Walker v AAI Limited t/as GIO
[2024] NSWPIC 253
•16 May 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Walker v AAI Limited t/as GIO [2024] NSWPIC 253 |
| CLAIMANT: | Justin Walker |
| INSURER: | AAI Limited t/as GIO |
| MEMBER: | Elyse White |
| DATE OF DECISION: | 16 May 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claimant involved in a significant impact when forced head on into a power pole; had previous history of drug abuse; 10 years pre-accident claimant underwent intensive rehabilitation and had been abstinent until around the time of the accident; dispute on cause of relapse, post-accident criminal offences and inappropriate work relationship in breach of terms of employment; claim for past and future economic loss and superannuation; due to intervening events earning capacity difficult to accurately assess; buffers assessed considering claimant’s accident related injuries, age and prospects of future capacity; Held – damages assessed in the sum of $165,000 for past and future economic loss and superannuation pursuant to section 7.35(1) and section 7.36. |
| DETERMINATIONS MADE: | CERTIFICATE 1. Issued pursuant s 7.35(1) of the Motor Accident Injuries Act 2017 (the Act). 2. Assessment of damages in the sum of $165,000 is made in accordance with s 7.36 of the Act. 3. The amount of the claimant’s costs in accordance with the Act is $42,257.60. |
STATEMENT OF REASONS
INTRODUCTION
The claimant, Mr Justin Walker says he was injured in a motor vehicle crash along O’Riordan Street, Alexandria when the insurer driver, without warning, changed lanes and pushed his vehicle off the roadway into a power pole.
He has made a claim for common law damages pursuant to the Motor Accident Injuries Act 2017 (Act).
The insurer, AAI Limited t/as GIO wholly admitted liability for the crash and paid statutory treatment expenses. The insurer confirmed no statutory benefits were paid to the claimant.
As a dispute arose between the claimant and the insurer about his entitlement to damages for non-economic loss, a number of applications were lodged in the Personal Injury Commission (Commission). Certificates issued by Medical Assessors conclude the claimant’s whole person impairment (WPI) percentage is not greater than 10%. As such, he is not entitled to damages for non-economic loss.
ISSUES
The following issues arose:
(a) what is the nature and extent of the claimant’s injuries sustained in the accident and was the claimant’s relapse into drug addiction caused by the accident?
(b) Has the claimant established an impairment to his work capacity which is productive of past and future economic loss and superannuation?
What is the nature and extent of the claimant’s injuries sustained in the accident and was the claimant’s relapse into drug addiction caused by the accident?
Mr Walker told me on the evening of the accident, he had dropped a friend to the airport at Mascot and was on his way home. He was driving his mother’s Mercedes in the lane closest to the gutter. Travelling along side in the lane next to him was a large Range Rover. The Range Rover without warning changed lanes which forced Mr Walker out of his lane and head on into a telegraph pole.
The force of the collision deployed the airbags. Momentarily he was unsure what had happened. He managed to extricate himself from his vehicle. He said he found difficulty standing.
Although the police and ambulance attended the scene, Mr Walker refused the suggestion he should be conveyed to the hospital for observation. The tow truck driver dropped him off at the closest railway station. The Mercedes was written off.
The next day he attended one of his general practitioners and gave a history of the accident.
General practitioner Dr Shafiatul Alam recorded the consultation on 11 January 2018 at 17:11:59 hours. The history reported in summary, a motor vehicle accident yesterday; no loss of consciousness; bruise dorsum on the right hand; worse muscle pain; neck, shoulder, calf and swelling dorsum of the left hand and tender; C5 tender no clavicle fracture. The doctor noted a big sudden impact.
In support of his claim, Mr Walker has signed two statements. The first is dated 24 October 2020 and the recent update is dated 28 March 2024.
In the first statement at paragraph 16, Mr Walker says before this accident he was in good health, physically and mentally. He was not using drugs and was committed to his work as a therapist.
He does admit he was having some low-level anxiety for which he had been prescribed Valium to control his anxiety. It was put squarely to Mr Walker by Mr Guihot, that he had deliberately downplayed his pre-accident psychological conditions to enhance his prospects of seeking maximum damages.
Mr Walker denied this was the case and at every opportunity during questioning on this topic would attempt to minimize any suggestion his reported pre-accident emotional difficulties were minimal compared to what he has suffered since the accident. An example of this minimization is when Mr Guihot put to him the panic attacks he reported to Dr Alam from Unique Medical Practice Ingleburn on 13 April 2017. Mr Walker answered “Yeah, but I did not know what a panic attack was until after the accident. These were minimal compared to what has happened since the accident. Now I know what a real panic attack is like”.
Other examples brought to the attention of Mr Walker are the histories given to doctors. When asked about his past-accident history, he told Medical Assessor (MA) Barrett on 13 and 29 September 2021 he had no pre-accident medical history. He had good self-esteem and denied a history of impulsivity. He acknowledged depression at age 27 years due to a long-term relationship break-up. He revealed a history of drug taking and criminal offences for a 10-year period in the 2000’s. After rehabilitation, he secured a job as a counsellor and told the MA he felt awesome about himself.
When MA Barrett raised with him entries in his general practitioner’s notes, he acknowledged he was struggling a little with relationship stressors and a new job role. She further raised with him the large number of prescriptions of diazepam issued by the doctor. He responded that he had told the doctor these were helping but he denied filling these scripts and stated he started giving the medications away.
Mr Guihot presented the prescription history from the Pharmaceutical Benefits Scheme listing prescriptions filled by Mr Walker which confirms the majority of these were filled. He put to Mr Walker he had not been truthful when giving this history to the MA. He responded with a reply that he could not remember.
Dr Richa Rastogi psychiatrist was asked by the claimant’s solicitor to provide an opinion about Mr Walker’s injuries and disabilities. He told her he underwent intensive rehabilitation 10 years ago and had been abstinent until a relapse recently. Since 2009 he had successfully trained as a drug and alcohol counsellor and excelled in his work, providing supervision.
Mr Guihot took Mr Walker to his employment records from Odyssey House in the year before the accident where he had been promoted to a position of supervision which had not worked out. He was ‘demoted’ and his income had reduced which can hardly be referred to as excelling at work. Mr Walker disagreed and provided an explanation he was not happy in the co-ordinator’s role, and he felt it was more of a ‘reshuffle’ rather than a demotion.
These examples are consistent with Mr Walker’s attempts to downplay any negative evidence which may impact on his claim for damages rather than accepting the evidence before the accident, paints a picture of him attending his doctors reporting significant mental health issues and seeking medications which he relied on to function.
I do accept he appears to have remained abstinent from drugs and alcohol for a decade pre-accident. He did hold down full-time employment. However, it is clear he has deliberately downplayed his psychological symptoms he reported to doctors before this accident. It is my observation that if he believes this will assist his case, he will adjust his evidence and or histories given to doctors to enhance and emphasis the nature and extent of his accident-related injuries.
When considering the nature and extent of his injuries sustained in the accident and the assessment of damages, his evidence and histories provided to doctors in support of this assessment will be approached with a level of caution.
There is no dispute Mr Walker sustained injuries to the regions of his neck, shoulders, and back. Mr Walker says he injured his right knee in the accident. He told me he was not aware of this injury until he had to have it drained at Liverpool Hospital in August 2018.
The insurer asked orthopaedic surgeon Dr Frank Machart to examine and provide opinion on Mr Walker’s injuries. The doctor noted an old right knee injury and concluded that the accident caused soft tissue injury to Mr Walker’s neck, a right shoulder rotator cuff injury causing impingement, anterior knee pain direct patellofemoral injury, soft tissue injury to right ankle and right hip. The doctor assessed WPI combined of 5%.
The claimant’s solicitor arranged for him to be examined for a medico-legal report with Dr Jonathan Herald on 24 August 2022. The doctor assessed his injuries as an aggravation of underlying cervical spondylosis with radiculopathic symptoms to the right upper limb, right hip trochanteric bursitis, right knee patellofemoral crepitus, lumbar spine aggravation of underlying spondylosis, right shoulder impingement with possible rotator cuff tear and left shoulder impingement syndrome.
MA Shahzad accepted Mr Walker sustained injuries in the accident which include neck, hip, knee, lumbar spine, left and right shoulder. His assessment of WPI was 9%.
Dr Mohammed Assem rehabilitation specialist in 2020 accepted Mr Walker had reached his maximum level of recovery.
I have been persuaded Mr Walker suffered injuries in this accident to his neck, shoulders, low back, and neck. The extent of these injuries includes ongoing restrictions and pain. Mr Walker gives little evidence on the extent of his physical injuries rather focusing on the affect the accident has had on his psychological difficulties. He does say he is unable to sit for long periods in one spot due to hip pain, lower back, and neck injuries. He says he continues to suffer pain in his shoulder which prevents him from lifting his arm above head height.
The major dispute regarding injuries sustained in the accident is Mr Walker’s psychological condition.
The day of the accident, at 14:18:34 hours Mr Walker consulted Dr Alam complaining of stress and problems with a new girlfriend. He told the doctor he was stressed at work. The doctor notes the reason for the contact with him was stress and anxiety. He was provided with a prescription for diazepam and given a medical certificate.
The accident occurred around six that evening. When Mr Walker was asked about the timing of the consultation and the accident he said, “That cannot be right as I would have been working”. He looked bewildered and repeated he did not accept that this is what occurred. He did concede if Dr Alam had recorded the date and time then it was likely to be true.
Time sheets from Odyssey House show he was not at work that day. The time sheet for the pay period ending 15 January 2018, and the 10th was a Wednesday. Mr Walker had worked the Monday and Tuesday and did not return to work until the following Monday, 15 January 2018.
He told me he was given a work certificate for two days unfit to work. However, the work certificate had been provided to him by Dr Alam hours before this accident. This certificate was unrelated to injuries.
Mr Walker says in his statements after the accident, he struggled at work spiralling out of control. He says he could not help his relapse into using drugs. He says he was struggling with pain and psychological problems. He explains a relationship with clients which led to a termination of his employment. He was charged with criminal and traffic offences serving prison time. He says at paragraph 32 of his second statement “I was a productive member of society for about 10 years before this accident and even though the accident has caused a substantial problem in my life causing me to go backwards and relapse into drug use, I want to get over the effects of the accident”.
He categorically disagrees with the insurer’s submissions that the accident has had no effect on his life. He says the accident has had a substantial impact on his life.
As a result of this accident, Dr Rastogi accepted Mr Walker suffered post-traumatic stress disorder, and a relapse of amphetamine abuse. It is difficult to accept Dr Rastogi’s opinion as she was not provided with a complete history. It is unclear what material was provided to the doctor, but it appears she did not have the benefit of Mr Walkers history of stress, depression, and anxiety before the accident.
Dr Graham Vickery psychiatrist has provided two reports requested by the insurer. He had the benefit of all the pre-accident medical records and material produced by Odyssey House. The doctor found that Mr Walker’s return to substance abuse and criminal behaviour is not causally related to the accident.
Two medical assessments in the Commission were conducted into Mr Walker’s psychological injuries. The first is that of MA Barrett conducted over two assessments. The certificate is dated 15 September 2022. The MA thoroughly reviewed all the medical records, and she took a very detailed history from Mr Walker. She also reviewed his traffic record. She was briefed to assess a specific phobia of driving.
Whilst taking a history from Mr Walker, he told MA Barrett after she proposed a direct question that prior to the accident he had been involved in a relationship with a former client. He acknowledged this was in contravention to the terms of his employment which prevented any relationship with clients of Odyssey House. This led to an investigation, but he maintained the issue resolved without issue.
After the accident, he told the medical assessor around February 2018, he commenced a number of inappropriate relationships with clients. Odyssey House carried out a full investigation which included the exposure of lewd text messages between Mr Walker and the client. The investigation also discovered fraudulent credit card activities. He had started using illicit drugs and was eventually charged with criminal offences involving firearms offences and drug possession charges.
He told MA Barrett he attributed this behaviour to the effects of the accident.
Medical Assessor Barrett reported Mr Walker was only partly cooperative with her interview process. His tendency to provide vague and conflicting responses to questions, requiring her to repeat for clarification significantly impacted the efficiency of her assessment process.
He tended to minimise his past alcohol use and past amphetamine use. He further minimised the significance of the pre-accident inappropriate relationship with a client in breach of his workplace rules.
He minimized his pre-accident psychiatric symptoms and when pointed out to him the inconsistencies with the general practitioners notes he downplayed the history reporting he just felt a bit low.
Having considered his past and post psychiatric medical history, MA Barrett held that the injury caused by the accident is a specific phobia of driving. She concluded the relapse of methamphetamine use disorder and post-traumatic stress disorder were not caused by the accident.
Medical Assessor Mason was allocated the assessment of Mr Walker’s WPI of a relapse of methamphetamine use disorder and adjustment disorder with mixed anxiety and depressed mood. The medical assessor took a thorough history of Mr Walker’s pre-accident psychological history and raised with him the multiple attendances to his general practitioners before the accident and in particular, the day of this accident. He minimised these attendances and said he was functioning well. He attributed all his psychological problems and difficulties in the workplace to the motor accident.
Medical Assessor Mason reported multiple inconsistencies in Mr Walker’s presentation. The MA opined the injuries, caused by the accident, to be an adjustment disorder with mixed anxiety and depressed mood and the relapse of methamphetamine use disorder. He carried out a psychiatric impairment rating and concluded the WPI assessment was 6%.
Medical Assessor Mason is an independent medical expert. He had the advantage of all of Mr Walker’s pre-accident history. He noted his inconsistencies and his tendency to downplay his pre-accident attendances for mental health treatment. Nevertheless, MA Mason did diagnose his psychiatric injuries as listed above and accepted he has been left with a significant impairment.
I accept, based on this assessment, Mr Walker suffered from a psychiatric injury which has led him to relapse into the use of illicit drugs. Mr Walker was involved in a frightening accident in which he hit a telegraph pole. He has been left with both physical and psychological injuries.
I do not accept any psychiatric injury caused by the accident led to his criminal conduct and inappropriate behaviour in his workplace in breach of his employment contract.
The extent of this injury is set out in MA Mason’s report at paragraph 12 under the heading, current symptoms.
Has the claimant established an impairment to his work capacity which is productive of past and future economic loss and superannuation?
Mr Walker is seeking past economic loss calculated from his termination from January 2019 to the date of this assessment at a rate of $1,000 net per week plus 9.5% superannuation. The amount submitted is $154,000 plus $14,630 superannuation.
The insurer accepts Mr Walker had a minimal amount of time off work relating to this accident. They have assessed the amount of $2,000 covers this closed period. This submission is based on the dispute that Mr Walker’s termination from his employment is unrelated to the accident.
He attended Patrician Brothers High School in Fairfiled to year 10. He says a friend of his died from a brain tumour when he was 15 years old which greatly affected him. He left school and worked in various jobs before securing a position with the State Railways as a station assistant and then a signal box operator.
He says he was terminated from this position due to excessive leave because of family commitments.
He had a number of relationships. He has daughters which he is estranged from. He says after the long-term relationship ended with the mother of two of his children, he went off the rails until around 2009 when he was accepted into a rehabilitation program at Odyssey House.
He says he was abstinent from all illicit drugs from November 2009 to around June 2018 adding “…shortly after the accident”.
It is Mr Walker’s position that but for this accident, he would have remained working at Odyssey House as a drug and alcohol counsellor earing around $59,000 gross per year. He claims superannuation would have been contributed by his employer at a rate of around 9.5%.
Dr Herald agreed from a physical perspective, it is unlikely Mr Walker will return to any meaningful employment. He noted his job at Odyssey House had been his only stable job given his history of drug and alcohol problems.
Accepting Dr Rastogi did not have the complete picture of Mr Walker’s pre-accident records, she felt his current level of functioning at the time of her assessment, due to drug abuse and his post-traumatic stress disorder was limited. She suggested he needed intensive rehabilitation and vocational assessment.
Dr Machart opined Mr Walker was fit for his pre-injury work. He had returned to work at Odyssey House after the accident without any apparent difficulties. He accepted there may be aspects of his job which may involve physically demanding work which he may find difficult.
Dr Vickery found no work incapacity due the accident. Dr Vickery found the relapse by Mr Walker into illicit drug taking was unrelated to the accident. I have accepted that the accident did contribute to his relapse.
I note a reference in the text messages between Mr Walker and the client he refers to his shoulder injury. He complained to the general practitioner about the pain he was experiencing after the accident.
I agree with the conclusion reached by Dr Machart that Mr Walker would have a work incapacity with tasks involving heavy manual activities.
I have not been persuaded Mr Walker’s inappropriate workplace violations related to injuries sustained in the accident. He had participated in this behaviour before the accident. There is no mention in the clinical notes, Odyssey House records or the text messages which relate his inappropriate conduct to injuries sustained in the accident.
As highlighted by both MA Barrett and MA Mason, there is evidence of a deterioration in his psychological condition during 2017. He was experiencing depressive symptoms of anxiety and panic attacks. He commenced using large quantities of diazepam. He worked throughout February and March 2018 with no apparent psychological difficulties.
The reason Mr Walker was terminated from his employment at Odyssey House was his inappropriate behaviour in contravention of his contract of employment. He participated in this behaviour fully aware of the consequences which he expressed in some of the text messages presented in this case. The termination was not related to injuries sustained in the accident.
Considering the diagnosis by MA Mason and the work incapacity as a result of his physical injuries accepted by Dr Machart, Mr Walker suffered an impairment to his past economic loss and superannuation.
Due to the intervening events which resulted in the termination from his employment, this assessment can only be considered as a buffer. A cushion or buffer assessment is relevant in circumstances where earning capacity has unquestionably been reduced but its extent is difficult to assess, see Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302: [2012] NSWCA 13. This is such a case.
It has been more than six years since the accident. Mr Walker has not only lost his job, but he has been incarcerated for criminal offences. Part of the criminal activities may have contributed to his inability to work. He has more recently been admitted to the Drug Court Program which requires strict reporting, urine testing and counselling sessions.
He has enrolled in a business course at TAFE. He is in receipt of a disability pension.
Having considered the timeframe since the accident and the unrelated events, the appropriate sum for past economic loss including past superannuation is $65,000.
For the future, Mr Walker is seeking a future economic loss of $716,683.45 plus superannuation. The insurer has submitted $5,000 is the reasonable amount for future loss of earning for the odd day off.
What was Mr Walker’s most likely future circumstances but for the accident?
He had previously engaged in a breach of his employment contract. He had demonstrated a deterioration of his psychological symptoms leading up to the accident. It is most likely but for the accident that he would have continued with his inappropriate relationship with the client. He also demonstrated aggressive behaviours particularly after relationship breakups.
Had he not relapsed into amphetamine abuse he may have been able to retrain and secure employment after the accident. The retraining would not have involved an avoidance of heavy physical activities.
Dr Machart felt from a physical point of view, there could be aspects of physically demanding work such as heavy labouring work that Mr Walker may find difficult. It is precisely this type of work Mr Walker may have sought employment after his termination as there is less scrutiny of potential employees in the fields of labouring, construction, and heavy manual labouring jobs. This opportunity was not open to Mr Walker due to his injuries.
Due to accident related physical and psychological injuries he has lost the opportunity to either retrain in another field of study and employment or apply for roles involving heavier manual type work.
Again, this assessment of future economic loss cannot be accurately assessed. Mr Walker says he is attempting to study although when I asked him how he saw his future, he was unable to provide me with any concrete plans.
He has been drug free since February this year. If he can remain abstinent, he may be able to complete the course he is enrolled in and secure employment. He continues to remain compromised by his physical injuries preventing him from engaging in labouring type work.
He does buy and sell cars. He told me he does these up and sells them. He was asked if he made a profit from these activities which he denied. He said this did not involve mechanical repairs but rather detailing activities. This activity does demonstrate a capacity to carry out some physical activities albeit, sedentary in nature.
Mr Walker is currently 49-years-old. He has another 18 years of working life. I am satisfied he has established a loss of future earning capacity which is productive of economic loss which can only be assessed by way of a buffer. The appropriate sum is $100,000.
SUMMARY
The summary of damages is as follows:
(a) past economic loss and superannuation $65,000.00
(b) future economic loss and superannuation $100,000.00
(c) TOTAL $165,000.00.
COSTS AND DISBURSEMENTS
The claimant has submitted a schedule of costs and disbursements. The insurer has agreed with this submission subject to the regulations. These are included in the cost’s calculation sheets, uploaded with this decision. The additional invoice for Dr Assem was also agreed in a message from the insurer on the portal.
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