Telebrico v QBE Insurance (Australia) Limited
[2023] NSWPIC 268
•5 June 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Telebrico v QBE Insurance (Australia) Limited [2023] NSWPIC 268 |
| Claimant: | Ma Trinidad Telebrico |
| insurer: | QBE Insurance (Australia) Limited |
| Member: | Gary Victor Patterson |
| DATE OF DECISION: | 5 June 2023 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act2017; assessment of claim for damages; section 7.36(4); claimant a married 50-year-old woman; involved in a motor accident; rear-end collision with the claimant’s vehicle whilst stationary at lights; five vehicles involved; airbag did not deploy; the insurer admitted liability for the claim and paid statutory benefits; claimant suffered injuries to neck, right shoulder, right arm, left shoulder and back; past economic loss; past superannuation; Fox v Wood damages; future loss of earning capacity; Held – the amount of damages assessed in respect of this claim is $251,421; economic loss is reduced by statutory benefits paid under section 4.10; orders for costs. |
| determinations made: | CERTIFICATE OF DETERMINATION Issued under s 7.36(4) of the Motor Accident Injuries Act2017 Assessment of Claim for Damages made under Division 7.6 of the Act The findings of this assessment are as follows: 1. The amount of damages assessed in respect of this claim is $251,421. 2. The claimant’s economic loss is reduced by, and the insurer is to have credit for, the sum of $19,406.76, being the total of statutory benefits made to the claimant, in accordance with s 4.10 of the Act. 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 Motor Accidents Injuries Regulation 2017 is $36,104.86 inclusive of GST. |
Reasons for Decision – General Assessment
Common law claim - Motor Accident Injuries Act 2017
Introduction
Ma Trinidad Telebrico (the claimant) is a married woman 50 years of age who lives in a freestanding home with her husband and two of her three children. The claimant was born in the Philippines and completed her secondary education there. The claimant obtained a Diploma in Industrial Instrumentation and worked full-time as a mechanical fitter. The claimant came to Australia in 2004 when she was expecting her youngest child. The claimant’s husband works full-time with Sydney Trains as a customer service representative. The claimant is right-hand dominant.
The motor accident occurred on 28 February 2018 on Victoria Road at Rydalmere. The claimant was the seat-belted driver of a Mitsubishi 4-wheel drive which was stationary at traffic lights. It was in the middle of three lanes. As she was about to move, after the traffic lights changed to green, the insured vehicle collided with the rear of the claimant’s vehicle. The claimant’s vehicle was pushed into the vehicle in front of it. There were five vehicles involved. The airbag did not deploy. The claimant’s vehicle sustained damage to the front and rear. It subsequently was repaired. Ambulance officers attended the scene but the claimant was not assessed. She was taken home by her husband. Police did not attend. The insurer admitted liability for the claim and paid statutory benefits.
The claimant says that she sustained injuries to the following body parts in the motor accident:
(a) Neck.
(b) Right shoulder with partial thickness supraspinatus tear.
(c) Right arm.
(d) Left shoulder.
(e) Back.
The insurer disputes the extent and duration of those injuries.
The claimant was assessed on 8 March 2022 by Medical Assessor Alan Home who certified that the claimant did not exceed the 10% whole person impairment threshold. The claimant concedes there is no entitlement to non-economic loss.
At the time of the motor accident, the claimant was employed full-time as a Packaging Coordinator with a large pharmaceutical company. The claimant had been in that employment for 13 years. She had commenced as an entry-level process worker and had been promoted a number of times. That employment ceased in December 2020 when the claimant was retrenched. Her employer ceased its Sydney operations. The claimant concedes that her retrenchment was unrelated to the motor accident. The claimant received a substantial redundancy payment.
The claimant then obtained casual employment in a quality assurance position with another medical products producer. The claimant resigned that employment after some weeks in circumstances which are disputed. The claimant says that she was unable to undertake heavy lifting due to her injuries sustained in the motor accident. The insurer says that her resignation was due to causes unrelated to the motor accident. The claimant remained off work until she found a temporary position with the Australian Electoral Office in April last for a few weeks.
AGREED MATTERS
The parties agreed the following matters:
| Description | Agreement | |
| 1. | Date of Accident | 28 February 2018 |
| 2. | Date of Birth | 29 September 1972 |
| 3. | Life expectancy | 36 years |
| 4. | 5% Multiplier for life expectancy | 885 |
| 5. | Working life expectancy | 17 years |
| 6. | 5% Multiplier | 603 |
| 7. | Date of Redundancy | 23 December 2020 |
| 8. | Weekly payments of statutory benefits | $19,406.76 |
| 9. | Fox v Wood | $2,765 |
| 10. | Vicissitudes | 15% |
| 11. | Superannuation on past lost of earnings | 11% |
| 12. | Superannuation on future loss of earnings | 12% |
| 13. | Earnings at time of motor accident | $1,300 net per week |
| 14. | Future loss of earnings | $650 net per week |
ISSUES IN DISPUTE
The following issues arise for my determination in this matter:
(a) The medical consequences of the motor accident / ISSUE 1.
(b) Amount of past economic loss / ISSUE 2.
(c) Amount of damages for future loss of earning capacity / ISSUE 3.
In her opening address, Ms Welsh said that there are causation and credibility issues.
DETERMINATION OF ISSUE 1 – THE MEDICAL CONSEQUENCES OF THE MOTOR ACCIDENT
Assessment of the claim requires, amongst other things, a consideration of the medical evidence.
There is a letter dated 12 November 2021 from the treating neurosurgeon, Dr Jacqueline McMaster to the treating general practitioner (GP), Dr Ang. Dr McMaster reports that the claimant continues to be troubled by ongoing neck and shoulder pain and refers to a large C4/C5 disc prolapse. Dr McMaster felt that a C4/C5 anterior cervical discectomy and fusion was required. In her initial report dated 27 March 2018, Dr McMaster expressed the view that the claimant sustained a neck injury, likely the C4/C5 disc prolapse, seen on her MRI scan.
There is a report dated 11 April 2019 by Dr Peter Conrad, surgeon, to the claimant’s lawyers. He records complaints of pain in the neck, restriction of right shoulder movement, pain and stiffness in the lumber spine. Dr Conrad took a history of no previous significant accidents or pain in the neck, right shoulder or back. Dr Conrad opined that the claimant sustained a significant neck injury with a C4/C5 disc prolapse, which is continuing to cause pain and radiculopathy into the right shoulder and arm. He found a partial supraspinatus tendon tear shown on ultrasound and a back injury. Dr Conrad found 10% whole person impairment in the cervical spine, 5% whole person impairment in the back and 4% whole person impairment in the right shoulder, giving a combined 18% whole person impairment.
In a supplementary report dated 11 May 2021, Dr Conrad reviewed various diagnostic scans of the cervical spine. They did not cause him to alter his opinions in relation to conservative treatment, work capability and whole person impairment. Dr Conrad emphasised that the C4/C5 disc prolapse is very significant and thought that the claimant had deteriorated since she was last seen. In his final report dated 10 June 2022, Dr Conrad re-states the opinions previously expressed, re-assesses whole person impairment at 17% and says that there is no evidence of pre-existing degenerative disease or other accidents. I do not accept the last finding as it is contrary to the weight of the medical evidence.
Dr Conrad does not state the basis for his finding of radiculopathy. He does not say whether his finding of a partial thickness supraspinatus tear in the right shoulder is accident-related or pre-existing. His opinion as to the cause of the C4/C5 disc prolapse accords with that of Dr McMaster.
There is a report dated 21 October 2020 by Dr John Bosanquet, consultant orthopaedic surgeon, to the insurer’s lawyers. Dr Bosanquet notes that the claimant went home after the motor accident and later went to a medical centre with pain in her right shoulder and neck. The claimant was off work for a total of six weeks. Her only treatment had been physiotherapy and analgesics.
Dr Bosanquet notes a previous accident in 2011 which caused no specific injuries. He noted the claimant’s hypertension and diabetes, as well as her medications.
Dr Bosanquet conducted a physical examination of the cervical spine and both shoulders. It does not appear that he examined the knees and lumber spine. He reviewed a number of diagnostic scans of the cervical spine and right shoulder. Dr Bosanquet opined that the claimant sustained a soft tissue injury to her cervical spine and both shoulders, with aggravation of underlaying degenerative changes, in each area. Dr Bosanquet thought that the diagnostic scans confirmed the existence of pre-existing degenerative changes in the cervical spine and right shoulder.
In a separate report, Dr Bosanquet assessed 5% whole person impairment for the cervical spine and 4% whole person impairment for the shoulders. He attributed all of those impairments to pre-existing degenerative changes and ascribed no whole person impairment to the motor accident. For reasons that are not apparent, Dr Bosanquet’s report is served in the claimant’s case.
Medical Assessor Alan Home assessed the claimant on 24 February 2022 and certified as follows:
The following injuries caused by the motor accident give rise to a permanent impairment of 9% and IS NOT GREATER THAN 10%:
· Cervical spine.
· Lumbar spine.
· Right shoulder.
· Left shoulder.
The following injuries caused by the motor accident have resolved and DO NOT RESULT IN PERMANENT IMPAIRMENT:
· Left knee.
· Right knee.
An assessment of degree of permanent impairment of these injuries is therefore not required.
Medical Assessor Home made the following assessments of WPI due to the motor accident:
The body parts
Percentage (%)
Cervical spine
5
Lumbar spine
0
Right shoulder
2
Left shoulder
2
Total
9% of WPI
Medical Assessor Home made no deduction for pre-existing or subsequent causes. Nor did he make any adjustment for treatment effects.
Medical Assessor Home found soft tissue injury to the cervical spine underlying degenerative changes at C3/C4 to C5/C6. He found limited left shoulder motion secondary to the neck injury. Medical Assessor Home found a soft tissue seat-belt injury to the right shoulder and a soft tissue injury to the lumbar spine.
Medical Assessor Home opined that a carpal tunnel syndrome complaint in the neck is not related to the motor accident. He expressed no view as to the need for future decompressive surgery for the cervical spine.
The findings of Medical Assessors Home and Bosanquet are similar. Both find soft tissue injury to the cervical spine with underlying degenerative changes at C3/C4 to C5/C6. Neither of them is of the opinion that the C4/C5 disc prolapse, as shown on the MRI scan performed on 14 March 2018, is related to the motor accident. Dr Conrad says that the claimant sustained a significant neck injury with a C4/C5 disc prolapse which, he says, “is continuing to cause her pain and radiculopathy into her right shoulder and right arm”.
Although neither party directed submissions to the issue, I am satisfied that the claimant suffered more than minor (threshold) injuries, as defined by s 1.6 of the Motor Accident Injuries Act 2017, for the purposes of an award of damages pursuant to s 4.4 of that Act. It is implicit in the parties’ submissions, as to the damages that should be awarded, that there is no dispute in relation to the claimant’s suffering more than minor injuries.
DETERMINATION OF ISSUE 2 – PAST ECONOMIC LOSS
Details of the claimant’s post-accident employment history are recited in paragraphs 5 and 6 of this Reasons which need not be repeated.
The claimant says that, but for the motor accident, she would have remained in the employ of Baxter Healthcare and probably would have been promoted, notwithstanding the onset of the COVID19 restrictions. Past economic loss is claimed for the period of four weeks off work after the accident, reduced hours up to and including the period of employment with Baxter Healthcare and then the whole period up to the date of assessment. The amount claimed is about $240,000 after adjustments are made for the reduced agreed weekly rate.
The insurer assesses the past economic loss claim as follows:
A loss of $1,360 net per week from 1 March 2018 to 1 April 2018 (4 weeks)
$5,440
An average loss of $640 net per week (a loss of 16 hours per week) from 2 April 2018 to 1 June 2018 (8 weeks)
$5,120
Total
$10,560
The insurer makes no allowance for any losses after 1 June 2018 when the claimant returned to her pre-injury hours as a packaging coordinator.
The insurer says there is no evidence to support the alleged ongoing loss of $500 net per week from 1 June 2018 to February 2021 (after her redundancy from GlaxoSmithKline), or the alleged loss of $750 net per week from February 2021, until the cessation of her employment by Baxter Healthcare Australia. I accept that submission.
It also is submitted by the insurer that no allowance should be made for any loss of income from the end of December 2020 to February 2021, as any loss of income was due to the decision by the claimant’s pre-injury employer, GlaxoSmithKline, to cease its operation in Sydney. As the claimant accepts that her redundancy was unrelated to the motor accident, I accept that submission.
The insurer notes that the claimant’s treating GP certified her fit for normal duties on 30 May 2018 which continued until her redundancy. The insurer does not dispute the periods of unemployment thereafter but submits they were not caused by the motor accident. The insurer says that the claimant chose to resign her employment with Baxter Healthcare due to a death in her family, as well as the COVID19 restrictions, which the claimant disputes.
The claimant says, at paragraph 20 of her first statement, that she was unable to undertake heavy lifting, upon her return to work, following the motor accident. She “continued to work in a way in which I could avoid lifting” for the remainder of her time in that employment. Dr McMaster reports that the claimant’s job did not involve heavy lifting with a 5 kilograms limitation.
At paragraph 31 of that statement, the claimant says that she can no longer do a variety of jobs in the production line, which she was capable of doing before the accident. She is limited to supervisory work with almost no work on the production line. The claimant says that she applied for more than 20 jobs, before obtaining her employment with Baxter Healthcare, following her being made redundant by GlaxoSmithKline.
In her further statement made on 11 April last, the claimant says, at paragraph 4, as follows:
“I ceased that employment on 26 March 2021 because the work was too heavy for me. My role included having to dismantle sections of the production line, which included large components, that I would estimate weighed over 10 kilograms. Lifting them caused me to feel severe pain in my neck and arms.”
The claimant says that she “did not want to tell my employer or the recruitment agency the reason why as I was leaving”. The claimant did not seek modified duties nor alternative work with that employer.
The claimant did not apply for work until later in 2021 because of the COVID19 lockdown. When she began to apply for work through an agency, she says that she was disadvantaged by having to reveal that she had suffered injuries in a motor accident. The claimant says that she had to decline some jobs because they involved heavy lifting.
A problem for the claimant is that, on several occasions, she gave a different reason for leaving her employment with Baxter Healthcare.
In her report dated 12 November 2021 to the treating GP, Dr McMaster states that the claimant was managing her previous job with pain relief for about six weeks, “but she had to stop it due to family matters and then the COVID19 lockdown”. In fairness to the claimant, I note that Dr McMaster recorded that she continued to be troubled by ongoing neck and shoulder pain.
In response to questioning by Ms Warren, the claimant could give no explanation for her telling her treating neurosurgeon that she left her employment because of family reasons and the COVID19 lockdown, rather than any difficulty in performing the work.
In his Reasons dated 7 March 2022, Medical Assessor Home records as follows:
“She ceased work in March 2021 due to a death in the family. She did not return to work following the COVID19 shutdown. She is currently seeking further employment.”
The claimant did not deny giving that information to Medical Assessor Home nor its accuracy.
In response to questioning on that topic by Ms Warren, the claimant conceded that she was coping with eight hour shifts at Baxter Healthcare (from 3.00pm to 11.00pm) until she was asked to lift a heavy piece of machinery on the day (my emphasis) that a family member died. As she had not informed her employer about the injuries she sustained in the motor accident, the claimant chose to resign.
Having considered the evidence carefully, I am not satisfied that the claimant’s accident-related injuries and disabilities were the sole, or even the major, reason for her voluntarily leaving her employment at Baxter Healthcare. I find the claimant’s evidence, in relation to this aspect of her claim, to be unconvincing. I think that her main reason was the death in her family. Another reason may have been the fact that the economic consequences of her leaving her employment could have been tempered somewhat by the redundancy payment which she received a few months previously. As the claimant concedes, she then was caught by the COVID19 restrictions.
Whilst I accept that the claimant felt some discomfort in performing her duties, there is no evidence that the system of work was such that it could not be modified to cope with the claimant’s difficulty in lifting heavy items, from time to time. The claimant made no such request. Whist the motor accident may have been a contributing cause to the claimant’s decision to give up her employment, I am not satisfied that it was more than negligible. See cl 6.7 of the Motor Accident Guidelines.
To her credit, the claimant used her time wisely during the COVID19 lockdown period. She applied for TAFE scholarships successfully. The claimant completed a Legal Studies course from July to November 2021 online. She has enrolled in a Bachelor of Criminology course at Swinburne University online. It may convert to a Law degree in due course. The claimant is progressing well with her studies.
I accept the claimant’s evidence about her difficulties in obtaining employment due to her difficulties with heavy lifting. I accept that she is at a disadvantage in the open labour market. I accept also that she has attempted to mitigate her loss by undertaking further tertiary studies. That is to her credit.
Taking into account that the claimant chose to leave her employment with Baxter Healthcare and the effects of the COVID19 lockdown, I think it is appropriate to allow economic loss for the period from March 2022 to the date of assessment, in addition to the time off work following the motor accident. That loss is calculated as follows:
$1,300 x 4 weeks
$5,200
$650 x 12 weeks
$7,800
1 March 2022 to 24 April 2023 - $1,300 x 60 weeks
$78,000
Total
$91,000
After deducting $2,200 for the claimant’s earnings at AEL, I allow $88,800 for past economic loss. Additionally, I allow $9,768 for past superannuation at the agreed rate of 11% of the past loss of earnings. Additionally, I allow $2,765 for the agreed Fox v Wood component.
DETERMINATION OF ISSUE 3 – FUTURE LOSS OF EARNING CAPACITY
The claimant seeks an award at the accepted rate of $650 net per week for the next 17 years. The calculation is as follows:
$650 per week x 603 (agreed 5% multiplier) x 0.85 = $333,157.50
The sum of $39,978.90 is claimed for future superannuation at the agreed rate of 12% on the net loss.
It is submitted for the claimant that a buffer is likely to significantly undercompensate her loss. Ms Welsh submitted that the claimant may have surgery to her cervical spine which could end her career. It also is submitted for the claimant that, if past efforts to find work are a guide, she may not find work in the future.
The claimant conceded that Dr Ang will not provide a work clearance until her claim is resolved.
It is submitted for the insurer that the claimant’s most likely circumstance, but for the motor accident, is to continue to work as a packaging coordinator, or in a quality assurance position. I do not accept that submission. I think that it is just as likely, if not more so, that the claimant would have pursued further studies, absent the motor accident, as has proven to be the case.
The insurer’s primary submission is that no allowance should be made for future economic loss. The insurer’s secondary submission is that, if I accept that the claimant has sustained an impairment in her future earning capacity, as a result of the motor accident, then it is appropriate to assess this head of damage on a buffer basis. An amount of $100,000 is suggested.
The insurer relies upon Ms Amy Seskin, rehabilitation consultant, at ProCare Injury Management, who reported in August 2019 that the following roles are suitable for the claimant, based on her education and work experience:
·Manufacturing Coordinator and Administrator, earning $988 per week.
·Logistics and Order Clerk, earning $1,064 per week.
·Quality Control, earning $995.50 per week.
That evidence is consistent with the opinions expressed in December 2022 by a number of reporters from the Vocational Capacity Centre who were qualified by the insurer. I accept those opinions as the claimant has provided no persuasive evidence to the contrary.
I note that the claimant has good computer and work processing skills. In her oral evidence, the claimant conceded that she could work as a paralegal or a personal assistant in a law firm, using a laptop or a personal computer. Although there is no evidence on the point, I think that the claimant’s potential earnings in a law firm would at least equal the potential earnings that Ms Seskin identifies.
Based upon the claimant’s current course of studies, I think it is likely that she will qualify to practice as a solicitor, or to work as a clerk or a paralegal, within the legal services industry. That is not likely to occur, for some years. To the extent that Ross Girdler, rehabilitation counsellor, is of the contrary opinion, I do not accept the assumptions upon which his opinion is based.
Having considered all of the evidence, I am satisfied that:
(a) at the time of the motor accident, the claimant had an unrestricted earning capacity;
(b) her earning capacity has been reduced by reason of the injuries caused by the motor accident, especially as they overlay underlaying degenerative changes in her cervical spine and shoulders, and
(c) the reduction in her earning capacity is likely to be productive of future economic loss.
I already have stated my findings as to the claimant’s most likely future circumstances, but for the injuries.
I am mindful of what has been said by the Court of Appeal about the desirability of adopting an arithmetic approach, instead of a buffer, in the calculation of future economic loss. See Allianz Australia Insurance Limited v Cervantes [2012] NSWCA 244, Allianz Australia Insurance Limited v Sprod [2012] NSWCA 81 and Allianz Australia Insurance Limited v Shamoun [2013] NSWSC 579. In the circumstances of this case, the claimant contends for an arithmetical calculation, whereas the insurer contends for a buffer.
Given the imprecision of the evidence and the large number of contingencies, having regard to the claimant’s age, I propose to compensate her reduction in earning capacity by means of a buffer.
Taking all those matters into account, I allow $150,000 as a buffer, for future loss of earning capacity. That is inclusive of an allowance for superannuation foregone.
ASSESSMENT OF DAMAGES SUMMARY
I assess the claim as follows on the above findings:
Past economic loss
$88,888
Past superannuation
$9,768
Fox v Wood
$2,765
Future loss of earning capacity
$150,000
TOTAL DAMAGES ASSESSED
$251,421
The claimant’s economic losses are to be reduced by and the insurer is to have credit for the sum of $19,406.76, being the total of statutory benefits paid to the claimant, in accordance with s 4.10 of the MAI Act:
Section 4.10 statutory benefits $19,406.76
COSTS AND DISBURSEMENTS
I assess the claimant’s legal costs and disbursements in accordance with the attached sheet.
0
3
0