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Zirein v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPIC 442 (4 September 2023)

Last Updated: 23 February 2024

STATEMENT OF REASONS

1. The Assessment Conference was on 27 June 2023.
2. Post-Assessment Conference Directions were made, whereby the Claimant’s Solicitor was to provide further Submissions on Damages by 10 July 2023. They were received on 3 July 2023.
3. The Insurer’s Solicitor was directed to make Submissions in Reply on Damages, and Submissions of Disbursements, by 17 July 2023. These Submissions were received on 12 July 2023.

INTRODUCTION

4. The Claimant was injured in a motor vehicle accident on 12 February 2019 and claims damages, which he alleges he sustained as a result of that accident. The Insurer contests the measure of damages.

The accident

5. The Claimant provides details of the accident in his statement of 8 June 2023 (‘the statement’):

[16] On 12 February 2019, at about 7:45 am, the Claimant, driving to work, was stationary in his car and waiting to turn left on Stoney Creek Road, Bexley, when another vehicle collided heavily with the rear, while the Claimant had turned his head to the right, looking for a break in the traffic. The Claimant says that while he was looking to the right, his head was jerked back suddenly, and on the jerk-back motion, his right temporal area struck the frame of the door quite forcefully, causing a haematoma.

[19] The impact caused the vehicle to be bumped forward a distance. The airbags did not release.

[20] The Claimant said he immediately began to feel pain in his left shoulder and mid thoracic spine. He had a headache within several minutes of the impact. The pain in his left shoulder and mid-back gradually got worse over the next 30 or so minutes.

[21] After the accident, the Claimant drove himself to the Emergency Department of Canterbury Hospital.

6. The Claimant alleges that he has sustained injury, loss, and damage, the assessment of which, is the subject of these Reasons.

The issues

(a) Breach of duty of care and liability

7. The Insurer concedes breach of duty of care and that the Claimant is entitled to some damages as a result of the accident.

(b) Heads of damage and whether or not disputed

8. The Claimant concedes he is not entitled to damages for non-economic loss.
9. The Claimant claims an amount for past-economic loss and past loss of superannuation. The Insurer’s position is that having regard to the evidence, it is prepared to make an allowance for the past of $737.40 for two days at pre-accident rates, plus superannuation.
10. The Claimant claims a buffer for future economic loss of $150,000.00. The Insurer disputes this and submits that the Claimant’s assumptions of fact do not accord with the best available evidence.

MEDICAL TREATMENT AFTER THE ACCIDENT
Canterbury Hospital Emergency Department

11. The Claimant was in the Emergency Department of Canterbury Hospital from about 8:30 am on the day of the accident. He had an X-ray of his cervical spine and his thoracic spine and was discharged at about 10:30 am.
12. The Progress Notes report [page 3]:

“Triage Date/Time TC : 12-02-2019 08:30

...

Triage Category TC : 3

...

Austin, Julie (Registered Nurse) -12-02-2019 08:30

Triage Comment - TCH : MVA stationary and hit from behind, hit head on side support of car. Has headache, left lateral neck pain and central thorasic [sic] back pain. O/E able to move chin to chest, back pain worse with movement, nil obvious injuries.nil med hx...”

13. The Progress Notes give a history of the accident [page 5]:

“History of presenting complaint

Complains of lateral left sided neck pain and thoracic back pain

Was stationary in car when struck from behind

Struck his head on side of door

Airbags did not deploy

Able to move neck to full range of motion

Denies any neurological deficits.”

14. The Medical Imaging results record [page 6]:

“Xray Chest and Spine 3 Regions

...

SPINE:

No acute fracture or dislocation is demonstrated in the C, T or L-spine.

There is reduction of disc height and endplate osteophyte formation at C5/6.

There are mild endplate degenerative changes throughout the T-spine.

Lumbar disc spaces are maintained.”

15. The Canterbury Hospital Emergency Department Discharge Summary reports [page 2]:

“Dear Doctor,

Thank you for your ongoing care of this patient. Mr ZIREIN presented to TCH emergency Department following a MVA. He was stationary in his car when he was struck from behind. His airbags did not deploy and he struck his head on the right side of the door.

He did not have any loss of conciousness, [sic] neurological deficits or c-spine tenderness. Following this event he developed gradual onset lateral left shoulder pain and mid thoracic back pain.

On examination he looked well. He had full range of motion of the neck without any c-spine tenderness. He had minimal tenderness to palpation over the left trapezius muscle. He also had some paraspinal thoracic tenderness to palpation which was also mild. He had no cranial nerve deficits and mobilized independently [sic]. He had no other neurological deficits. He underwent a xray of his c-spine and thoracic spine which was normal.

As he works as a radiographer in the hospital we have advised that should his pain not resolve than he should undergo a CT c-spine and thoracic spine. He was given an outpatient request form. We have discharged him home on simple analgesia and recommended that he return to ED should his pain worsen and not respond to simple analgeisia [sic].”

16. The Claimant states that after his Discharge from the Emergency Department he did not work that day because he was in pain and was shaken up. He went home to rest and used two days of sick leave. He states that throughout the day, the pain in his left shoulder and mid-back gradually got worse and he began to notice pins and needles in his left arm extending down to his hand and fingers.

Campsie Family Medical Centre

17. The Claimant attended the Campsie Medical Centre on 13 February 2019 and saw Dr Nancy Yinan Jia, who recorded the following in her clinical notes:

“today is painful in shoulder, neck and upper back – also numbness travelling down left arm”

18. The Claimant states [25] that he returned to work on 14 February 2019, but that during his shift, he began to:

‘... experience a pretty severe headache...’

19. After work, at about 5:00 pm, he attended Dr Jia, who recommended that he undergo either a CT or MRI scan.
20. The clinical note recorded on 15 February 2019, by Dr Jia stated:

“worsening headache frontal and occipital areas - also some thoracic pain...

very concerned”

21. The Claimant states [28] that some time after 14 February 2019, he started physiotherapy. He says that within a week or so of 14 February 2019, he began to experience pins and needles in his right upper arm, extending down to his right wrist and hand.
22. He states [28] that on 12 March 2019, he saw Dr Jia again because of the pins and needles down his left arm, and because the physiotherapy was not improving his symptoms:

“Furthermore, Mr. Zirein's initial presentation had red flag signs of cervical radiculopathy, with numbness down his left arm. While Mr. Zirein has had similar symptoms before, they have always been relatively mild and resolved with physiotherapy. My concern is that this added trauma has irreversibly exacerbated Mr. Zirein's original cervical spine issues. Not only does he have worsening left arm cervical radiculopathy, he is experiencing new radiculopathy down his right arm. Without imaging, we are unable to identify whether this head trauma, which an MRI was approved for, has resulted in a carry-on effect to the cervical spine. We are further unable to identify whether surgery would be an appropriate management to rectify this exacerbation, or if physiotherapy is sufficient.”

23. The Claimant saw Dr Jia again on 18 March 2019 because his symptoms were worse than they had been when he saw her on 12 March 2019:

“On re-examination today, I can confirm that Mr. Zirein has:

1. Reproducible sensory loss in left arm C8 T1 dermatomes

2. Muscle weakness in his left finger flexors, and abductors (to a lesser extent), which correspond to C8-T1 nerve roots.

As these 2 clinical signs are included in clause 6.138 of SIRA's guidelines, I believe an MR1 to the affected spinal areas is in order.”

24. On 22 March 2019, the Claimant had an MRI of the cervical spine.
25. On 25 March 2019, the Claimant saw Dr Jia again:

“discussed results with Mr Zirein

- significant changes in c6/6

- worse when compared to MRI c-spine performed in 2017

unsure if this is natural progression of pathology, or caused by second MVA with head strike”

26. Dr Jia reported to the case manager at NRMA on 25 March 2019:

“I am unsure whether the disease progression has been exacerbated by the most recent MVA. I would recommend Mr Zirein to be seen by a rehabilitation specialist... (He) did report a right-sided head strike as a result of the MVA which may have cause [sic] extra injury to the cervical spine. Of note, the left side is more symptomatic than the right, which would match the direction of injury.”

27. Dr Jia referred the Claimant to a neurosurgeon & spine surgeon, Dr Omprakash Damodaran, who reported back to her that he had reviewed the Claimant on 8 April 2019. He took a history consistent with what has been reproduced above:

“While stationary in the car, he had a rear-end collision with another car. He reports significant neck movement and his neck hitting the steering wheel. Since the accident, he has developed significant neck pain and bilateral radiculopathy. The left-sided symptoms are fairly significant and it radiates down the C6 distribution. There are also intermittent right-sided symptoms. In 2017, he also had motor vehicle accident and at that time had neck pain and intermittent cervical radiculopathy, but this improved with conservative management over six months. Since 2017, he did not have any further neck pain or radicular pain. He denies any upper limb incoordination issues or any lower limb gait issues. He does not have any other significant past medical history and he currently works as a radiographer at Canterbury Hospital.”

28. On physical examination, the Claimant had a limited range of neck movements.
29. Dr Damodaran referred to the MRI, which demonstrated C5/6 and C6/7 disc prolapse. It was causing:

“...Severe compressions of the left C6 nerve root. There is also severe compression of the right-side C7 nerve root...”

Medico legal expert opinion

30. Conjoint Associate Professor David Champion (Dr Champion) reported on 7 March 2022. He took an extensive history. He conducted a physical examination reaching the conclusion that:

“...Mr Zirein has:

• Mildly symptomatic cervicothoracic spinal pain with pain provocation by deep pressure stimuli from CS to about T2

• Cutaneous sensory signs in the left more than right upper limb mainly, not entirely, (on the left side) within C6 dermatomal distribution. The abnormal mechanosensitivity of the brachial plexus to stretch manoeuvres raises the question as to whether there is a brachial plexus hyperexcitability component to the neuropathic symptoms in the upper limbs, but he probably truly also has left C6 radiculopathy (hyperexcitability phenomena can spread within peripheral nerve distribution).”

31. Dr Champion reviewed the imagining investigations which included the MRI cervical of 22 March 2019 (the earlier MRIs were not available)
32. Dr Champion considered the medicolegal report of Dr Casikar of 15 December 2021, being highly critical of that report (see the comment of page 9)
33. Clearly, Dr Champion accepted that the Claimant:

“...presented in a pleasant, responsible, and reasonable manner giving me no reason to question his integrity... he was very forthcoming in acknowledging the extent of pre-MVA symptoms...

Prior to the subject MV A, Mr Zirein was specifically vulnerable to recurrence of paraesthesiae, and potentially with neuropathic pain in his upper limbs particularly the left upper limb. After the second MV A, he underwent MRI cervical spine which was reported on 25 January 2017 as showing small disc protrusions, notably at C5/6 and C6/7. There was minimal bilateral foraminal encroachment especially at C5/6 by disc and osteophyte. He had experienced left C6 dermatomal distribution of neuropathic symptoms, mainly pins and needles in his left upper limb and it had taken 2 years for the symptoms to settle after the 2016 MV A. Although those symptoms had settled, he clearly retained vulnerability to recurrence of such peripheral neuropathic symptoms. He has certainly been unlucky being involved in rear end collisions on 3 occasions.”

34. Dr Champion formed the opinion that:

“The MVA on 12 February 2019 was a rear end collision with Mr Zirein not being aware of the impending collision and so he was not prepared for it. He was probably looking to the right and asymmetry is a risk factor for adverse cervical spinal outcomes. There was initial pain in the cervicothoracic region of his spine but paraesthesiae in the left upper limb predominantly in C6 dermatomal distribution recurred more intensely than previously experienced. Furthermore, he acquired milder intermittent symptoms in similar distribution in the right upper limb.”

35. Dr Champion commented on the MRI imaging of 22 March:

Comparing this report with the report of 25 January 2017 there had been progression of central spinal canal narrowing, progression of bilateral CS/6 foraminal stenosis due to a combination of disc bulge with degenerative changes, and development of bilateral C4/5 exit foraminal narrowing due to uncovertebral joint degenerative change. A significant component of the progression of pathology was degenerative. The impact of the subject MV A through whiplash type of injury was probably impact on the intervertebral disc bulge at CS/6 but more particularly it very likely caused a one hit impact on the C6 cervical spinal nerve roots especially on the left. The treating neurosurgeon Dr Damodaran accepted that there had been progression in the interval between the two MRI series and stated that CS/6 disc prolapse was causing severe compression of the left C6 nerve root. He mentioned also severe compression of the right sided C7 nerve root although that had not been reported. Regardless of MRI-revealed pathology, the history clearly indicated significant impact on the cervical spine on the development of symptoms including left more than right C6 radicular symptoms with minor signs.”

36. Dr Champion’s assessment of the consequences of the 2019 accident were set out on [page 11]:

“He has a chronic secondary (secondary to the MVA and to earlier injuries from MVAs and to degenerative changes), musculoskeletal cervical spinal pain syndrome with mild pain arising mainly from the mid and low cervical spine and upper thoracic spine and associated left more than right C6 sensory radiculopathy. I was not able to determine a tendon reflex or motor features of radiculopathy. On the left side brachial plexus hyperexcitability and the distribution of sensory symptoms and signs suggest that there is an additional contribution from either primary brachial plexus injury with hyperexcitability sustained in the MVA or secondary hyperexcitability of the brachial plexus as discussed earlier. The underlying pathology was discussed in the MRI context above.”

37. Dr Veejay Casikar, who saw the Claimant once on 15 December 2021, reported on the same day with a diagnosis of a Whiplash injury, with the opinion that this diagnosis was consistent with the accident and the symptoms. The neurological examination was normal, and he has recovered without the need for any further treatment. He added:

“I agree with the opinion of Dr Damodaran”

38. The opinion was after clinical examination, which indicated normal movement of the neck in all directions, a normal neurological examination, and no evidence of motor weakness. The opinion included examination of the diagnostic investigation of 8 March 2019, 22 March 2019, and 25 January 2017 [MRI of the cervical spine]. This was said to show age-related changes.
39. Dr Casikar considered that the Claimant had a minor injury:

“... Because the car was drivable, and he did not have any significant problems with his cervical spine. It was basically a soft tissue injury. He had some neurological symptoms which seems [sic] to have resolved. The neurological examination was normal.”

40. Dr Casikar was of the opinion that the Claimant did not have any ongoing disabilities caused by the subject motor vehicle accident. He had not stopped working and was doing his normal hours as a radiographer. He did not require any medical treatment and he had completely recovered, nor was there likely to be any future problems with work.

Assessment of Whole Person Impairment by Dr Nelukshi Wijetunga of 9 March 2023

41. Dr Wijetunga assessed Whole Person Impairment (WPI) on 9 March 2023 and certified on 10 March 2023 that the injuries, namely Cervical Spine Whiplash Associated Disorder and Thoracic Spine Whiplash Associated Disorder, gave rise to a Permanent Impairment of 5%.
42. Dr Wijetunga noted that the Claimant had two previous motor vehicle accidents, both of which resulted in left arm pins and needles and neck pain, which had been diagnosed as whiplash. He had undergone physiotherapy treatment after each accident, and the symptoms had taken about 18 months to settle.
43. The subject motor vehicle accident was relatively minor, in so far as there was no airbag deployed, no Police or ambulance attended, and the car was repaired.
44. Dr Wijetunga further commented that the MRI demonstrated severe degeneration reflected in stenosis from discophytes which are a feature of a degenerative process. The MRI was taken in March 2019 [page 14 of the Report] and degeneration takes many years to form and therefore the degeneration was pre-existing.
45. Dr Wijetunga continued that, given that at the time of the collision the Claimant hit his head against the driver’s-side window frame, it was plausible that he aggravated this condition. Additionally, the mechanism of accident was consistent with a whiplash condition. She concluded that the subject accident was causally related to the neck and upper thoracic spine injuries, along with the left and right arm injury, with the latter being involved only as a result of referred symptoms. There was no direct injury to the left or right arm.
46. Dr Wijetunga continued that the method of the accident was not sufficient to result in forced lumbar flexion or internal disruption to either shoulder or hips, and the accident did not cause injuries to the lower back, bilateral shoulders, or bilateral hips. In any event, the Claimant did not describe symptoms in those areas.
47. Further, Dr Wijetunga was of the opinion that the presentation did not meet the definition of radiculopathy in s 6.138 of the MAA Guidelines.

Information provided at the Assessment Conference

48. At the Assessment Conference, the Claimant answered questions put to him by his Counsel and by the Insurer’s Solicitor.
49. He said that, as at December 2018, that is, prior to the accident, he was still working at Ryde Hospital in the capacity of Assistant Chief Radiologist. That role had a physical component as about 30-50% of his work was physical and included having to attend approximately 5 times per day to ‘patslide’ manoeuvres, that is, for moving a patient either along a bed, or from bed to chair, or from chair to chair.
50. The Claimant said that if he were required to do too much physical activity, he would experience pins and needles in his left arm, as would be the case if he was required to carry or lift anything heavy.
51. The Claimant said that, in January 2019, he obtained a position at Canterbury Hospital as Chief Radiographer. This was less hands-on than his previous job as he was in a managerial position.
52. The Claimant said that the work at Canterbury Hospital was much lighter than that in the previous job. By the time he started working at Canterbury Hospital he was feeling “pretty good.” In that job, and currently, he was normally not required to do heavy work but might have some heavy components of his work, about 5 times per week. Much of his work was in front of computers, and there was a significant clinical role.
53. The Claimant, in cross-examination, was shown a letter, reproduced at [A44].
54. The Claimant was asked about his exercise activities, some of which involved heavy lifting (e.g., 60 kg including the bar press, 3 set of 8-10 repetitions) and various other significant exercise activities including dumbbells and German Deadlifts.
55. The Claimant said he would not be able to do that sort of gym work now.
56. The Claimant said his last formal physiotherapy treatment was in July 2021. He also said he had not seen his GP since about November 2020, nor had he seen the neurosurgeon since 2019. He said he tries to avoid taking medicines and was not taking Naprosyn.

Submissions by the Claimant of 9 June 2023

57. The Claimant made the following Submissions of 9 June 2023, briefly summarised by reference to paragraph numbers:

[1] Refers to the accident and claims that the impact was significant.

[2] As a result of the accident, the Claimant began to experience pins and needles in his left arm extending to his hand and fingers. A short time later, he also began to experience pins and needles in his right arm, extending to his hand and fingers.

[3] He had similar symptoms in his left arm and hand following the accidents in 2011 and 2016. His symptoms arising from each of those accidents had all but resolved before the subject accident.

[5] The injuries and disabilities sustained by the Claimant were all caused by the subject accident.

(a) They are different to those sustained in 2011 and 2016.

(b) They are permanent, whereas the injuries and disabilities sustained in 2011 and 2016 were “essentially transient”.

[6] The Claimant is reliable and credible.

[8] The Claimant has been frank in the histories he has given, including to Dr Champion, noting that he told him that his psychological symptoms were the result of his marriage breakdown rather than the accident.

[10] (a) The Claimant continues to experience intense pins and needles in his left arm extending down to his hand and fingers on a constant basis

(b) He continues to experience intense pins and needles in his right arm extending to his hand and fingers on a constant basis.

(c) The pins and needles sensation is intense and requires him to stand and stretch for 30 or so minutes.

(d) Never experienced symptoms to this extent before (even after 2011 MVA and 2016 MVA)

(e) The similar symptoms experienced after each of the earlier MVAs essentially resolved at around 18 months to 24 months after physiotherapy

[11] The extent and duration of the symptoms can be explained when comparing the Claimant’s previous MRI scans of the cervical spine.

[12] Dr Champion, comparing the 2017 MRI and 2019 findings, was of the opinion that in 2017, although there had been a disc prolapse at C5/6, it was not as bad as the 2019 findings. The nerve compression in 2017 was mild to moderate and not as severe as in new imaging.

[13] Dr Damodaran was of a similar opinion that the MRI from 2017 demonstrated a C5/6 disc prolapse which was not as bad as that in 2019. Also, the nerve root compression in 2017 was mild to moderate and not [as] severe as in new imaging.

[14] The evidence justifies finding that the injury sustained in the subject accident is an injury in the nature of a permanent exacerbation of a disc prolapse at C5/6, with an associated exacerbation of nerve root compression.

[15] Such a finding would explain the Claimant’s ongoing symptoms since the subject accident, when compared to the limited symptoms experienced following the 2011 motor vehicle accident and the 2016 motor vehicle accident.

[16] The Claimant’s evidence is that given the duration and severity of the symptoms, he would have surgery if it was recommended. When surgical intervention was previously raised by Dr Damodaran, it was at an early stage of the symptoms, and he assumed that they would resolve.

[17] Dr Champion opines that there is a probability greater than 50% that, sooner or later, the Claimant will require surgery for the left C6 nerve root compression. This is consistent with Dr Damodaran’s initial opinion that surgical treatment is the last option if the Claimant fails conservative treatment.

Insurer’s Submissions of 15 June 2023

58. The Insurer’s final Submissions, made 15 June 2023, run to 11 pages. I summarise them by reference to the subject matter of each section, as the Submissions are set out in such a way that any other summary will run to many pages:

[2.1] Refers to the Pre-accident treating evidence, seeking to show that the Claimant had a long and significant history of relevant spinal problems. The Insurer refers to to cervical complaints as early as 2003, low back pain first reported in 2009, the motor accident of 2011 and its relevant consequences, the entries in the clinical notes of Campsie Medical Centre in March, May and July 2011, the report of Dr Bruce Trevitt of 6 June 2012, the symptoms experienced in August 2012 and the referral to Dr Woo, Dr Woo’s report of 15 August 2012, and the reference to ongoing neck pain and numbness, the further report of Dr Woo on 22 October 2012 and the diagnosis of a strain injury to the cervical spine causing aggravation of pre-existing but asymptomatic degenerative changes at C4/5, C5/6 and C6/7, the disc osteophyte lesion at C4/5, the second motor vehicle accident of 29 July 2016, the relevant medical records of Campsie Family Medical Centre for July and August 2016 and January 2017, the third MRI of 25 January 2017 and what it showed and the history given to Dr Damodaran in 2019.

The Insurer submits that I should find that the pre-accident injuries remained symptomatic and continued to effect [sic] the Claimant’s work capacity, immediately prior to the subject accident.

The Submission notes that the Claimant changed jobs from Ryde Hospital to Canterbury Hospital, one month pre-accident, so as to reduce the need for him to be involved in manual handling.

59. The Submission goes on to review the post-accident treating evidence and notes that there was no attendance by an ambulance at the scene.
60. X-Rays taken at Canterbury Hospital did not show any fracture or dislocation, that the Claimant was subsequently discharged with a recommendation for simple analgesia.
61. The Submission notes that Dr Jia certified the Claimant as being unfit to work until 13 February 2019, and a second Certificate of 13 February 2019 certified that the Claimant was fit for his pre-injury work.
62. The Submission then refers to the MRI scan of the cervical spine of 22 March 2019, and Dr Jia’s report of that scan of 25 March 2019.
63. The Submission then refers to the reports of Dr Damodaran, commencing on 12 April 2019 to his final report of 23 October 2019.
64. The Submission then refers to the Allied Health Recovery Request of 13 July 2019 and notes that the Claimant was reported to have re-aggravated his neck symptoms and arms with restrictions in heavy lifting.
65. The Submission refers to the report of Dr Tong of 8 November 2020 [A31] that the Claimant had lifted 80Kg and had felt sudden pain in both sides of the groin.
66. Finally, the Submission notes that there were no accident-related presentations at the Campsie Family Medical Centre after 21 November 2020.
67. The Submission refers to the report of Dr Casikar of 15 November 2021 and to his diagnosis. It then notes the Claimant’s reliance on the report of Dr Champion of 7 March 2022 and his diagnosis, the fact that he was highly critical of the report of Dr Casikar and Dr Casikar’s response, which the Insurer summarises at page 4 of the Submission.
68. The Insurer’s Submission is that the mechanism of the injury must be considered in coming to a diagnosis, not just the radiology report (heavily relied upon by Dr Champion to inform his diagnosis).
69. Finally, the Insurer submits that the Claimant had recovered and required no treatment.
70. The Submission then refers to the Report of Assessor Wijetunga of 10 March 2023 and, in particular, that Dr Wijetunga did not accept the mechanism of the accident as being consistent with the injury to the lumbar spine, hips or shoulders, all of which were normal on examination.
71. The Insurer, under Comment, submits that I would find that the Claimant suffered only cervical spine soft tissue injury and potentially, aggravation of the pre-existing degenerative changes as a result of the subject accident, that I would put no weight on the report of Dr Champion, as it is not consistent with persuasive and cogent body of evidence comprising the reports of Dr Casikar, Assessor Wijetunga, and the clinical records of the Campsie Family Medical Centre, which confirmed no accident related GP treatment in the last 2.5 years.
72. The Insurer submits that I would find that any accident-related injury has resolved or, in the alternative, since at least November 2020, been so minor as to require no GP treatment and only intermittent simple analgesia, consistent with the Claimant’s ability to work full time in pre-accident duties, uninterrupted after the initial two-day absence.
73. Finally, the Insurer submits that I would not accept the Submission that any surgery is causally related, noting the Claimant has not required GP treatment for more than two years and takes only simple analgesia, i.e., does not need surgery.
74. The rest of the Submission refers to assessment of damages.

Consideration of credit of the Claimant

75. The credit of the Claimant is intact. He has demonstrated consistency in the histories that he has given to the medical examiners. There is no reason to doubt the honesty of his account of his symptoms. The question of causation, however, remains.
76. A significant element in concluding that the Claimant is a reliable and credible person is his dedication to his employment. He is obviously not a malingerer as he was back at work after two days.

Consideration of the medical consequences

77. The opinion of the treating neurosurgeon and spine surgeon, Dr Damodaran, is significant. Normally, one will pay considerable attention to the opinion of a treating specialist, particularly when they have seen the Claimant on a number of occasions. There are good reasons for this. The specialist is advising the General Practitioner, and given that the General Practitioner made the referral, presumably, she will take notice of his advice and management recommendations. Therefore, a reputable specialist (and there is no reason not to consider Dr Damodaran reputable) will give careful attention to the patient who has been referred to him. Furthermore, as a matter of common sense, the specialist will care because it relates to the reputation of his practice. Dr Damodaran accepted the history and presentation of left-sided symptoms as “fairly significant” and he also accepted the Claimant on the radiation down the C6 distribution. He accepted the Claimant’s history that:

“...Since 2017, he did not have any further neck pain or radicular pain...”

78. Dr Damodaran was of the opinion that the Claimant has bilateral C6 radiculopathy following the subject motor vehicle accident and that it has been a drug (presumably read “direct”) contributing factor to the development of the symptoms.
79. Dr Damodaran continued:

“...In 2017, his symptoms were mild and improved with conservative management...”

80. By contrast, Dr Casikar saw the Claimant once, for the purpose of provision of the report to the Insurer’s Solicitor. He does say that “I agree with the opinion of Dr Damodaran” but does not specify to which opinion he refers. Dr Casikar qualifies this in his second report of 19 May 2022, where he says that he has three reports of Dr Damodaran. He does not, however, clarify his comment of ‘agreement’ with Dr Damodaran and precisely what he meant by this.
81. Dr Casikar did not accept Dr Champion’s opinion that his examination was “cursory”, but he did not say what time he actually spent. Given that Dr Casikar says that he agrees with Dr Damodaran, and given that Dr Damodaran was the treating neurosurgeon/spinal surgeon, and given that Dr Damodaran saw the Claimant on a number of occasions, and for the reasons I have already stated in respect of the importance of the treating surgeon, given that I have considered the history of post-accident left sided symptoms, provided by the Claimant to Dr Damodaran, I prefer the opinion of Dr Damodaran to that of Dr Casikar. I also accept the findings of Dr Champion, referred to above [page 11], that:

“He has a chronic secondary [secondary to the motor vehicle accident and to earlier injuries from mvas and to degenerative changes], musculoskeletal cervical spinal pain syndrome with mild pain arising mainly from the mid and low cervical spine and upper-thoracic spine and associated left more than right C6 sensory radiculopathy.”

82. An opinion as to a ‘cervical spinal pain syndrome ...with mild pain’ is within the area of expertise of Dr Champion as a rheumatologist.
83. It is noteworthy that Dr Champion considered the Claimant to be:

“Demonstrably... fit for full time normal work as a Chief Radiographer and, given his high motivation, this will probably continue in the foreseeable future.”

84. Perhaps, this is what Dr Casikar agreed with – we will never know.
85. Dr Casikar conceded, by inference, Dr Champion’s standing:

“I did not expect a man of his professional standing to make such remarks.”

86. What Dr Champion does say is [bottom of page 9]:

“Prior to the subject MVA, Mr Zirein was specifically vulnerable to recurrence of paraesthesiae, and potentially with neuropathic pain in his upper limbs particularly the left upper limb. After the second MVA, he underwent MRI cervical spine which was reported on 25 January 2017 as showing small disc protrusions, notably at C5/6 and C6/7. There was minimal bilateral foraminal encroachment especially at C5/6 by disc and osteophyte. He had experienced left C6 dermatomal distribution of neuropathic symptoms, mainly pins and needles in his left upper limb and it had taken 2 years for the symptoms to settle after the 2016 MVA. Although those symptoms had settled, he clearly retained vulnerability to recurrence of such peripheral neuropathic symptoms. He has certainly been unlucky being involved in rear end collisions on 3 occasions.”

87. Dr Champion, though obviously only practising in the medico-legal area now, has been a senior figure as is clear from his CV (see, for example, his role in the Department of Rheumatology at St Vincent’s Hospital at page 2 of his CV).
88. I have not taken into account Dr Champion’s opinion on WPI in his second short report of 7 March 2022 as I am not required, given the opinion on WPI of Assessor Wijetunga.
89. Assessor Wijetunga’s opinion is binding on the issue of WPI, and I have already referred to what he wrote on diagnosis and reasons at [27]-[33] above. The pain syndrome diagnosed by Dr Champion is not inconsistent with Medical Assessor Wijetunga’s diagnosis of:

“Whiplash Associated Disorder and aggravation of underlying degenerative disease”.

ASSESSMENT OF DAMAGES
Past Economic Loss

90. In the Insurer’s Schedule of Damages [A8] it puts a figure for past economic loss of $737.40 and past loss of Superannuation at $81.11, giving a total for the past of $818.51.
91. In the Claimant’s Schedule of Damages [A6] the figure of $2,000 is proposed, but there is no evidence backing it up, as against proposing a figure without evidence.
92. I assess damages for past economic loss at $818.51.

Future Economic Loss

93. The Claimant submits that I should allow a buffer for future economic loss in the amount of $150,000.00.
94. There is no particular justification offered for this figure. The Submission on which it is based is [20]-[21]:

“20. But for the subject accident, the Claimant’s most likely future circumstances were that he would have continued to work in his current role, without having to endure constant pins and needles in both upper limbs, without any restriction in performing clinical tasks and with no prospect of being required to undergo surgical intervention which would necessarily involve taking time off work for the surgery and for the rehabilitation period.

21. The Commission would be satisfied that, taking into account the likely permanency of the Claimant’s ongoing injuries and disabilities and the likelihood that the Claimant will succumb to surgical intervention, that the subject accident related injuries have caused a diminution on his earning capacity which “may be productive of financial loss”: Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 at 347; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 (16 February 2012) at [24] per Basten JA.”

95. An issue with the claim for likelihood of surgical intervention is that apart from the short initial report of Dr Damodaran, there is little evidence on the question of spinal surgery and causation.
96. True enough, if the Claimant does come to spinal surgery, and if one accepts it was caused by the accident (I do), there is a reasonable argument for the need for a buffer for future economic loss, caused by the accident, as there would be a period of hospitalisation and a period of rehabilitation.
97. Dr Damodaran does say, however, [12 April 2019] that the accident has been a contributing factor to the development of symptoms (if I am correct in my inference the word “drug” is a typo and should be “direct”). He does refer to surgery but:

“Surgical treatment for this is the last option if he fails all conservative options”

98. The Claimant, in his most recent statement says:

“When Dr Damodaran discussed surgery with me several years ago, I was not interested, as at that time, I assumed that my symptoms would largely resolve like they had in the past. I have had to live with these symptoms every day for the last four years and four months. lf surgery were to be recommended for me on the basis that it would either resolve my symptoms or improve my symptoms, then I would likely undergo the recommended surgery.”

99. Dr Champion says at [page 12] of his report:

“It is timely for Mr Zirein to undergo progress MRI preferably at Alfred Imaging so that the changes over the 3-year interval can be assessed. If he takes his earlier MRI films from 20 I 7 that could be included in a comprehensive assessment over time. He requires then to be reviewed by Dr Damodaran or by another neurosurgeon/spinal surgeon, probably being influenced by his GPs guidance. If there is a decision to proceed with conservative management, there is a good case to be made for referral to a consultant rehabilitation physician and that will lead to direction about his activities of daily living and his work activities in an effort to reduce the impact on the C6 nerve roots and the left brachial plexus. There is a probability greater than 50% that sooner or later he will require surgery for the left C6 nerve root compression, possibly with spinal fusion but since he is not having much pain from the C5/6 mobile segment, there would be a good case to be made for simple decompression. A surgeon would better advise on the cost of such procedure, but I expect it would be more than $20,000.”

100. Dr Champion’s comments with respect to the probability of surgery being greater than 50% are beyond his expertise, as is his comment on the likely cost.
101. What Dr Champion did say, relevant to future economic loss, is his opinion at [69] above as to his capacity for employment.
102. The Claimant, however, has in his statement of 8 June 2023 at [49] referred to his role in performing clinical work from time to time, creating a possibility of losing his managerial role, and thus being required to do the heavier work, which causes him pain and pins and needles.
103. I have accepted the opinion of Dr Damodaran, in preference to that of Dr Casikar, as to the causal connection between the pain and the accident, and if he comes to surgery, with respect to the need for surgery.
104. Dr Champion has called it a “pain syndrome” and I accept that description as correct.
105. The leading case is Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1 where the Court by a majority of Deane, Dawson, Toohey, Gaudron and McHugh JJ stated the principle in the following terms:

“2. A plaintiff in an action in negligence is not entitled to recover damages for loss of earning capacity unless he or she establishes that two distinct, but related requirements are satisfied. The first ... is ... that the plaintiff’s earning capacity has in fact been diminished by reason of the negligence-caused injury. The second ... is (that) ‘the diminution of ... earning capacity is or may be productive of financial loss’ (referring to Graham v. Baker [1961] HCA 48)”

106. Section 4.7 of the Motor Accidents Injuries Act 2017 provides:

“(1) Damages may not be awarded for future economic loss unless the claimant first satisfies the court or Commission that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury.

(2) The amount of damages for future economic loss that would have been sustained on those assumptions is to be adjusted by reference to the percentage possibility that the events concerned might have occurred but for the injury.

(3) If an award for future economic loss is made, the court or Commission is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.”

107. The Claimant’s Submissions on future economic loss are set out at [20-22] of A6.
108. I make the following assumptions:
     1. But for the accident, the Claimant would have continued to work in his current managerial role, without any significant or material restriction in performing clinical tasks, and without the likelihood, in the short term in any event, of having to undergo any surgical intervention by way of spinal surgery.
     2. The Claimant would have continued in his managerial position until retirement.
109. The Claimant, in the Submission, talks about the possibility of the loss of his managerial role. There is, however, no evidence that suggests the Claimant will lose his managerial role or his job.
110. On the evidence, it is likely that the Claimant will come to surgery as a last option as proposed by Dr Damodaran, and this would be, according to Dr Damodaran, as a result of the accident.
111. Dr Champion considers that the accident caused a pain syndrome which the Claimant subjectively, in any event, states gives rise to pain and discomfort. The Claimant describes his symptoms to Dr Champion in the following terms [page 5]:

“... The pins and needles in the left arm have become rather more intense, more persistent, and more easily provoked in the recent months, even at rest, as in this minute, he is conscious of lower grade pins and needles. The right sided (mirror image distribution) paraesthesiae, although intermittent and milder than the symptoms on the left side, have become more prominent...”

112. At [page 6], Dr Champion asked the Claimant to rate his pain. He scored 35/52 on the Pain Catastrophising Scale, indicating a moderate tendency to catastrophise about the ongoing paraesthesiae.
113. The Claimant continued to describe his symptoms to Dr Champion. The response to the Orebro musculoskeletal pain screening questionnaire (short) resulted in a score of 77/100. The Claimant explained that when he responded to pain, he was thinking about pins and needles.
114. Dr Champion commented that it was:

“...to his credit that [he] is working with such a score in that many people with a score of 77 would not be working or would be working only light duties part-time. He acknowledges strong motivation to continue working and enjoys his job.” [ibid page 6]

115. Dr Champion set out his current [7 March 2022] assessment of the consequences of the subject accident:

“He has a chronic secondary (secondary to the MVA and to earlier injuries from MVAs and to degenerative changes), musculoskeletal cervical spinal pain syndrome with mild pain arising mainly from the mid and low cervical spine and upper thoracic spine and associated left more than right C6 sensory radiculopathy. I was not able to determine a tendon reflex or motor features of radiculopathy. On the left side brachial plexus hyperexcitability and the distribution of sensory symptoms and signs suggest that there is an additional contribution from either primary brachial plexus injury with hyperexcitability sustained in the MV A or secondary hyperexcitability of the brachial plexus as discussed earlier. The underlying pathology was discussed in the MRI context above.”

116. Dr Champion then went on to say:

“Mr Zirein is demonstrably fit for fulltime normal work as a Chief Radiographer and, given his high motivation, this will probably continue in the foreseeable future.”

117. Accepting the evidence of Dr Champion, there is a good case for the proposition that the Claimant does have an impairment as a result of this accident, particularly as a result of his ongoing chronic pain, which ordinarily, would justify a significant buffer, perhaps in the order of $150,000.00 as submitted. However, as Dr Champion explained, as a result of the Claimant being highly motivated and enjoying his job, which is no longer a physical job, the Claimant is likely to continue his employment at Canterbury Hospital indefinitely. There is no evidence that the Hospital would close its doors or terminate the Claimant’s services. Nothing in life is certain but that is not the basis on which buffers are awarded.
118. The evidence does not justify a buffer of $150,000.00. While $150,000.00 as a buffer is excessive in the factual circumstances, the continuing impairment consisting of the ongoing chronic pain and the continuing pins and needles in his left arm and given the Claimant’s evidence that he would now have the surgery, it is appropriate to award a smaller buffer to take into account a likely future period of hospitalisation and recovery as well as rehabilitation. The Claimant is not the sort of person who would have the surgery for the sake of it. He has been stoic, motivated, and committed to doing the work which he enjoys.
119. Taking all things into account, a buffer of $35,000.00 is justified.
120. The Insurer submits that the evidence does not support the assumptions underpinning the Claimant’s submission for a buffer and would allow nothing.
121. The evidence is, however, that surgery is the last option. The Claimant has most recently stated that he would have the surgery (evidence at Assessment Conference) if his subjective experience of the pain and pins and needles and numbness in his left upper limb continued, which he states to be the case. I accept his evidence, finding that he is a credible witness.
122. Given that the Claimant is currently working in a managerial job, which he can do [see the opinion of Dr Champion] and given that there is a prospect of surgery in the future, and the possible impacts of the pain syndrome, which on the evidence is caused by the accident, this is a case which does justify a buffer, but not of the magnitude proposed by the Claimant.
123. I assess a buffer of $35,000.00 after taking into account a consideration of vicissitudes and including a consideration of any loss of superannuation.
124. The authorities which permit me to assess a buffer in circumstances where a loss is likely but the amount cannot be determined with precision are: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; (2012) 83 NSWLR 302, Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244, Penrith City Council v Parks [2004] NSWCA 201; Allianz Australia Insurance Ltd v Shamoun [2013] NSWSC 579; QBE Insurance (Australia) Ltd v Volokhova [2014] NSWSC 726, IAG Limited t/as NRMA Insurance v Al-Kilany [2017] NSWSC 342 (30 March 2017), Sretenovic v Reed [2009] NSWCA 280 per McColl JA at paras 79-86, Allianz Australia Insurance Limited v Sprod (2012) 81 NSWSC 626, Allard v Jones Lang Lasalle (Vic) Pty Ltd [2014] NSWCA 325 (16 September 2014) and Allianz Australia Insurance Limited v Zein  [2016] NSWSC 196 ; IAG Limited v Priestley [2019] NSWSC 1185 per Fagan J (criticising at [24] the decision to award a buffer for future economic loss devoid of explanation where the assessor had said that he had taken into account a number of variables but did not quantify them in his assessment of the buffer nor did he determine the Claimant’s most likely future career alternatives or make any findings as to her weekly work hours and the reduction of same as a result of her impairment.)

SUMMARY OF DAMAGES

• Past economic loss (inc. superannuation): $818.51
• Future economic loss - buffer: $35,000.00

Total Damages Assessed: $35,818.51
LEGAL COSTS

125. The Claimant’s Solicitor provided Submissions on costs on 23 August 2023.
126. With respect to legal costs, the Claimant submits:

Regulated costs and disbursements

127. The Claimant’s Solicitor made the following Submissions for regulated costs and disbursements:

128. The Insurer’s Solicitor provided Reply Submissions with respect to costs on 24 August 2023. It accepts the Claimant’s Submissions except for the allowance for representation at the Assessment Conference.
129. The Insurer submits that the Assessment Conference did not last for longer than 2 hours, calculating the appropriate amount as $3,375.90 before GST (rather than $3,713.49, as submitted by the Claimant). The Insurer’s Submission accordingly provides for total legal costs at $7,332.41.
130. Taking into account the Submission of the Insurer, with which I agree, I assess legal costs at $7,332.41 inclusive of GST. I assess regulated and unregulated costs in the amount of $2,030.03 inclusive of GST. I assess the Claimant’s total costs and disbursements at $9,362.44 inclusive of GST.