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ACJ v NRMA Insurance [2018] NSWDRS MR 062

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionMerit Review
CatchwordsStatutory benefits – post-accident earning capacity – cleaner – surveillance – fitness to return to work – earning capacity
Legislation cited                    Motor Accidents Injury Act (NSW) ss 7.13(4), Schedule 1 clause 8(1), Schedule 2(1)(a)
Motor Accident Guidelines effective 30 April 2018 
Motor Accident Injuries Regulation 2017 (NSW)
Cases cited

N/A

Text citedN/A
Parties ACJ - Claimant
GIO Insurance - Insurer
DisclaimerThis decision has been edited to remove all Unique Personal Identification including the name of the Claimant.

Merit Review Certificate

View the certificate

Issued under section 7.13(4) of the Motor Accident Injuries Act 2017

The Claim
Claimant ACJ
InsurerNRMA Insurance
Claim number NWRTP180081101
Date of accident7 April 2018
The Reviewable Decision
Date of decision                                         30 August 2018
Nature of Reviewable decision Post-accident earning capacity
The Merit Review
Our Reference 10059133
Merit Reviewer Jeremy Lum
Date of Merit Review Certificate 10 January 2019

Merit Reviewer’s Determination

The reviewable decision is the decision of the Insurer about ACJ’s post-accident earning capacity.

This is a decision that affects the amount of weekly payments of statutory benefits and is therefore a merit review matter under Schedule 2(1)(a) of the Motor Accident Injuries Act 2017.

  • The reviewable decision is set aside and the following decision is made in substitution:
o   ACJ has no post-earning capacity from 7 April 2018 to 30 August 2018.

o   ACJ has no post-earning capacity from 30 August 2018.

o   The Insurer is to calculate ACJ’s weekly payments under Division 3.3 of the Act in accordance with this determination.

o   The Insurer is to pay ACJ the difference of payments already made and any amounts owed to him in accordance with this determination.

Jeremy Lum
Dispute Resolution Service Merit Reviewer

Reasons

Background

1.   ACJ was injured in a motor accident on 7 April 2018 and received statutory benefits in the form of weekly payments from the Insurer.

2.   On 30 August 2018, the Insurer advised ACJ that statutory benefits would not extend beyond 10 July 2018 on the basis of Dr Rosenthal’s opinion that ACJ was fit to return to pre-injury work on that date.

3.   On 31 August 2018, ACJ requested an internal review from the Insurer.

4.   On 28 September 2018, the Insurer declined to conduct an internal review on the basis that information requested from Mr Carl Nielson and Dr Lim had not been received.

5.   On 25 October 2018, ACJ lodged an application for merit review with the Dispute Resolution Service.

Submissions

6.   By email dated 10 December 2018, ACJ’s representative advised that the only matters in dispute are ACJ’s post-accident earning capacity and his continuing entitlement to statutory weekly benefits under Division 3.3 of the Act.

7.   The Insurer’s reply dated 12 November 2018 is quite detailed but may be summarised as follows:

  • The report of Dr Rosenthal dated 10 July 2018 states that ACJ “should now not be preventing him from returning to work in a physical capacity”. Dr Rosenthal thought that ACJ’s psychological symptoms needed to be addressed, particularly his fear of driving to work.
  • In relation to ACJ’s psychological symptoms, there are inconsistencies between the findings of Mr Nielson in the Allied Health Recovery Request and Dr Linda Wang (GP) in relation to whether the claimant was experiencing nightmares and flashbacks.
  • ACJ’s inability to drive as detailed by Mr Nielson and the GP are inconsistent with the surveillance report dated 10 July 2018 which observed the claimant driving on 19 June 2018 and 10 July 2018. It is also submitted that the surveillance shows ACJ’s ability to commute by public transport which is a reasonable course of action in light of ACJ’s duty to minimise his loss.
  • On the evidence available, ACJ is fit to return to his pre-injury duties from 10 July 2018.

Legislation

8.   In conducting my review, I have considered the following legislation and guidelines:

  • Motor Accident Injuries Act 2017 (NSW) (the Act)
  • Motor Accident Guidelines effective 30 April 2018 (the Guidelines)
  • Motor Accident Injuries Regulation 2017 (NSW) (the Regulation)

Documents and information considered

9.   Below is a summary of the information that I consider relevant to the determination of ACJ’s post-accident earning capacity.

Allied health recovery requests (AHRR)

10.   There have been several allied health recovery requests completed by various health practitioners.

James Luu, Physiotherapist

11.   Mr Luu, physiotherapist, completed the AHRR form on 26 April 2018. He diagnosed the injury as cervical neck pain, lower back pain and bilateral shoulder pain.

12.   Mr Luu noted the following factors regarding recovery:

  • over active upper traps in the right shoulder
  • inflamed low back muscles
  • difficulty with prolonged and repeated bending.

13.   Mr Luu devised an action plan which included ACJ’s attendance at scheduled appointments and to comply with prescribed self-managed exercise programs.

14.   Regarding capacity for work, Mr Luu found that ACJ was “unable to return to work at this stage”.

Carl Nielsen, Psychologist

15.   Mr Nielsen, psychologist, completed the AHRR form on 10 May 2018. He diagnosed Acute Stress Disorder as a result of the nature of ACJ’s job and found him unfit for work duties.

16.  ; Mr Nielsen recommended that ACJ attend all scheduled appointments and to perform various self-directed exercises such as sleep hygiene, muscle relaxation techniques, cognitive and behavioural therapy.

Ching Hin Aaron Poon, Physiotherapist

17.   Mr Poon, physiotherapist, completed the AHRR form on 27 September 2018. He noted treatment commenced on 26/04/2018 and that 13 sessions had been provided to date. Mr Poon stated that ACJ was “not working due to symptoms” and to continue to attend scheduled appointments.

Certificate of capacity/fitness

18.   I have a number of certificates of capacity/fitness completed by Dr Eric Lim who is ACJ’s treating doctor. These certificates were issued bi-monthly and cover the period from 28/06/2018 to 8/11/2018.

19.   Dr Lim diagnosed the injuries as cervical spine radiculopathy, bilateral shoulder strain, thoracic spine strain, lumbar spine strain and acute stress disorder. The acute stress disorder was amended to PTSD on the certificate dated 12/07/2018.

20.   Treatment involved modified activities, physical therapy, and pain management. Medication included simple analgesics, Panadeine Forte and the prescription of Valdoxan, an antidepressant. Dr Lim also referred ACJ to a physiotherapist and psychologist.

21.   Dr Lim felt that ACJ had no current capacity for any work and this certification remained in place in all certificates issued. The factors delaying recovery initially comprised of severe pain, delays in treatment and a declined MRI, however from 6/08/2018, this was changed to “PTSD with ongoing thoughts”.

Clinical notes

22.   The clinical notes dated from 26/04/2018 to 26/07/2018 have entries that are largely consistent with that reported in the certificates of capacity/fitness and the findings of the various practitioners that have treated ACJ.

23.   There were references to ACJ’s capacity to drive as follows:

April 26: “Anxious and cautious to drive”

May 10: “Can’t drive due to trauma”

July 12: “There have been issues with driving”.

Dr Thomas Rosenthal

24.   Dr Rosenthal noted that Dr Lim issued a Certificate of capacity/fitness on 26/04/2018, some 19 days after the accident. The latest certificate before Dr Rosenthal was dated 28/06/2018.

25.   Dr Rosenthal found that ACJ sustained soft tissue injuries which were expected “to resolve within the next three months”. Dr Rosenthal recommended an active exercise physiology programme to restore function for the next three months.

26.   Dr Rosenthal also stated that there was a psychological injury present which is still under treatment and that ACJ’s unfitness to work “appears more related to his psychological injury rather than any physical components. Dr Rosenthal noted a history of ACJ being fearful to return to driving which is impacting on his return to work.

27.   Dr Rosenthal concluded that from a physical perspective, ACJ could return to pre-injury work, however “the psychological issues do need to be addressed”.

MJM – Surveillance Investigation Report

28.   MJM provided two surveillance investigation reports dated 10/07/2018 and 13/09/2018.

29.   The report dated 10/07/2018 states that ACJ was observed to drive from his residence in Carlingford, dropping off a child to a school in Ermington. ACJ then drove directly back to his residence. On a different day, ACJ was observed to attend a medical appointment. He was seated on trains for “long periods” using a mobile phone; walking up and down stairs; walking street areas; standing for long periods and driving known Nissan vehicle.

30.   In the report dated 13/09/2018, ACJ was observed to drive non-stop from Carlingford to  Campsie in peak hour traffic. He then drove to shops in in Flemington, a medical office in Parramatta, parked at a Westfield, attended a private address in West Pennant Hills, a service station and driving back to his residence in Carlingford.

Entitlement period for weekly payments

31.   The following provisions of the Act provide the basis for determination and calculation of an injured person’s weekly payments entitlement:

  • Weekly payments in the first 13 weeks after the motor accident are to be determined in accordance with section 3.6 of the Act (‘the first entitlement period’)
  • Weekly payments in weeks 14–78 after the motor accident are to be determined in accordance with section 3.7 of the Act (‘the second entitlement period’); and
  • Weekly payments after the second entitlement period (after week 78) are to be determined in accordance with section 3.8 of the Act.

32.   ACJ was injured on 7 April 2018 and therefore his entitlement to weekly payments falls within the first and second entitlement periods and are to be calculated in accordance with sections 3.6 and 3.7 of the Act.

Post-accident earning capacity

33.   Clause 8(1) of Schedule 1 of the Act defines post-accident earning capacity relevantly as:

(1)  Post-accident earning capacity of an injured person means:
(a)     For the first and second entitlement periods – the weekly amount that the person has the capacity to earn in the employment in which the person was engaged immediately before the accident, determined on the basis of the person’s fitness for work in that employment, …

34.   “Fitness for work” is defined in subsection (2) as:

(2)     A person’s fitness for work during the first and second entitlement periods is to be determined having regard to the following:
(a)     the nature of the injury and the likely process of recovery,

(b)     treatment and rehabilitation needs, including the likelihood that treatment or rehabilitation will enhance earning capacity and any temporary incapacity that may result from treatment,

(c)  any earnings of the person in any employment engaged in by the person after the motor accident,

(d)  any medical certificate provided by the injured person as to the person’s fitness for work.

35.   Accordingly, ACJ’s post-accident earning capacity will be determined by reference to his fitness for work in his pre-injury employment as a Cleaner, having regard to the matters in (a)-(d) of subsection (2).

36.   It is common ground that in the months following the accident, ACJ had a total loss of earning capacity as a result of his injuries. His treating doctor, Dr Lim, confirms this in the certificates of capacity/fitness issued. This view is consistent with ACJ’s physiotherapist Dr Luu who scheduled further appointments together with a plan for self-managed exercises. This period was from the date of injury 7 April 2018 to the appointment with Dr Rosenthal.

37.   Dr Rosenthal examined ACJ on 9 July 2018 and formed the view that ACJ’s physical injuries would not prevent him from returning to his pre-injury work. It is on the back of Dr Rosenthal’s opinion that the Insurer found ACJ to be fit to return to work from 10 July 2018.

38.   At the time of Dr Rosenthal’s report however, ACJ continued to see his treating doctor, Dr Lim, who did not change his opinion that ACJ was totally unfit for pre-injury work. This view was consistent with the opinion of a subsequent physiotherapist, Mr Poon, who in a report dated 27 September 2018, stated that despite 13 treatment sessions already provided, ACJ was “not working due to symptoms” and to continue to attend scheduled appointments.

39.   In my view, Dr Rosenthal’s opinion on 9 July 2018 is outweighed by Dr Lim’s continued opinion that ACJ has no work capacity. Dr Lim’s opinion is expressed in numerous certificates of capacity/fitness which directly address ACJ’s fitness for work and is a relevant consideration under clause (d) of the definition for “fitness for work”. ACJ’s opinion is supported by the subsequent consultation of physiotherapist Mr Poon.

40.   In addition, intertwined with the physical injuries was a history of psychological symptoms, which increased in severity enough for Dr Lim to include a diagnosis of PTSD in the certificate dated 6 August 2018. Even Dr Rosenthal recognised the presence of a psychological element, having included a diagnosis of “psychological injury” despite acknowledging that such an injury was outside his field of expertise.

41.   The diagnosis of psychological injury was confirmed by psychologist, Mr Nielsen, who in an AHRR report dated 10 May 2018, diagnosed Acute Stress Disorder and found ACJ to be unfit for work duties.

42.   It is unclear whether ACJ still suffers from psychological symptoms given that there is no further report from Mr Nielsen or any other psychologist. However, Dr Lim has continued to include the diagnosis of “PTSD with ongoing thoughts” in the most recent certificate before me dated 8 November 2018. This is enough in my view, to support a finding that ACJ’s psychological symptoms still prevents him from having any post-injury earning capacity.

43.   I have also considered the two surveillance reports from MJM. While the surveillance reports certainly suggest that ACJ is driving, at least on the dates of the surveillance footage, there are references in Dr Lim’s clinical notes to suggest that while ACJ is anxious or cautious when driving, there is only one entry on May 10 that says he can’t drive due to trauma. The subsequent entry on July 12 indicates that “There have been issues with driving” which suggests that ACJ has been driving.

44.   I do not accept that surveillance reports taken some two months apart (10/07/2018 and 13/09/2018) showing ACJ driving on 2-3 days in a personal context outweighs the opinions of treating doctor Dr Lim and psychologist Mr Nielsen that ACJ has a psychological injury that prevents him from currently working or driving as part of his pre-injury work duties.

45.   I therefore find ACJ to have no post-accident earning capacity as a result of the physical and psychological injuries sustained as a result of the accident on 7 April 2018. I find that ACJ has continued to have no post-accident earning capacity at the time of the Insurer’s reviewable decision dated 30 August 2018.

Determination

My determination of the Merit Review is as follows:

  • The reviewable decision is set aside and the following decision is made in substitution:
o   ACJ has no post-earning capacity from 7 April 2018 to 30 August 2018.

o   ACJ has no post-earning capacity from 30 August 2018.

o   The Insurer is to calculate ACJ’s weekly payments under Division 3.3 of the Act in accordance with this determination.

o   The Insurer is to pay ACJ the difference of payments already made and any amounts owed to him in accordance with this determination.

Jeremy Lum
Dispute Resolution Service Merit Reviewer