Yas v QBE Insurance (Australia) Limited
[2024] NSWPIC 238
•9 May 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Yas v QBE Insurance (Australia) Limited [2024] NSWPIC 238 |
| CLAIMANT: | Mohammed Yas |
| INSURER: | QBE Insurance (Australia) Limited |
| MEMBER: | Susan McTegg |
| DATE OF DECISION: | 9 May 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claim for damages; claimant self-represented; the claimant injured in a motor vehicle accident on 29 September 2019 at age 64 years; claimant made redundant from longstanding job on 20 October 2017, thereafter carer for mother until 19 December 2018; from 20 December 2018 received Newstart allowance and Coronavirus supplement until 4 January 2021 when eligible for age pension; claim economic loss for period 20 December 2018 to 4 January 2021; pre-existing right wrist fracture; chronic back pain, and from time to time pain in neck, right sacroiliac region and/or right hip; medical opinion effect of accident now resolved and current symptoms due to age and pre-existing factors; Held – claimant continued to suffer from impact of soft tissue injury to cervical spine, lumbar spine and left knee until at least 4 January 2021; claimant genuine in attempts to return to work; at time of accident claimant only fit for light sedentary work; accident destroyed any residual earning capacity; assess damages for economic loss by way of buffer of $50,000 inclusive of superannuation. |
| DETERMINATIONS MADE: | Certificate Issued under s 7.36(1) of the Motor Accident Injuries Act 2017 Assessment of Claim for Damages made in accordance with s 7.36 of the Act 1. On the issue of liability for the claim, the NRMA’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 ss 7.36(3) and 7.36(4) of the Motor Accident Injuries Act2017 (the MAI Act), I specify the amount of damages for this claim as $50,000. |
REASONS FOR DECISION
Issued under s 7.36(1) of the Motor Accident Injuries Act2017
INTRODUCTION
Mohammed Yas (the claimant) sustained injury in a motor vehicle accident on 29 September 2019 (the accident).
I am asked to assess damages pursuant to the provisions of the Motor Accident Injuries Act 2017 (MAI Act) in respect of the injury sustained by the claimant.
QBE Insurance Australia Limited (the insurer) is the relevant insurer with liability to pay damages to the claimant under the MAI Act.
Mr Yas lodged a common law claim for damages on 2 November 2021.
Mr Yas alleges he sustained injury to his cervical spine, his lumbar spine, his left knee and his right wrist in the accident.
The insurer has admitted liability for the common law claim for damages and has conceded the claimant has sustained a non-threshold injury.
Teleconference on 25 January 2024
The matter was listed for teleconference on 25 January 2024. Mr Yas and his son Zunaid Mohammed participated in the teleconference. Mr Martin Cope appeared for the insurer.
During the teleconference I explained that the dispute referred to me was a common law claim for damages. I was required to assess the entitlement to damages for non-economic loss (pain and suffering) and economic loss.
I informed Mr Yas that there was only an entitlement to non-economic loss if he could show he had sustained a whole person impairment (WPI) greater than 10%. I explained Medical Assessor Kenna had assessed the dispute as to WPI and assessed a 0% WPI. Whilst this did not mean that Mr Yas no longer experienced pain as a result of injury sustained in the accident it meant he had no entitlement to recover damages for his pain and suffering or non-economic loss.
Mr Yas explained he was concerned about the failure of the insurer to provide treatment and support where he continued to be affected by the injury sustained in the accident and required Panadol osteo daily. Mr Yas was concerned reliance was placed on the opinion of a medical practitioner who assessed him once for 45 minutes and the opinion of his treating general practitioner (GP) who had seen him over many years was not considered. Mr Mohammed stated the system was not responsive to the needs of injured persons and medical experts were not listening to the recommendations of the treating GP.
I explained to Mr Yas and Mr Mohammed that disputes as to treatment are covered by the statutory benefits scheme and that I had no power under the relevant legislation to make a direction or assess compensation in respect of treatment.
I explained that Mr Yas did not need to pursue a common law claim for damages to pursue further treatment. I explained in the statutory benefits scheme Mr Yas could obtain a further referral for treatment, seek approval from the insurer, and if the approval is not forthcoming seek a reconsideration of that decision. In the event the declinature is maintained I advised Mr Yas he could make a further application for assessment of the treatment dispute in the Personal Injury Commission (Commission).
Where Mr Yas has no current entitlement to recover damages for non-economic loss (pain and suffering) I asked him to confirm that he was not working at the time of the accident. He confirmed he had not worked for a period six months in the two years preceding the accident entitling him to statutory benefits. However, he stated at the time of the accident he was looking for suitable work as required by Centrelink and that records of his attempts to obtain work should be in the Centrelink file.
I informed Mr Yas that he may have an entitlement to lump sum compensation for the impairment of his earning capacity if he can show he was job seeking prior to the accident and as a result of the accident was no longer fit for return to work.
However, I informed Mr Yas that he would need to furnish the evidence needed to establish that entitlement to damages, and that the insurer will not obtain the evidence on his behalf. I explained it was his obligation to prosecute the claim.
I agreed to adjourn the matter for a further teleconference to give Mr Yas an opportunity to provide evidence of his attempts to obtain employment. I suggested he provide a statement which addressed the following:
· work history including qualifications and experience;
· pre-accident health including details of any pre-existing conditions;
· when ceased work and why;
· details of attempts to obtain work prior to the accident including positions applied for, when those applications were made and the response received, and
· detail the injuries sustained in the accident and how those injuries impact on his capacity for work.
I directed the insurer to serve on the claimant and upload to the portal a copy of the claimant’s Centrelink file.
I directed the claimant to serve on the insurer and provide to the Commission evidence of his attempts to obtain employment prior to the accident and a statement setting out the matters detailed in paragraph 18 above.
I adjourned the matter for a further teleconference on 18 March 2024.
Teleconference on 18 March 2024
Mr Yas and his son Zunaid Mohammed participated in the teleconference on 18 March 2024. Mr Martin Cope appeared for the insurer.
Mr Yas provided a statement dated 26 February 2024. He detailed his employment history from 1996 until he was made redundant in October 2017. His mother had a fall in November 2017 and he cared for his mother and received the carers benefit until December 2018. From December 2018 he was required to job seek until 15 April 2020 when he was put on the coronavirus supplement. In January 2021 he commenced receiving the Age Pension. Mr Yas stated between December 2018 and 15 April 2020 he looked for work and notified Centrelink of all jobs sought. Unfortunately, Centrelink was unable to provide further information as to jobs sought due to legacy systems/archives. Even if an application was made provision of the records was not guaranteed and could take between 6 and 12 months.
I informed Mr Yas when considering the assessment of damages for economic loss I would be assessing the impairment of his earning capacity which would take into consideration his age, his pre-existing impairments and the fact he had been out of the workforce for a period of time.
I said I would also look at what attempts he had made to obtain suitable employment. I asked Mr Yas if he could provide a supplementary statement setting out to the best of his ability any details of jobs sought. He said the history of jobs sought was with Centrelink. I asked if he applied online, or through SEEK and he said he went to the factories themselves to seek work. He said he was looking for factory work. I asked him to try and document to the best of his ability the names, places and jobs sought. Mr Yas was not confident he could recall this information but agreed he would attempt to provide a supplementary statement.
I also asked Mr Yas if he wanted to provide any further submissions or say anything. He said he thought he had said everything already. Mr Cope wanted an opportunity to provide submissions in respect of the insurer’s assessment of the claim.
I indicated the matter could be listed for an assessment conference or I could assess the dispute on the papers. I explained an assessment conference is like an informal hearing where he would have an opportunity to present his case. If the claim is determined on the papers I informed Mr Yas I would read all the documentation and make a decision which is sent to the parties without a hearing. Mr Yas stated he was tired of running around for four or five years; he was giving up. He agreed the matter could be determined on the papers.
Where there is no objection and where both parties have provided evidence in relation to the issues in dispute I consider it is appropriate to determine this matter on the papers in accordance with Procedural Directions PIC2.
On 2 May 2024 in the course of making my determination it became apparent that documents referred to by the insurer in submissions had not been uploaded to the portal. A message was sent to the parties as follows:
“Mr Cope I note there are various records referred to in your submissions which have not been uploaded to the portal. In particular I ask that you upload as a matter of urgency the following records:
Application for personal injury benefits
Liverpool Hospital Discharge Summary
Report of Dr Michael Hong dated 10 January 2020
Certificates of Fitness of Dr Azam Ali dated 10 October 2019 and 15 November 2021.
Report of Dr Keller dated 24 November 2021
Report of Dr Matthew Giblin dated 22 January 2022
Benchmark report of Monica North dated 14 February 2022
Any other records from treating practitioners.
Noting I had proposed to issue my decision by 7 May 2024 please attend to this request as a matter of urgency.”
On 3 May 2024 Mr Yas uploaded a message to the portal where he was critical of the insurer’s conduct and asking if he could also be furnished with the following records:
“Report of Dr Michael Hong dated 10 January 2020
Certificates of Fitness of Dr Azam Ali dated 10 October 2019 and 15 November 2021.
Report of Dr Matthew Giblin dated 22 January 2022
Benchmark report of Monica North dated 14 February 2022
Any other records from treating practitioners.”
On 3 May 2024 the insurer uploaded approximately 40 additional documents, a number of them duplicates. I caused the following message to be sent to the parties:
“I note that the insurer uploaded approximately 40 additional documents on Friday 3 May 2024.
Whilst not clear it seems that all or some of these documents had not previously been shared with the claimant. This is disappointing conduct on behalf of the insurer.
Mr Yas, you may wish to provide further comment or submissions on those documents, although you are not required to do so, if you think it is unnecessary.
Accordingly, I propose to allow you until close of business on 13 May 2024 to provide any further submissions. If you do not propose to provide any further submissions please advise me though the portal.
Having regard to the late provision of these documents and the need to ensure procedural fairness I will extend the date for my decision to be issued to Friday 17 May 2024.”
On 8 May 2024 I received a message from Mr Yas. He stated:
“Thank you for providing the opportunity to review these documents. It’s really disappointing and frustrating to not have the level of transparency from QBE over the last 4 year. I have had to constantly case and or contact the insurer for information and next steps, the only thing you get from this insurer is mainly emails. Ivan is about 6th claim manager/ representative from QBE that I have heard from and not a single time any context or discussions seems to be updated or recorded incase they need to pass onto someone else in QBE. I have to explain everything again to the new claims manager/ representative from QBE each time. There doesn't seem to be any clear handoffs.
I have had to continuously run around over the last 4 years back and forward with this insurer and as mentioned in the last call meeting, My wife and I are just tired of QBE's handling and conduct on this case. I hope someone holds the insurer accountable for their broken processes, lack of transparency and their conduct so that this doesn't happen to someone else in future. I don't want to spend hours and hours going through over 40 documents that are dating back to 2020, 2021, 2022 and trying to piece together what and why and how the claims managers previously made or reviewed certain decision etc.
My preference now is to just move on with a decision and close this case based on all the evidence I have provided and the conversations already had with you. I take Panadol Osteo everyday since my accident for pain management, the suffering from the accident and the impact it has had on my life/ ability to work has been very depressing considering I had a much active lifestyle prior to accident. This coupled with the insurers lack of transparency and conduct is just too much for myself and my wife to take on from our mental well-being perspective.
Please proceed with your final decision and hope we can reach a fair resolution with QBE to close this case and not drag on into the future. [sic]”
Accordingly, I am satisfied it is now appropriate to finalise my decision.
The claim for damages is limited to economic loss. There is no entitlement to damages for non-economic loss or pain and suffering where Mr Yas has not been able to establish that he has sustained a WPI greater than 10%. Furthermore, determination of this claim does not finalise the claimant’s statutory rights in relation to treatment.
DOCUMENTS CONSIDERED
The following relevant documents were considered in undertaking this assessment:
· Application for personal injury benefits;
· photographs of the damaged cars;
· statement of Mohammed Yas dated 26 February 2024;
· undated supplementary statement of Mohammed Yas;
· Liverpool Hospital Discharge Summary;
· clinical notes of Adnash Medical Centre;
· Certificates of Fitness of Dr Azam Ali dated 10 October 2019, 8 November 2019 and 15 November 2021;
· reports of Patrick Cormack, physiotherapist dated 20 November 2019, 3 January 2020, 11 March 2020, 13 February 2021 2 June 2021, 16 February 2022 and 27 April 2022;
· Allied health recovery request (AHRR) – various dates.
· reports of Alana Cashman of Work Focus Australia dated 26 November 2019 and 29 January 2020;
· report of Dr Michael Hong dated 10 January 2020;
· report of Dr Keller dated 24 November 2021;
· report of Dr Matthew Giblin dated 22 January 2022;
· Benchmark report of Monica North dated 14 February 2022;
· clinical notes of Prime Physiotherapy;
· certificate of Medical Assessor Kenna dated 9 January 2024;
· report of MRI of the left knee dated 6 November 2019;
· Centrelink file in response to a request from the insurer dated 9 August 2022 (14 pages);
· payslips from Toyo Tyre & Rubber Australia Limited dated 24 October 2017 (x 2):
· Australian Recognised Trade Certificate as a Motor Mechanic dated 19 December 1996;
· submissions of the claimant in an email dated 1 June 2022;
· submissions contained in emails to Mr Cope from Mr Yas (x 2) in relation to the calculation of economic loss, and
· insurer’s submissions dated 22 April 2024.
THE EVIDENCE
Application for personal injury benefits
Mr Yas completed an Application for personal injury benefits dated 10 October 2019.
He was 64 years of age at the date of accident and is now 69 years of age.
Mr Yas described his injuries as follows:
“Have had severe whiplash with back and chest pain, cut on forehead, cut on left leg, pain in both leg/nerve pain. Lower back pain, shoulder pain, numb front left toes. Unable to walk properly or do much lifting or day to day activities.”
Statement of Mohammed Yas dated 26 February 2024.
Mr Yas stated he qualified as a heavy machinery and vehicle mechanic in Fiji. Prior to migrating to Australia, he had his own business in Fiji undertaking land development and forestry.
Mr Yas migrated to Australia with his family in November 1996. He worked with Toyo Rubber products from February 1997 until August 2017. Mr Yas stated he held various roles with that company including machine operator, foreman, assistant supervisor and production planner. Mr Yas stated in Australia he obtained certification as a motor mechanic.
Prior to the accident Mr Yas said he maintained an active hard-working lifestyle. He managed a mortgage and was the only income earner in his house.
Whilst working at Toyo Rubber he started work at 5.00am and returned home at 2.00pm or 4.00pm when overtime was available. He was an active member of the Muslim society of Western Sydney, serving as President and as a board member, serving the community and supporting fundraising events.
Mr Yas stated prior to the accident he enjoyed afternoon walks and vegetable gardening which he can no longer enjoy as a result of the injury sustained in the accident.
Mr Yas stated prior to the accident he was on cholesterol and diabetic medication. He had also sustained a minor hairline fracture of his right wrist and had pain in his right foot, shoulder and arm which limited from performing work that required heavy lifting or standing for long hours.
Mr Yas was made redundant from Toyo Rubber in October 2017 due to a company restructure.
In November 2017 his mother at 93 years of age was hospitalised after a fall in the shower resulting in a hip/knee fracture. Mr Yas provided full-time care to his mother until she died in December 2018. During that period, he received the carers payment from Centrelink.
From late December 2018 Mr Yas started to look for work with the Centrelink agency Octec. To receive the New Start allowance he was required to actively look for work through the Centrelink listed providers. Mr Yas states he was on the New Start/Job Seeker payment from December 2018 until 15 April 2020.
From 15 April 2020 until 3 January 2021 Mr Yas received the Coronavirus Supplement due to his health and the Coronavirus.
On 4 January 2021 Mr Yas qualified for the Age Pension.
In his statement Mr Yas outlined the enquiries he made with Centrelink to obtain records of the jobs he had applied for. Centrelink confirmed he would not have been paid the New Start allowance if he had failed to comply with the conditions attached to that benefit, that is, the requirement to job seek. He has been informed a request to obtain the relevant records would take a long time due to the records being archived. Centrelink suggested to Mr Yas records showing receipt of the New Start allowance should be sufficient to verify he was job seeking.
Mr Yas stated he sustained injury to his back, shoulder, left knee, wrist, head and arm in the accident and is now reliant on Panadol Osteo. He described the accident as follows:
“We were stopped at the set of lights in a 60 zone when a car rear ended us pushing the seats forward, my wife had 4 broken ribs and broken nose/head injuries as well and myself being trapped between the seat and steering wheel …”.
Mr Yas stated as a result of the injury sustained in the accident including the aggravation of his pre-existing conditions his chances of finding work and returning to paid employment became very limited.
Supplementary statement of Mohammed Yas
Mr Yas provided an undated supplementary statement at my request. He stated he personally approached various companies looking for work aligned to his skills and experience. Mr Yas stated the list was compiled from memory and was not complete. Noting it is now over three or four years ago he stated it is difficulty to recall the details of all employers he approached. However, he states as the sole income earner in the family he was actively looking for work. These applications for employment are in addition to those applied for through the Centrelink agencies. Mr Yas also states his ability to secure employment became more challenging due to COVID and the lockdowns.
Mr Yas states whilst he is aware future work positions were not guaranteed his employment opportunities were further limited following the accident in September 2019 due to the injuries he sustained.
Mr Yas provided the following table of employers he approached for work:
Name of Company
Address
Type of work
AAA Rapid Homes Pty Ltd
11/10 John Hines Avenue, Minchinbury
Fork Lift driver/Storeman
KAFF Construction Pty Ltd
10 Haverhill Avenue, Hebersham
General Labour/Handyman Support
Diesel Mechanic NSW Pty Ltd
50 Ross Smith Avenue, Mascot
Motor Mechanic
Trucks Transmission & Mechanical Centre
18/157 Airds Road, Minto
Motor Mechanic
Toyo Tyre & Rubber Australia Limited
137-147 Airds Road, Minto
Machine Operator/Production Planning
Riz Truck Wash Service Pty Ltd
67 Chetwynd Street, Merrylands
Truck/Bus Wash and Cleaner
AutoZone
67 Blaxland Road, Campbelltown
Parts Delivery Driver/Sales
Extone Automotive
Unit 3/10 Hollylea Road, Leumeah
Parts Delivery Driver
Campbelltown Service Centre
4/4A Hollylea Road, Leumeah
Parts Delivery Driver
Racer Freight
14 Powdrill Road, Prestons
Delivery Driver/Factory Hand
Photographs
A photograph of the two vehicles in collision shows significant damage to the rear of the claimant’s vehicle. Notably the entire rear and boot of the claimant’s vehicle was pushed towards the passenger compartment.
Payslip from Toyo Tyre & Rubber Australia
A payslip dated 24 October 2017 references a redundancy payment and discloses a termination date of 20 October 2017. Mr Yas’ annual salary was recorded as $65,268.
Centrelink file
The Centrelink file confirmed Mr Yas received the carer’s payment until 19 December 2018 and thereafter he received the Jobseeker payment until 29 March 2020. He has been in receipt of the Age Pension since 4 January 2021.
Those records also show employment with Toyo Rubber Products until 2 November 2017.
Medical conditions are also noted prior to the accident including fractures and crush injuries to the lower limbs, as well as shoulder and upper arm disorders from March 2019 and spinal disorder from August 2019.
The records also include an assessment on 7 March 2019, prior to the accident detailing physical limitations caused by a scaphoid fracture and right plantar fasciitis. The baseline work capacity was noted to be 15-22 hours per week.
THE MEDICAL EVIDENCE
Pre-accident medical evidence
On 23 March 2017 and 1 April 2017 Dr Ali reported right shoulder pain. He was prescribed Mobic.
On 21 July 2017 Dr Ali reported lower back pain which had been present for several years.
On 13 December 2018 Dr Ali reported right wrist pain and noted an old X-ray demonstrated an old non-united scaphoid fracture. On 19 December 2018 Dr Ali reported the non-union of the old scaphoid fracture was confirmed on a CT scan. He reported wrist movements were restricted and painful. Dr Ali reported to Centrelink Mr Yas was unable to do Newstart due to right wrist pain.
On 13 March 2019 Mr Yas reported he had been wearing a wrist brace for the last two months. He reported he was favouring his left arm, shoulder and hand. He reported an increase in lower back pain.
An X-ray of the whole spine on 26 March 2019 reported:
“There is loss of cervical lordosis with mild reversal.
Narrowing of the intervertebral disc heights at C5/6 and C6/7 levels is seen.
No prevertebral soft tissue swelling.
Suggestion of moderate to severe foraminal narrowing at C5/6 level on the right.
Multilevel narrowing of the intervertebral disc heights at the thoracic spine is likely degenerative.
There is loss of lumbar lordosis.
Multilevel mild anterior wedging especially at T11/12 and L1 is probably anatomical.
Vertebral heights are otherwise preserved.
Bony alignment is satisfactory.”
On 28 March 2019 he complained of neck and lower back pain and bursitis in his shoulder.
On 15 May 2019 Mr Yas reported right sacroiliac joint pain. He was prescribed Targin and Panadeine Forte.
On 13 June 2019 Mr Yas reported right hip pain. He was referred for physiotherapy.
On 27 June 2019 Mr Yas was seen for acute on chronic back pain. He was prescribed Celebrex.
On 29 July 2019 Dr Ali reported left shoulder impingement, worse at night and present for about four weeks. An ultrasound of the left shoulder on 30 July 2019 demonstrated supraspinatus insertional tendinosis with overlying subacromial/subdeltoid bursitis.
On 18 September 2019 Mr Yas reported improved pain in the shoulders but he was walking with an antalgic gait.
Post-accident medical evidence
Liverpool Hospital
Mr Yas attended Liverpool Hospital following the accident on 29 September 2019 which was described as “collision from behind at a speed of ?60km/hr”.
Mr Yas reported chest pain, his leg was painful with a superficial laceration and he reported a small lump which was mildly tender as a result of hitting his head on the steering wheel. He was reported to have normal cervical spine movements, no spinal tenderness and chest wall tenderness on the right side.
Dr Azam Ali, GP
On 1 October 2019 Dr Ali perused the Liverpool Hospital clinical notes. He recorded a left knee injury, noting bruising to the left anterior knee with swelling of the left lateral upper leg. He also reported lumbar back muscle strain.
On 3 October 2019 Dr Ali reported bruising to the left knee, an upper shin abrasion, stiffness and limitation on rotation to the right, blunt trauma to the right chest, back muscle strain and left ankle oedema.
On 10 October 2019 Dr Ali reported post-accident anxiety and insomnia. In a Certificate of capacity/certificate of fitness he provided the following diagnosis:
“Whiplash – minor to moderate. (R) chest wall – musculoskeletal strain. Lumbar muscular strain – facet joint strain. (L) knee – infra-patella haematoma and abrasion. (L) ankle oedema (R) knee. (L) lower leg strain & tendoachelles strain - (r) infrapatellar strain. Post-accident – anxiety and insomnia. [sic].”
On 30 October 2019 Dr Ali reported left knee pain. He reported Mr Yas found it hard to walk 20 to 30 metres. On 4 November 2019 Dr Ali reported back pain, right leg pain down the lateral margins and right toe numbness. He also noted bilateral knee pain. On 8 November 2019 Dr Ali reported Mr Yas could not fully flex his left knee and could only walk comfortably for about five minutes. On 14 November 2019 Dr Ali reported left knee pain and compensation right knee pain.
An MRI of the left knee on 6 November 2019 demonstrated a longitudinal horizontal undersurface tear of the posterior horn of the medial meniscus.
On 13 February 2020 Dr Ali reported right wrist pain, left shoulder pain, and left knee pain and reported Mr Yas was getting benefit from physiotherapy. On 24 March 2020 Dr Ali reported the left knee pain was slowly improving. The back was intermittently painful. On 12 May 2020 Dr Ali reported wrist pain, chronic back pain and left knee pain, made worse by cold weather. On 20 October 2020 Dr Ali reported neck stiffness and on 8 April 2021 he reported neck pain and stiffness, back pain and left knee pain.
An X-ray of the right wrist on 24 March 2020 noted the old fracture of the scaphoid and secondary degenerative changes affecting the radiocarpal articulation.
In June and July 2021 Mr Yas reported significant depressive symptoms.
On 7 October 2021 Dr Ali undertook a review. He noted back pain – acute on chronic, pain in sacroiliac area, neck stiffness, left knee pain, difficulty flexing the knee to climb steps and right wrist pain. Mr Yas continued to complain of left knee pain, right wrist pain, and back pain.
Alanna Cashman, Work Focus Australia
Rehabilitation Consultant Ms Cashman undertook an assessment on 12 November 2019. She reported at the time of the accident Mr Yas was not working and had been receiving benefits via the Newstart Allowance through Centrelink. She reported pre-accident he was compliant with Centrelink’s job seeking requirements, however, post-accident he had not fulfilled his obligations and engaged in job seeking due to both pain symptoms as well as his role in supporting his wife subsequent to the accident.
Ms Cashman reported Mr Yas was concerned about the impact of the accident and whether his physical injuries may impact his ability to secure employment. She also suggested it was unclear what impact his role as carer for his wife may have on his return to work activities.
Patrick Cormack, physiotherapist
Mr Cormac provided a report dated 20 November 2019. Mr Yas presented on 13 November 2019 with bilateral anterior knee pain, lower back pain and neck pain. He also complained of an exacerbation of chronic left shoulder and right wrist pain.
On 3 January 2020 Mr Cormack reported some improvement in knee and back pain. He was able to stand, walk and drive for longer periods. He was frustrated at not being able to kneel to pray. On 11 March 2020 Mr Cormack reported Mr Yas was attempting to resume his household tasks.
On 2 June 2021 Mr Cormack reported Mr Yas completed his physiotherapy treatment on 31 May 2021. He concluded Mr Yas reported intermittent lower back pain fluctuating in intensity and some right sided neck pain. He reported a standing/walking tolerance of 30 minutes, and a sitting tolerance of 30 to 60 minutes. He concluded the neck, back and knee pain were chronic and limited the claimant’s capacity for regular activities.
On 16 February 2022 Mr Cormack reported Mr Yas had returned complaining of persisting back, bilateral knee, right shoulder and wrist pain. He reported his rehabilitation had been disrupted by the Covid pandemic. However, he noted Mr Yas had undergone about 32 physiotherapy treatments, and given self-management exercises with little difference. He concluded the pain was now chronic.
On 27 April 2022 Mr Cormack reported Mr Yas had intermittent lower back pain with prolonged standing and/or walking. He recommended a supervised gym-based exercise program.
Dr Matthew Giblin, orthopaedic surgeon
Mr Yas was referred to Dr Giblin by Dr Ali. In a report dated 22 January 2020 he reported following the accident Mr Yas developed neck pain, bilateral shoulder pain, an aggravation of a pre-existing low back problem, an aggravation of a pre-existing right wrist problem and bilateral knee pain. He concluded the injuries were consistent with the accident and recommended further investigations.
Monica North, Benchmark Rehabilitation
Ms North provided an Initial Needs assessment dated 14 February 2022. She reported Mr Yas was independent in self-care and had paid supports in place for cleaning and lawn maintenance. He reported he could sit for 15 to 20 minutes, stand or walk for 20 minutes, and drive an automatic vehicle for up to 15 minutes. Ms North relied upon the opinion of Dr Keller and concluded any loss of function was likely unrelated to the injuries sustained in the accident and therefore no further rehabilitation input was indicated. Ms North recommended Mr Yas apply to My Aged Care for domestic assistance and long term care needs.
Medico-legal reports
Dr Michael Hong, psychiatrist
Dr Hong provided an early specialist opinion in a report dated 10 January 2020.Dr Hong reported since the accident Mr Yas had experienced problems maintaining the Newstart job search obligations due to pain and needed to support his wife who suffered symptoms subsequent to the accident. He reported Mr Yas was able to perform some light household chores and had no difficulty in social functioning. Dr Hong reported Dr Ali did not consider Mr Yas suffered major psychopathology, noting there was no severe anxiety and Mr Yas’ driving anxiety was improving.
Report of Dr Keller, occupational physician
Dr Keller examined the claimant and provided a report dated 24 November 2021. Dr Keller reported at the time of the accident Mr Yas was actively looking for full time work although he had some physical restrictions in his right wrist.
Dr Keller reported following the accident Mr Yas had physiotherapy to the lower back, right wrist and left knee. He reported an MRI of the left knee revealed a medial meniscal tear and scarring of the lateral collateral ligament.
Dr Keller reported constant right wrist pain, constant lower back pain and intermittent daily left knee pain that restricts him from prolonged walking or kneeling.
On examination Dr Keller reported a full symmetrical range of motion of the cervical spine with reported pain but no radiculopathy. He found restriction of palmar and dorsiflexion in the right wrist consistent with his old scaphoid injury. He reported inconsistent restriction of lumbar flexion without asymmetry or radiculopathy. Dr Keller did not detect any abnormality in the left knee.
Dr Keller reviewed the available medical records and concluded Mr Yas had longstanding constitutional degenerative changes affecting his neck, back, sacroiliac joints, hips and shoulders. He noted the old scaphoid fracture on the right, osteoarthritis in the 1st carpometacarpal joint and probably an old injury to the left knee.
Dr Keller concluded the accident caused a temporary exacerbation of longstanding multiregional musculoskeletal degenerative changes with pain. He opined that the effects of the accident would have resolved in less than three months.
Dr Keller assessed 0% WPI.
Certificate of Medical Assessor Clive Kenna
Medical Assessor Kenna provided a certificate dated 9 January 2024.
Medical Assessor Kenna reported Mr Yas had previously sustained an old scaphoid fracture of his right wrist. He did not report any history of neck and back problems or any symptoms relating to the left knee before the accident.
The accident occurred when the vehicle Mr Yas was driving was rear ended by another vehicle pushing his car forward causing it to collide with the vehicle in front. His car was written off. Police and ambulance attended the accident scene. His wife went to hospital by ambulance but Mr Yas was driving by his son.
At Liverpool Hospital it was noted he had sustained a whiplash injury with back and chest pain. He had a cut on his forehead, a cut on the left leg and nerve pain pertaining to the lower back and shoulders.
Mr Yas underwent physiotherapy for his lower back, left knee and right wrist until April 2020 when it was suggested he may benefit from a referral to a gym program. It was noted he had a poor response to physio.
Medical Assessor Kenna Mr Yas had back pain radiating into both legs and pain involving the medial aspect of the left knee. Mr Yas stated in respect of his lower back he could sit, stand and walk for about 15 minutes. He avoids kneeling on his left knee.
On examination of the cervical spine Medical Assessor Kenna reported there was no muscle guarding, symmetrically reduced range of motion with no neurological deficit in either upper limb. He did not find any non-verifiable radicular complaint. He found range of movement was restricted by 20% in all directions.
On examination of the lumbar spine Medical Assessor Kenna reported there was no muscle guarding, symmetrically reduced range of motion with no neurological deficit in either lower limb. He did not find any non-verifiable radicular complaint. He found range of movement was restricted by 10% in all directions.
On examination of the left knee Medical Assessor Kenna found no muscle wasting, there was symmetry between the legs, normal gait, ligamentous and meniscal stress tests were normal and painless. Mr Yas had normal strength in the extremity on manual testing, the knees were in normal alignment and there was no crepitus. No abnormality was detected.
Medical Assessor Kenna was also asked to consider a request for a gym program which was made two years and nine months earlier. He commented having regard to the claimant’s overall fairly poor physical shape a gym program was probably inappropriate in view of his age and where he consider any initial injuries had resolved and his current presentation was related to long-standing multi-level degenerative changes.
He concluded the right wrist was not caused by the accident but the non-union scaphoid fracture was due to a work related injury. Medical Assessor Kenna concluded the claimant sustained soft tissue injuries and temporary aggravation of underlying pre-existing degenerative change of the lumbar and cervical spine and possible injury to the left knee.
Medical Assessor Kenna concluded the following injuries were caused by the accident:
· cervical spine – soft tissue injury;
· lumbar spine – soft tissue injury, and
· left knee – soft tissue injury.
Medical Assessor Kenna assessed a 0% WPI.
SUBMISSIONS
The claimant’s submissions
Mr Zunaid Mohammed provided submissions by email dated 1 June 2022 on behalf of the claimant.
The claimant did not agree with the report of Dr Keller who he said only undertook a 30 minute assessment. Mr Yas stated he was in much better health and mobility prior to the accident. He argued the insurer had not engaged with him or provided services during the two years of COVID to improve his health and mobility, noting due to lockdowns no home duty services of physiotherapy services were provided. Mr Yas argued he did not require these services prior to the accident. He argued that it was unlikely that the deterioration in his health and mobility was only age related where it was only two years post-accident.
Mr Yas also addressed the assessment of Ms North from Benchmark. He expressed the view her main concern was taking photos to create an impression that the claimant had recovered. He stated Ms North forced him to use the vacuum cleaner even though he had already told her that he could not vacuum due to mobility issues. He stated she then asserted it was a posture issue and his kids already help him and he does not use paid services. Mr Yas states why should he have to pay for the services himself when they were not required prior to the accident or why should his children have to bear the burden of providing assistance when they have their own homes to look after.
Mr Yas also reported that the insurer did not consider the opinion of his GP who had not spoken to either Dr Keller or Ms North. Mr Yas argued his mobility had only gone downhill because of the accident.
The insurer’s submissions
The insurer provided submissions dated 22 April 2024.
The insurer notes Mr Yas is now 69 years of age.
The insurer submits Dr Michael Hong, psychiatrist reported on 10 January 2020 that Mr Yas had improved and was driving unaccompanied, although I note Dr Hong was largely addressing any psychological injury.
Dr Matthew Giblin concluded injuries to the cervical spine, aggravation of injuries to the left shoulder, low back and right wrist and a new injury to the right shoulder and knees was consistent with the accident.
The insurer relies upon the report of Ms North of Benchmark dated 14 February 2022 who concluded that the injuries from the accident had healed.
The insurer relies upon the opinion of Dr Keller who found the claimant had longstanding constitutional degenerative changes affecting his neck, back, sacroiliac joints, hips and shoulders. He noted the old scaphoid fracture that had healed with non-union and a probably old injury to the left knee. Dr Keller concluded the accident may have caused a temporary exacerbation of longstanding multiregional musculoskeletal degenerative changes with pain. He did not consider there was any lasting aggravation and concluded the effects of the accident would have resolved within three months.
THE INJURY AND DISABILITY SUSTAINED BY THE CLAIMANT
I find in accordance with the certificate of Medical Assessor Kenna that Mr Yas suffered the following injuries caused by the accident:
· cervical spine – soft tissue injury;
· lumbar spine – soft tissue injury, and
· left knee – soft tissue injury.
Whilst I accept the opinion of Medical Assessor Kenna that the claimant’s current disability is largely as a result of the underlying degenerative changes I am satisfied that he continued to suffer from the effects of those soft tissue injuries until at least 4 January 2021.
However, not only did Mr Yas concede that his pre-existing problems limited him from performing work that required heavy lifting or standing for long hours it is also apparent from the Centrelink records that prior to the accident Mr Yas had physical limitations caused by the right scaphoid fracture and right plantar fasciitis. Further, it is also apparent from the records of Dr Ali that in the six months prior to the accident Mr Yas was experiencing chronic back pain, pain in his left shoulder and from time to time pain in his neck, right sacroiliac region and or the right hip.
Accordingly, having regard to those pre-existing disabilities I find Mr Yas was only fit for light sedentary work at the time of the accident and would not have been fit for work which required heavy lifting, or prolonged standing or walking.
However, I find that as a result of the soft tissue injuries sustained and the aggravation of his underlying degenerative conditions any residual earning capacity in existence at the time of the accident was destroyed.
Whilst I accept the prevailing medical opinion that the claimant’s current disabilities are now largely as a result of the long-standing degenerative changes I am satisfied the soft tissue injuries and the aggravation of the underlying degenerative changes continued until at least 4 January 2021.
THE ASSESSMENT OF DAMAGES
Economic loss
Mr Yas was 64 years and 8 months of age at the time of the accident.
Mr Yas was made redundant from Toyo Tyre & Rubber Australia Limited on 20 October 2017. Shortly thereafter his mother suffered a fall and he commenced receiving the carer’s payment until 19 December 2018.
Mr Yas received the Newstart allowance and subsequently the Coronovirus supplement from 20 December 2018 until 4 January 2021 when he became eligible to receive the age pension.
Therefore, the claim for economic loss is limited to two years being the period from 20 December 2018 until 4 January 2021 when Mr Yas was eligible to receive the age pension.
I propose to treat the contents of a letter from Mr Yas to Mr Cope in response to the insurer’s offer of settlement as the claimant’s submissions. Mr Yas notes at Toyo Tyre & Rubber Australia Limited his hourly rate was $33 per hour resulting in a gross weekly income of $1,255 over a 38 hour week. On the basis he had two years and four months until retirement he applied the multiplier for two years on the 5% tables of 99.4, deducted the Centrelink allowances received for the years 2020 and 2021 and added an allowance for loss of superannuation to arrive at a total of $114,854.
It is apparent from the initial payslip dated 24 October 2017 that the claimant’s net earnings with Toyo Tyre & Rubber Australia Limited was $984 net per week.
Mr Yas provided a copy of a further email to Mr Cope where he suggested as an alternative past economic loss be calculated on the national minimum wage which as of 1 July 2023 was $23.23 per hour or $882.74 per week for a 38 hour week. Applying the same formula utilised above Mr Yas suggests an appropriate award of damages for past economic loss basis on the national minimum wage would be $67,541.
However, this is not the correct way to calculate future wage loss. An award of damages for future wage loss is not taxable and is calculated on the net weekly wage. Further, it is not appropriate to deduct the amount of any Centrelink payment received, although it is correct there may be a requirement to repay some or all of the Centrelink payments received during the period of incapacity.
The insurer’s position is that based on the opinion of Ms North and Dr Keller the effect of the accident has resolved and any current symptoms are due to age, pre-existing factors and medical issues unrelated to the accident.
However, the insurer stated they considered the claimant’s attempts to return to the workforce were sincere and were impacted by his injuries. The insurer considers an appropriate award for past economic loss to be $20,000 on the basis Mr Yas sustained a loss of $200 net per week for two years. Applying the two year multiplier of 99.4 x $200 net per week equates of $19,880 which the insurer rounded up to $20,000. In addition, the insurer allowed for loss of superannuation calculated at $2,750.
I agree with the insurer that Mr Yas was genuine in his attempts to return to employment. Ms Cashman reported pre-accident Mr Yas was compliant with his job-seeking obligations under Newstart although due to pain and the need to support his wife he had not engaged in job seeking since the accident. Dr Hong also reported Mr Yas had experienced problems maintaining his Newstart job search obligations post-accident and Dr Keller reported Mr Yas was actively looking for full time work at the time of the accident. Mr Yas has also been able to establish that in addition to job seeking with the Centrelink associated agency he also approached various employers personally to seek work as set out in his supplementary statement.
I am satisfied if the accident had not occurred Mr Yas would have continued to look for work, given his longstanding history of employment in Australia and his role as the only income earner in the household. However, there is uncertainty as to whether Mr Yas would have secured employment having regard to his age of 64 years, where at the date of accident he had already been job seeking without success for nine months; and where he was only fit for light sedentary work. It is unlikely he had the physical capacity to cope with a number of the roles he sought such as a motor mechanic or labourer although employment as a parts delivery driver would have been appropriate.
In cases such as Medlin v State Government Insurance Commission[1] and Husher v Husher[2] the High Court confirmed that the fundamental questions to be determined in a case such as this, are whether the Claimant has sustained a loss or diminution in his earning capacity and, if so, whether that loss or diminution will result in economic loss.
[1] Medlin v State Government Insurance Commission (1995) HCA 5.
[2] Husher v Husher (1999) 197 CLR 138.
In NSW v Moss[3] at [87] Heydon JA stated:
“In short, where earning capacity has unquestionably been reduced but its extent is difficult to assess, even though no precise evidence of relevant earning rates is tendered, it is not open to the court to abandon the task and the want of evidence does not necessarily result in non-recovery of damages.”
[3] NSW v Moss [2000] NSWCA 133.
In this case I am satisfied there has been a reduction in the claimant’s earning capacity, although the extent of that economic loss is difficult to ascertain where notwithstanding his intention to return to work and his good employment record the factors outlined above mean that a return to employment was not certainIn Penrith City Council v Parks [2004] NSWCA 201 the Court of Appeal concluded that it is appropriate to award a buffer when the impact of an injury upon the economic benefit from exercising earning capacity after injury is difficult to determine.
In this case I consider that it is appropriate to award a buffer for the impairment of the claimant’s earning capacity. I consider an appropriate buffer to be the sum of $50,000 inclusive of loss of superannuation benefits.
ASSESSMENT OF DAMAGES SUMMARY
I assess the claim as follows on the findings set out above:
Past and future loss of earnings $50,000
TOTAL DAMAGES ASSESSED $50,000
COSTS AND DISBURSEMENTS
Mr Yas was not legally represented and did not incur any legal disbursements so there are no costs and disbursements assessable.
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