Home did not accept the claimant sustained any injury to either knee or either shoulder in the accident.
82.There can be little doubt the claimant had a long history of chronic osteoarthritis affecting the neck, the back, both knees, both hips and the right shoulder. Significantly it is apparent from the reports of Dr Dowla that the claimant’s Parkinson’s disease was becoming gradually more symptomatic
83.The right knee replacement surgery occurred approximately 11 weeks prior to the accident. The claimant stated his right knee was recovering well at the time of the accident with a lessening of his pain. However, following the accident the claimant alleges an increase in his pain which has continued due to hitting his right knee on the dashboard.
84.The claimant also stated prior to the accident he was able to do things around the house, albeit slowly. However, he stated since the accident he has not been able to stand for longer than 15 to 20 minutes or bend freely without knee or back pain. The claimant also said he found it necessary to increase his pain killers following the accident.
85.Unfortunately, it is difficult to disentangle the cause of the various complaints. The claimant’s opinion as to causation of his conditions is subjective and not borne out by the objective evidence. For example, the claimant stated he believed the shaking he experienced in his hands and arms was not caused by his Parkinson’s disease because he takes medication for that condition. However, my understanding is that those symptoms are likely to be a result of the Parkinson’s disease.
86.I accept the opinion of Dr Berry, Dr Dryson and Dr Home and find the accident materially contributed to an aggravation of the claimant’s chronic cervical and lumbar spondylosis and that the aggravation is continuing.
87.I also accept that the claimant’s recovery from total right knee replacement surgery suffered a set back when he hit his knee on the dashboard in the accident although it is clear from the available radiology that there has been no loosening or periprosthetic fracture. I find the accident did materially contribute to the ongoing impairment related to the right knee injury.
88.I am not satisfied the claimant suffered any injury to the left knee in the accident having regard to the absence of complaint. The existence of a pre-existing problem with the left knee is established by the x-ray the claimant underwent one week prior to the accident.
89.The claimant alleged he sustained injury to both shoulders in the 2014 accident although only injury to the right shoulder was addressed by Dr Guirgis and Dr Bodel. Following the accident, the first notable complaint of bilateral shoulder pain was on 20 September 2017, although in his medical certificate dated 10 March 2017 Dr Capa referred to bilateral shoulders. Dr Home concluded there was no injury to the right shoulder because the claimant was wearing a seat belt over his left shoulder and he concluded the changes to the left shoulder which were apparent on the 20 November 2017 ultrasound were consistent with age-related degenerative changes and capsulitis. Dr Dryson was also equivocal about causation of the shoulder pain and recommended further investigation. On the balance of probabilities and having regard to the lack of complaint following the accident I am not satisfied the accident contributed to the claimant’s current shoulder conditions.
90.In relation to his psychological injury and, having regard to the reports of Bestegul Tungandame dated 1 June 2015 and 1 June 2018, I accept the opinion of Dr Parmegiani that the claimant’s pre-existing major depressive disorder, was only made mildly worse by his involvement in the accident.
THE ASSESSMENT OF DAMAGES
Past treatment expenses
91.Past treatment expenses were agreed mathematically in the sum of $2,026.20. There is a dispute as to whether these treatment expenses are causally related to the accident.
92.The sum of $1,230 is claimed for psychological services on 11 and 29 August 2017, 24 October 2017, and 21 November 2017. I propose to allow 50% of the sum claimed for those psychological services on the basis the accident resulted in the mild worsening of the claimant’s major depressive disorder. I otherwise find the need for counselling is related to the claimant’s pre-existing conditions including his Parkinson’s disease. I allow the sum of $615.
93.A claim is made in the sum of $402.75 incurred with Auburn Medical Imaging. The sum of $152.75 is not allowed where it relates to the ultrasound of both shoulders on 20 November 2017. However, I allow the sum of $250 in respect of an MRI of the cervical spine on 20 November 2017.
94.A claim is also made in the sum of $393.45 in respect of items identified by the claimant on the Medicare claims history statement as related to the accident. Those items relate to treatment by Dr Emin and Dr Capa. Having regard to my findings on causation I propose to allow 50% of the sum claimed in the sum of $196.73.
95.Accordingly, I allow the total sum of $1,061.73 in respect of past treatment expenses.
Future Treatment Expenses
96.A claim for future treatment expenses is made in the sum of $15,000 to cover the ongoing cost of general practitioner visits, specialist reviews, physiotherapy and hydrotherapy, potential injections, medication and possible surgery.
97.Dr Berry concluded on 15 November 2017 that the only treatment likely to be of benefit was simple analgesics.
98.Dr Dryson recommended steroid injections for both shoulders and raised the possibility of surgery, namely, rotator cuff repair and/or decompression of the subacromial space. Otherwise, he recommended a home-based exercise program and ongoing analgesia. Having regard to my findings as to causation of the shoulder injury I do not propose to make any allowance for the cost of shoulder surgery.
99.Dr Home concluded there were no ongoing treatment needs arising from the accident, noting the claimant was already taking regular paracetamol prior to the accident. It is apparent from the clinical notes of Main Street Family Medical Centre that the claimant had been prescribed Panadeine Forte and Endone prior to the accident with the former being prescribed on a regular basis since at least 18 February 2016.
Having regard to my findings as to aggravation of the claimant’s chronic cervical and lumbar spondylosis, the aggravation of his right knee condition and the mild aggravation of his major depressive disorder I consider it appropriate to award a small buffer for future treatment, be it for a supervised exercise program which may then revert to a home-based exercise program, the cost of further investigation and medical review. I consider an appropriate buffer to be the sum of $5,000.
Future commercial assistance
A claim for future commercial assistance is made at two hours per week at an hourly rate of $45 to $50 for the remainder of the claimant’s lifetime.
The insurer submits there is no need for care on the basis there is no evidence of functional disability caused by the accident. The insurer submits that any difficulty with kneeling is caused by the claimant’s pre-existing knee conditions and any difficulty with lifting is due to the claimant’s pre-existing shoulder conditions.
At the time of the accident the Claimant resided at Bossley Park with his wife in a two storey, five-bedroom, three-bathroom house on over 600 sq metres.
In his statement dated 28 September 2020 the claimant asserted prior to the accident he assisted his wife with cleaning, vacuuming, mopping, scrubbing some of the bathrooms, the gardening and general maintenance. He states his wife has her own medical conditions and relied upon assistance from the claimant.
Following the accident, the claimant stated he relied upon his son, Soner to undertake those domestic and external chores. He estimated Soner was providing assistance of approximately 21 hours per week. However, since then the claimant has downsized. In November 2020 the claimant and his wife moved to a two-bedroom unit at Brighton- Le-Sands. He no longer requires assistance with gardening and general maintenance.
The claimant’s son, Soner is now his Centrelink approved carer.
Dr Berry reported on 15 November 2017 that prior to the accident the claimant had regained the ability to mow the small amount of lawn so long as he did it slowly. However, since the accident the claimant had become entirely dependent on his sons to do the outside activities whilst his wife undertook the inside activities. He suggested an allowance of two hours per week for domestic help and assistance would be appropriate.
Dr Home reported the medical file indicates the claimant undertook very little domestic activity before the accident. He concluded the claimant did not require any additional assistance as a result of the accident. Whilst the claimant was incapable of undertaking heavy domestic chores Dr Home states that was as a result of his established, multiple medical complaints.
At the time of his assessment on 31 March 2021 Dr Dryson noted the claimant was living in a two-bedroom house. He reported the claimant was no longer able to assist his wife doing household activities and noted the claimant’s son comes in over the weekend to render assistance including preparing meals. He estimated four hours of domestic assistance would be reasonable.
The question is whether the aggravation of the claimant’s chronic cervical and lumbar spondylosis and the aggravation of his right knee condition has resulted in a need for domestic assistance.
At the assessment conference the claimant elaborated on his wife’s medical conditions which impair her capacity to undertake domestic tasks. He also confirmed he no longer drives and has not done so since the accident. The claimant described difficulty standing for long periods, difficulty bending and difficulty kneeling. Undoubtedly these limitations would impact on the claimant’s functional capacity. I accept he requires assistance with shopping, heavy domestic chores and those tasks which require him to stand for long periods such as cooking.
However, it is also clear the claimant has sustained a significant loss of functional capacity because of his worsening Parkinson’s disease, his bilateral shoulder condition and his underlying pre-existing cervical and lumbar spondylosis and his pre-existing right knee condition. Taking the claimant’s pre-existing conditions into account I am satisfied there has been an increased need for domestic assistance as a result of injury sustained in the accident.
Whether or not there is a need for future care the Court of Appeal made it clear in Miller v Galderisi [2009] NSWCA 353 that one of the matters to take into consideration when assessing the need for future commercial care is whether that need is likely to arise because the availability of gratuitous assistance is likely to cease.
I am satisfied a need for future commercial care is likely to arise. Soner resides at Blacktown and not within close vicinity of the claimant’s home. The claimant’s evidence was that his son Soner is shortly to become a father. It is likely with his increased family responsibilities Soner is less likely to be available to provide gratuitous assistance.
I consider an appropriate allowance for the increased need for assistance resulting from the accident to be no more than one hour per week. I only propose to assess damages in respect of the need for assistance for the next 13 years until the claimant reaches 80 years of age. Thereafter, I consider any need for domestic assistance will arise by reason of the claimant’s inexorable Parkinson’s disease and his underlying conditions. I assess the cost of commercial care at $45 per hour.
I calculate future commercial care at $45 per hour x 502.3 (the multiplier for 13 years on the 5% tables) in the sum of $22,603.50. I assess damages accordingly.
ASSESSMENT OF DAMAGES SUMMARY
I assess the claim as follows on the findings set out above:
Past treatment $1,061.73 Future treatment $5,000.00 Future commercial care $22,603.50 TOTAL DAMAGES ASSESSED $28,665.23
COSTS AND DISBURSEMENTS
There is a dispute in relation to the claim arising out of the medical dispute. The insurer states no allowance should be made on the basis the claimant requested the matter proceed to assessment without the treatment dispute being determined. However, having regard to the delay which have resulted from the COVID-19 pandemic I was not prepared to delay the assessment of the claim where I was able to assess the treatment dispute. Noting the application had been filed by the insurer and a reply filed by the claimant I am of the view the claimant should be entitled to recover costs in relation to the medical dispute. Noting the medical assessment had not taken place I propose to allow $800 out of the maximum payable of $1,000.
I propose to allow an additional two hours at $300 per hour for legal representation at the assessment conference noting the matter did not conclude until 1.40 pm.
There is also a dispute in relation to the claim for conferences. A claim is made for five conferences whilst the insurer is prepared to concede three. I propose to allow four conferences.
There is agreement as to the claim for three medico-legal specialist reports in the sum of $1,200 each. However, the insurer seeks to recover a non-attendance fee in the sum of $900. That fee has not been disputed by the claimant. Accordingly, I propose to reduce the costs payable for the medico-legal specialist reports from $3,600 to
$2,700 to take into account that non-attendance fee.
There is no dispute in relation to the claim for clinical notes and I allow the agreed sum of $809.60.
The other area of dispute relates to the claim for interpreter fees in the total sum of
$7,260 for services provided by Arslan Enterprises. The fees relate to 20 attendances. The insurer submits the claim is excessive. On the one hand it is imperative that the claimant have access to interpreting services to facilitate his access to justice and to ensure he is aware of his rights. On the other hand, the insurer should not be held liable for unnecessary services which may more properly be considered solicitor/client costs. I note the claim form is dated 8 June 2017 and there are three attendances prior to that date. I note the necessity to use an interpreter at each of the three medico-legal assessments, in obtaining instructions to reply to further and better particulars, in obtaining instructions to draft the claimant’s statement and at the time of reviewing and signing the statement. An interpreter would also be required when settlement discussions ensued and to enable the claimant to confer with counsel. Taking those matters into account it seems to me the claim is excessive. I propose to allow the sum of $4,000 for interpreter fees.
I otherwise assess the claimant’s costs in accordance with the attached Damages and Costs Calculator.
Susan McTegg
Member (Motor Accidents Division) Personal Injury Commission
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