Zhao v QBE Insurance (Australia) Limited
[2023] NSWPIC 610
•13 November 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Zhao v QBE Insurance (Australia) Limited [2023] NSWPIC 610 |
| CLAIMANT: | Niudan Zhao |
| INSURER: | QBE |
| MEMBER: | Elizabeth Medland |
| DATE OF DECISION: | 13 November 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; whether the claimant sustained an injury in a motor accident within the meaning of section 3.1(1); claimant alleges injury as a result of a motor accident after alighting from a vehicle driven by his employer; he claims he fell and the vehicle ran over his arm; insurer denies that the claimant was injured in a motor vehicle, relying on the evidence of the insured driver that no accident occurred involving his vehicle; insurer alleges the definition of motor accident is not satisfied as set out in section 1.4 because the accident did not occur; consideration given to contemporaneous reports of injury, including general practitioner notes; consideration of the weight to be given to insurer’s medical evidence; Held – that on the balance of probabilities the claimant was injured in a motor vehicle; a claim for costs above the regulated amount made pursuant to section 8.10(4); costs awarded at the maximum regulated amount. |
| DETERMINATIONS MADE: | CERTIFICATE Issued under s 7.2(3) of the Motor Accident Injuries Act 2017 In accordance with Division 7.6 of the Motor Accident Injuries Act 2017 (the Act), the Commission’s assessment is: 1. Mr Niudan Zhao did sustain an injury in a motor accident within the meaning of s 3.1(1) of the Act. 2. The amount of the claimant’s costs in the matter is $1,919 plus GST. |
STATEMENT OF REASONS
INTRODUCTION
Mr Niudan Zhao (the claimant) is a 57-year-old male who alleges suffering an injury as a result of a motor accident occurring on 28 September 2021.
The claimant alleges that on such date, his employer had given him a ride home from work. When the vehicle arrived at the claimant’s address, the claimant alighted from the vehicle and the employer drove away, however, the claimant had a bag which became tangled in the back of the employer’s vehicle. The vehicle dragged the claimant down to the ground, and ran over his right arm and pulling him for a number of metres.
The insurer denies that an accident occurred as described by the claimant. As such a dispute has arisen between the parties as to whether the injury was sustained as a result of a motor accident, as defined under the Motor Accident Injuries Act 2017 (MAI Act). Specifically, the matter is to be determined as a miscellaneous claims dispute matter under Schedule 2
cl 3 (b) of the MAI Act – “whether for the purposes of section 3.1 (Statutory benefits payable in respect of death or injury resulting from motor accident) the death of or injury to a person has resulted from a motor accident in this State.”The claimant lodged an Application for Personal Injury Benefits (claim form) with the compulsory third party (CTP) insurer of the employer’s vehicle on or about 24 October 2021.
It is apparent that liability was initially accepted by the insurer for payment of statutory benefits. However, subsequently, in an email dated 14 March 2022 addressed to the claimant’s lawyers, the insurer advised that liability was denied for ongoing statutory benefits on the basis that the insurer did not accept that the claimant was “…injured in a motor vehicle accident as alleged or at all.”
That email further alleged that the claimant had made false and misleading statements “…in pursuit of his claim…” The notice went on to state that the insurer is obligated pursuant to s 6.30 of the MAI Act to take reasonable steps to deter and prevent the making of fraudulent claims, and in that regard the insurer was considering referring the matter to the NSW Police in accordance with s 6.40 of the MAI Act.
An internal review was requested, and in a determination dated 3 May 2022, the insurer determined that the insurer was entitled to cease payment of statutory benefits.
The claimant, through his legal representatives, subsequently lodged an application with the Personal Injury Commission (Commission). The matter has been allocated to me as a Member of the Commission to determine the dispute.
I have held one teleconference between the parties on 23 May 2023. I noted that the from the material before me the matter appeared to be a miscellaneous claims assessment dispute pursuant to Schedule 2 cl 3(b) of the MAI Act. This understanding was confirmed by the parties. I noted that I did not have any submissions in support of the Application. Directions were made for the provision of submissions from the claimant and the insurer in reply. Those submissions have now been received.
When preparing my decision it became apparent to me that certain documentation was missing from the insurer’s bundle of documents, when cross referenced with their submissions. A request for the missing documents was made and the insurer’s representatives subsequently provided same.
DOCUMENTATION
I have reviewed and considered all documentation/footage included in the Application and reply and all additional information provided by the parties.
LEGISLATIVE FRAMEWORK
Section 3.1 of the MAI Act provides that, inter alia, that statutory benefits are payable to an injured person as provided by Part 3, if the injury results from a motor accident in this State.
Pursuant to Schedule 2, cl (3)(b) of the MAI Act a dispute relating to whether for the purposes of s 3.1 (Statutory benefits payable in respect of death or injury resulting from motor accident) the death of or injury to a person has resulted from a motor accident in this state, is declared a miscellaneous claims assessment matter for the purpose of Part 7 of the MAI Act.
Section 7.42 of the MAI Act provides that a dispute as to a miscellaneous claims assessment matter can be referred to the Commission for assessment.
SUMMARY OF EVIDENCE
Claim form dated 24 October 2021
The description of the accident is as follows:
“My employer was giving me a ride home after work on the day of the accident. When we arrived at my address, I got off the car but my bag was tangled to the back of my employer’s car and he drove away without looking. His car dragged me down to the ground and ran over my right arm, pulling me across for a few metres. I tried to shout out to my employer but he did not seem to hear me. I later untangled my bag from the car myself.”
The claim form sets out alleged injuries to the left shoulder and left hand. The claimant indicated that he did not require an ambulance or that he attended hospital.
State Insurance Regulatory Authority – Certificate of Capacity dated 1 October 2021
This certificate was completed by a Dr David Wang of Hurtsville. Clinical notes of this doctor are not before me.
The accident is described by the doctor in the following terms: “he had a fall from his boss’s car, the car rolled over his hand and fall onto his L shoulder, OE: L shoulder decreased range of motion due to pain, also L hand bruising and tender”.
The injuries are noted to involve the left shoulder (subluxation of the humeral head) and left hand (soft tissue injury).
Clinical notes of Alliance Medical Healthcare Centre – Dr Angela Lam
The insurer has included these clinical notes in their reply. The notes commence with an initial consultation of 24 October 2021 (the date of the claim form). The last recorded consultation is 6 November 2021.
The clinical note of 24 October 2021 includes a background that records the claimant as working in landscaping, that he lives alone and is isolated. It also states: “reports that employer is not particularly supportive of injuries – on one occasion was working with a power saw -. Lacerated L forearm -. Did not apply for WC for Pt.”
In respect of the subject alleged accident the notes state as follows:
“
- Occurred on 28 September 2021
- Was getting out of employer’s car when employer started to drive off
- Pt lost balance & fell, landing on L side of body with L upper limb outstretched
- Employer’s car then ran over Pt’s L hand/wrist/forearm!
- Severe pain in L shoulder, upper arm, forearm, L hand ++++
- Later also noted low back pain but of great concern -> legs felt weak, as if they’re about to give way all the time, and unable to maneuver left foot into slippers/thongs whilst at home
- Also difficulty with ascending stairs -> legs felt v weak, out of his control
- Taken by employer to ?Hurtsville I-MED next day (29 September 2021) -> had imaging of L shoulder & ?left upper arm only
- On 30 September went back to imaging centre to collect report -> report translated by a friend/employer who told him that there had been a left shoulder dislocation
- Was then contacted by employer who told him (to the effect of) that “you’re on your own”.”
The claimant complained of worsening pain and being scared regarding lower limb weakness. It was noted the claimant shuffled into the room. The cervical spine was unable to be examined due to pain, and the right arm was noted to be mostly unaffected.
The left shoulder was noted “?seem swollen, bulging forwards compared to R” and there were extremely restricted shoulder movement in all directions. Examination of the left shoulder was noted to be tender with no bruising. There was pain with flexion and extension.
On examination of the left hand an unusual bulge was noted of the left 5th metacarpal, and was described as severely tender over the region. The entire palm of the left hand was noted as tender with the claimant unable to make a full fist. Passive flexion of the fingers caused severe pain over the left sided metacarpals.
Sensory examination was recorded with the claimant having a reduced pin prick and light touch sensation over the left forearm and upper arm.
The claimant attended upon Dr Lam again on 6 November 2021 and the notes suggest the claimant being in severe fear. The notes document that on the previous occasion the claimant was given instructions in writing and advised to submit a CTP claim. He was told to wait for a claim number and then give Dr Lam same so he could order treatment. The claimant apparently refused to pass on the claim number and requested that Dr Lam speak with his solicitor. It is apparent, however, that the claimant did provide Dr Lam with a claim number.
The note records the claimant requires support and “…apparently has been messaging and visiting solicitor at 0300!!.” Dr Lam noted that the claimant will also require psychotherapy as well as imaging.
The claimant attended upon Dr Lam again on 17 January 2022. The notes record the outcome of an MRI to the left shoulder (tear of anterosuperior labrum and supraspinatus tendinopathy) and MR of the lumbar spine (focal right paracentral disc protrusion at L1/2). In addition an MRI of the cervical spine demonstrated broad based disc bulging at C5/6.
Dr Lam notes complex issues and provides a history of the presentations to hospital and her concerns with the claimant’s mental state.
Emergency Department (ED) Discharge Referrals – Bankstown-Lidcombe Hospital dated 30 November 2021
The claimant presented to the hospital on 30 November 2021 with dizzy spells. A Mandarin speaking nurse interpreted for the claimant. History was recorded as including dizziness for two months and that he was hit by his boss’ car two months prior. It was noted that the claimant reported his left leg being “more weak” since the motor accident.
The notes also record the claimant’s general practitioner (GP) ordering an MRI of the lumbar spine dated 19 November 2021 which noted a disc bulge of L2/3, L4/5, with annular tear and focal central disc protrusion. An MRI of the left shoulder included a suspicion of a labral tear. An X-ray of the Left hand osteoarthritis.
On examination the claimant was noted to have a normal gait, but unable to walk easily heal to toe due to lower back pain and unsteady gait. He had normal vision and power grip was noted as 4.5/5 on the left and right 5/5. Vital signs were reported as normal. A brain CT was reported as demonstrating no acute intracranial pathology.
Neurological examination findings are reported as:
- weakness in L hip flexion and ankle dorsi flexion;
- weakness in L shoulder abduction;
- sensation and reflexes intact, and
- nil cranial nerve abnormalities identified.
It was concluded that the claimant was suffering from lower back pain after the motor accident with nil cauda equine.
The claimant again presented to the ED on 11 January 2022. The claimant was seen by staff with the interpreting help from family over the telephone. The claimant’s GP is noted to have referred the claimant for assessment due to memory loss, and was unable to get on the right train to get back home. It was noted that he lived alone and was in a car accident in September when car ran over his left limb.
On examination, the claimant denied any confusion and laughed when asked about having any psychotic episodes. He denied feeling sad or depressed and described his mood as good.
The history notes the claimant came to Australia in 2017 as a tourist and had been working odd jobs such as gardening. He had a wife and children in China and last spoke to them the year prior. It was noted that he wanted to go back to China.
The report also records the following:
“Reports from his GP Dr Angela Lam Alliance Medical Centre
Went to Lawyers house at 3am, was terrified, could not say why. Told GP he went there, pt said it was only place he knew.
Has been sending a lot of text message to his GP saying he is scared that he is going to die and that he does not know what to do. Saying he is not well asking to be saved. Telling GP if you help me I will pay you money from my compensation. I am trying to hand on and I do not know if I will be there. Please help I do not know what I did. Sasys she is scared of the lawer, asking GP to ask lawer what he should do.
As per Dr Lam has been anxious since the MVA. GP suspected that he might be paranoid. Had asked Niduan to send his CTP claim no to her so she can forward it to the lawyer. He then gtold GP she should ask his lawyer. In December sent text messages to GP while she was on leave saying he is scared.
Thinks his main worry is the financial cost of (medical expenses). Though Niudan knows his case is being handled by lawyers continues to worry about hospitalisation costs.
Also voiced that he is scared of his employer, could not say why.
Main concern is
Collateral Hx listed friend Shelly 0405 XXX XXX
Has been complaining of dizziness and numbness in his legs since he was involved in the accident. Says his legs are shaky almost everyday. Feels his legs are weak and he is not able to walk. Told Shelley he has not been getting full amount of compensation and this has been stressful. Shelley thinks Niudan is depressed due to having a lot of financial stressors. Not working currently, lacks social supports.
Pt has never mentioned thoughts of wanting to die or ever expressed suicidal ideation.”
The notes include a record that the claimant complained that he was having difficulty walking, however, he was seen to be walking appropriately in ED.
The claimant presented again to the ED on 13 January 2022. He is noted to have presented complaining of a change in his physiological being following the motor accident. He stated that he was in hospital due to pain in his legs. The report goes on to state:
“ED have cleared this man from medical point of view and suggest that his symptoms are psycho somatic.
However there is some doubt whether there is an element of secondary gain. The reason being pt’s abrupt response and denial to discuss anything to do with his visa status and insurance issues. All the same, he complains that he is not able to walk, but has been observed walking independently in ED.”
The Acute Care Team of the St George Community Mental Health Service wrote to Dr Lam on 17 January 2022. The letter notes the team had phone contact with the claimant on 15 January 2022 with the assistance of an interpreter. The claimant apparently stated that the only problem was his left leg and declined psychological symptoms. He also denied that he would be returning to China as documented in the Bankstown Hospital notes.
Report of Dr Dao, orthopaedic surgeon dated 25 February 2022
Dr Lam referred the claimant to Dr Dao. The report records the motor accident with the claimant getting out of his employer’s vehicle and it knocking him to the ground when driving off with the claimant landing on his left shoulder and the vehicle running over his left hand and forearm.
The report takes a history of severe pain in the left hand, and shoulder pain limiting activities. He was noted to have multiple sessions of physiotherapy and a cortisone injection to the left shoulder.
On examination, Dr Dao found significant swelling and trophic changes to the claimant’s left lower forearm and hand. The doctor described a woody feel to the skin and discolouration and a cool feel to the skin. Tenderness was noted over the anterior joint line and biciptal groove.
The doctor opined the claimant had a small stable tear of the left shoulder, however, felt that the shoulder symptoms are due to adhesive capsulitis of the left shoulder. Dr Dao’s main concern involved “florid features of CRPS [chronic regional pain syndrome] of his left hand and forearm evidenced by his symptoms as well as the trophic changes and slow healing skin lesion.”
Report of Dr Kam, neurosurgeon dated 29 March 2022
The claimant’s GP referred the claimant to Dr Kam. Dr Kam noted the MRI of the cervical spine shoed foraminal narrowing around the C5/6 level although felt this did not explain the claimant’s collection of symptoms. Dr Kam opines that potentially the symptoms could be explained by the crush injury to the forearm. He recommended that nerve conduction studies be undertaken.
The claimant was reported to be frustrated with the insurance process and wished to return to China.
Report of Dr Lam to the insurer dated 11 March 2022
The diagnosis was described as chronic regional pain syndrome of the left upper limb, with involvement of the bilateral lower limbs, a left shoulder SLAP tear and post-traumatic stress disorder with major depression. Dr Lam stated: “Mr Zhao’s diagnosis was elusive for some time. However, in retrospect, this diagnosis is entirely consistent with his presenting symptoms and subsequent progress.”
Statement of the claimant dated 10 January 2022
The statement was taken with the aid of a Mandarin interpreter.
The claimant explains that on the day of the accident he was a passenger in his employer’s vehicle. He states that he and a co-worker were usually taken to a worksite each day from the employer’s home and were also driven home each day by the employer.
The claimant describes the accident as follows from paragraph 6:
“I had just gotten out of the vehicle from the left side of the car, carrying my bag with my left arm.
Mr Xie then drove away quickly without looking and I was pulled forwards by my bag that was caught to the trailer attached to the back of Mr Xie’s car. My bag may have been caught to the work tools that was protruding from the trailer, but I am not sure as it all happened very fast, and I was desperately trying to untangle myself.
I tried to shout out to Mr Xie, but he did not seem to hear me. I was dragged by the car down to the ground and pulling me forward for a few metres. My left arm was also run over by the wheels of the trailer.
After being dragged forwards for a few metres, I finally managed to untangle myself from the bag.
Mr Xie then realised that I was on the ground and stopped the car.
He came to check on me and helped me up. I told him I felt pain to my left arm and left shoulder.
…”
The claimant explains that he thought that his pain would get better and he went home, however, his arm began to swell and he had difficulty moving the left arm. He explains that he tried to call his employer, Mr Xie, but his calls were not answered.
The claimant went to the employer’s house the next day via bus. He explained to his employer that he was not able to work that day due to pain and requested that he be taken to a medical centre to have some scans performed.
The claimant states that the employer took the claimant to Hurtsville Town Medical Centre and an Xray of the left shoulder was undertaken showing subluxation.
The claimant states that his employer denied responsibility and told the claimant not to find him anymore. Given his ongoing pain, a friend advised the claimant to seek legal advice.
He explains that he was told to report the matter to police. After a number of attempts, the claimant reported the matter to NSW Police at St George Police Station on 8 October 2021. He had the assistance of an interpreter and a friend and spoke to a Constable Wolf.
The claimant states that he went back to the police station on a number of occasions hoping to obtain a police event number but was told on each occassion that there was no record on the system. He did not see Constable Wolf again. He states that on the last occasion he was advised by a Constable Huang that he did not need to make a police report and did not need a police event number.
Supplementary statement of claimant dated 10 January 2022
This statement explains that the claim form’s mention of the vehicle running over his right arm was a typographical error and should have said left arm.
Statement of insured driver, Mr Xiaojun Xie dated 6 February 2022
The statement was taken by investigators, Brooksight Investigations, as instructed by the insurer.
Mr Xie states that on the day of the alleged accident, he had driven the claimant home after working as a gardener from around 8.00am to 6.00pm. He explains that his usual routine is to drop the claimant around 100 metres from his home, and the claimant walks home that point.
Mr Xie denies that there was any incident. He states that on the day of the accident when he was driving the claimant home, the claimant told him that he had changed jobs and he wished to finish working for him.
It is stated that the claimant was seated in the rear passenger seat, where he would normally sit. Mr Xie states that he pulled over on Belmore Road opposite Russel Street and the claimant got out and had his usual backpack with him.
Mr Xie states that he usually towed a trailer and was towing the trailer on the day. He states that he remained stationary whilst the claimant was getting out and he heard the rear door close. He states that he was looking at the claimant as he got out and the claimant was away from the car and standing on the footpath. He then slowly pulled away. He states there was no contact with the claimant and he believes that the trailer also did not make contact with the claimant.
It is then stated by Mr Xie as follows from paragraph 52:
“I went about 20m ahead along Belmore Road and looked into my mirror and saw the Claimant was now sitting in the gutter.
I stopped and reversed my car back towards where the Claimant was sitting and parked and got out to speak with him.
I asked what was wrong and he said he was just tired. He made no mention of my car ever hitting him and showed no visible signs of injury.
The Claimant did have a backpack with him.
I then watched the Claimant get up and walked across all lanes of Belmore Road towards his home street Russell Street.
The Claimant then turned up to my house the next morning at 7.30am and said that my car had injured his arm. I said that it didn’t, and he then asked me for a favour.
He asked if I would get him an x-ray, and I agreed, as this is my duty and I drove him to a medical centre in South Hurtsville where I paid for an X-ray of his left shoulder. I can provide a copy of those X-Ray results…”
The insured then goes on to state his opinion as to the findings of the X-ray. He calls the claim a “lie” and “illegal”. He also alleges that the claimant came to him the following Monday and asked for several thousand dollars. After the insured said no, the claimant lodged his claim.
Further statement of the claimant (undated)
This statement is largely a response to the insured driver’s statement. The claimant denies that he told the insured that he was just tired after the incident. He states that the insured helped him get up from the ground, and told him to be careful in the future.
The claimant confirms that he asked the insured the next day to take him to a doctor to have scans. He states the insured took him to an Indian doctor and did not know what this was the case when there are a lot of Mandarin speaking doctors in Hurtsville.
The claimant states that he does not understand or speak English and he does not know what the insured told the doctor. The claimant explains that the insured did all the talking at the appointment.
IT is stated that the insured denied that he was responsible for the injuries and told the claimant that he did not want anything to do with him anymore.
The claimant states that he went to see another doctor on 1 October 2021, Dr Wang. The claimant states that he was distraught due to his injuries and spoke to a lawyer who was assisting him with visa issues. That lawyer suggested that he find a legal representative to make a claim.
The claimant also states that if it were not for the accident he would have continued working for the insured and he denies that he told him that he had changed jobs and wished to finish up working for him.
Reports of Dr Antoun dated 4 February 2022
Dr Antoun appears to hold a Bachelor of Medicine and Bachelor of Surgery. The report was requested by the insurer, with the purpose states as being: “to determine whether the incident on the 28 September 2021 is a direct cause to the reported pathology on the MRI scan of the left shoulder performed on the 19 November 2021.”
Dr Antoun states that he spoke to Dugal, the radiologist who provided the MRI report. Dr Dugal apparently stated that the findings on the MRI scan were consistent with longstanding impairment and there were no acute features that could be correlated with the claimed time frames or traumatic event.
A further report of Dr Antoun is provided also dated 4 February 2022. Dr Antoun provides a summary of a discussions he had with Dr Lam and Dr Wang, regarding the claimant’s presentation and history.
Briefly, Dr Antoun records that Dr Lam agreed that the cervical and lumbar spine complaints were inconsistent and not related to the claimed accident. Dr Lam apparently believed the claimant has an underlying personality disorder.
Dr Wang, apparently advised that the clinical presentation was unremarkable and was not consistent with any trauma or the claimed event. Dr Wang was said to have confirmed that there was no soft tissue injury, bruising, skin trauma, abrasion or fracture that would be expected with a hand/arm trauma from a vehicle running over it.
Dr Antoun then states:
“Based on the file review, relevant documents and discussions with Dr Angela Lam & Dr David Wang, Mr Zhao’s claimed symptoms have been confirmed as inconsistent with any event and do not correlate with the time frame of the claimed traumatic incident.
Mr Zhao’s expanding symptoms are not medically supported nor anatomically or neurologically possible.
Mr Zhao is fit for his pre-injury activities and the claim will need to be further investigated.”
SUBMISSIONS
Insurer submissions dated 10 October 2022
The submissions deal with the confusion as to the application and the dispute that the claimant wishes the commission to determine. Aside from the apparent threshold injury dispute, I note that the parties at the teleconference agreed that the matter for determination is whether the claimant suffered an injury in a motor accident in this state in accordance with s 3.1 of the MAI Act. The dispute for my determination does not include any issues as to fault or procedural issues, such as a failure to report the accident to NSW Police.
The insurer’s stated “overarching submission” is that the accident did not occur and accordingly, the representations made by the claimant to date are false and misleading.
The submissions then note the failure to comply with verification, noting that the matter was not reported to police, and alleges that the claimant has failed to provide a full and satisfactory explanation for such failure pursuant to s 6.9 of the MAI Act.
The insurer submits that the definition of motor accident as set out in s 1.4 of the MAI Act is not satisfied, because the accident did not occur. In support of this submission, the insurer sets out a list of inconsistencies present in the treating evidence. This includes a recorded history by Dr Lam and Dr Wang of the claimant losing his balance and falling and further that Dr Dao has recorded a history that the claimant was still alighting from the vehicle when he fell.
The opinion of Dr Antoun is relied upon by the insurer in submitting that the accident did not occur.
The insurer also asserts the claimant has made further misleading representations throughout the conduct of his claim, including a denial that he had past injuries. In this regard, the insurer relies upon their insured’s statement that the claimant had a history of left shoulder pain and the claimant has not provided pre-accident medical evidence to displace the suggestion that he had prior relevant injuries.
The insurer suggests that the claimant’s evidence should not be accepted on the basis that his character is in “clear disrepute.” The insurer suggests that the insured’s evidence is instead consistent as opposed to that of the claimant.
Claimant’s submissions dated 15 June 2023
The submissions are largely a summary of the facts and the evidence, rather than submissions on the issue at hand.
The submissions suggest that the insured verifies that an accident happened and it is just that he is unaware of how the accident occurred.
It is also submitted that in the alternative the subject accident is a “no-fault” accident under s 5.1 of the MAI Act.
Insurer’s submissions dated 21 June 2023
The submissions refute the assertion that the insured verifies that an accident happened. It is submitted that instead that the statement of the insured simply verifies that he drove the claimant home and that the claimant exited the vehicle and he then rested in the gutter.
It is submitted that on the whole the totality of the evidence is consistent with the insured’s statement and version of events and therefore the insurer has satisfied the evidentiary burden that no accident occurred.
FINDINGS AND REASONS
The dispute is simple, the claimant alleges he was injured in a motor accident and the insurer alleges that no such accident occurred.
The insurer relies on a various pieces of evidence to support their position.
One such piece of evidence, is the opinion of Dr Antoun. I do not consider the evidence of Dr Antoun to be of any significant assistance to me when making my determination. His opinion is arrived at without the benefit of an examination of the claimant and the conclusions are reached after discussions with treating doctors. The description of those discussions amounts to little more than hearsay. There is no direct evidence from the treating doctors, but instead a summary of Dr Antoun’s recollection and/or perception of what was told to him.
Furthermore, the purported statements of Dr Lam must be considered in light of a further report from her dated 11 March 2022 (ie, after her discussion with Dr Antoun) where she provides a diagnosis of chronic regional pain syndrome and explains that prior to this diagnosis she had been somewhat perplexed by the claimant’s presentation. She goes on to state that the diagnosis is entirely consistent with the presentation of the claimant.
Also relied upon is the statement of the insured. The insurer submits that the insured’s statement is consistent. I do not agree with such assertion. The insured states he paid the claimant cash and “so he does not have workers compensation.” I find this statement to be incongruent with insured suggesting that after the claimant attended his home the next day, that it was his “duty” to take the claimant to get a radiological scan even though he denies any accident occurring and also asserts that at that stage the claimant had quit his employment. It is not explained what “duty” he considers himself bound to.
Following the above, I also put little to no weight on the history recorded in the X-ray of the left shoulder taken the next day, in circumstances where the insured took the claimant to the medical appointment. Moreover, the medical appointment was with a doctor that did not speak Mandarin. I accept the claimant’s evidence that the insured did the talking during the consultation and he did not understand what was being said. This is consistent with the hospital notes that verify the claimant’s issues with the English language.
I also do not accept the insured’s assertion that after reversing back and asking the claimant why he was sitting in the gutter, that the claimant explained that he was tired. This makes little sense in circumstances where the claimant was a very short distance from home. Having made this finding, and noting that the insured confirms that the claimant was seated in the gutter, I consider it consistent with an accident occurring.
The insurer refers to a number of alleged inconsistencies in the evidence in respect of the claimant’s recounting of events, as recorded by various treating practitioners. It is true that some details are inconsistent. However, it must be borne in mind that this is a summary of what the claimant said, and in some cases interpreted comments, as recorded by the practitioners, rather than direct evidence from the claimant. Despite the inconsistencies in some details, what remains consistent in all of the histories is that the claimant alleges that a motor accident occurred where the insured vehicle ran over his arm. Whilst the claim form records the right arm being ran over, all other reports are consistent that it is the left arm, and indeed is consistent with the X-ray being performed the next day on the left arm. I therefore give the fact that the claim form says right arm, in circumstances where the claimant does not understand English and clearly did not fill out the form himself, very little weight.
In terms of the medical evidence and whether same supports the claimant having suffered injury in a motor accident, it is clear that the claimant’s presentation is complex. It may well be that there will be grounds to allege that the claimant is not injured to the extent of what is alleged. However, I am satisfied on the evidence before me that the claimant is more likely than not to have suffered injury as a result of the alleged accident. In this regard, I note the findings of Dr Dao who found significant welling and trophic changes to the left upper limb. There is clearly some consistency to a left arm injury when the claimant had an X-ray to that limb the very next day.
On the basis of the above, and on balance I am sufficiently satisfied that the claimant was injured in a motor vehicle accident in this State.
COSTS
The claimant’s submissions advance a claim for a discretionary costs order over and above the regulated amount for a miscellaneous claims assessment, under ss 8.3(4), 8.10(4) of the MAI Act, on the basis of there being exceptional circumstances.
I do not agree with such assertion. There is nothing about this matter that I consider takes it outside the realm of what could be expected of a dispute of this type as set out in Schedule 1 of the MAI Act.
I held one teleconference, no assessment conference took place, no expert evidence was commissioned and a brief set of submissions are provided in support of the claim, which largely only summarise the evidence.
However, as a regulated miscellaneous claims assessment matter under Schedule 2, cl(3)(b) of the Regulation, legal costs may be awarded.
Schedule 1 cl (3)(1) of the Regulation provides that the maximum costs for legal services provided to a claimant involving a dispute about a regulated miscellaneous claims assessment matter is 16 monetary units.
The value of a monetary unit is currently $119.96.
As such I award the maximum regulated amount, which amounts to $1,919.
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