Issued under s 7.36(1) of the Motor Accident Injuries Act 2017

1. The insurer admits it owed a duty of care to the claimant, breached that duty of care, and the claimant sustained injury loss and damage because of that breach of duty.
2. Under sub-sections 7.36 (3) and 7.36 (4) of the Motor Accident Injuries Act 2017 (the MAI Act), I assess the amount of damages for this claim as $761,817.
3. The amount of the claimant's costs, considering the amount of damages assessed in respect of this claim and in accordance with the MAI Act, is $63,602.09 inclusive of GST.
4. Attached to this certificate are reasons for my assessment.

1. On 28 February 2025, I assessed 56 years old Fatma Ulkin's (claimant) claim for damages arising from the motor vehicle accident on 8 June 2020 (the accident). An accredited Turkish interpreter attended the assessment conference to assist the claimant.

1. Mrs Ulkin applied to the Personal Injury Commission (Commission) to assess damages arising from the accident on 8 June 2020 under the Motor Accident Injuries Act 2017 (the MAI Act).
2. Mrs Ulkin served her claim for common law damages under s 6.14 of the MAI Act within three years of the accident, and the insurer admitted breach of duty of care in a s 6.20 notice.
3. The rules of evidence do not apply to this assessment. I may investigate any matter relevant to the issues in dispute in such a manner, subject to providing procedural fairness to all the parties.

1. On 8 June 2020 at approximately 2.00pm, the claimant was involved in a motor vehicle accident as a pedestrian crossing the road.
2. The parties have provided a statement of agreed facts set out below.
3. The insurer NRMA wholly admits liability for the damages claim under the MAI Act.
4. Medical Assessor Christopher Grainge's certificate dated 24 April 2023 determined that the claimant's respiratory and sleep disorder was caused by the accident. However, it gave rise to a whole person impairment (WPI) of 0%.
5. Medical Assessor Neil Berry's certificate dated 17 August 2023 determined that the following injuries were caused by the subject accident and the WPI was 17%:

(a) cervical spine;

(b) right shoulder;

(c) lumbar spine;

(d) right knee, and

(e) right ankle and foot.

1. That WPI assessment was eventually set aside, and the claimant's injuries were assessed with a permanent impairment of less than 10%. The claimant is not entitled to non-economic loss damages.
2. At the time of the accident the claimant worked as a pick packer at MetCash Trading Pty Ltd (MetCash). The claimant has worked with MetCash since 2012.
3. The claimant's duties included pick packing, heavy lifting, stock control, preparing orders (printing/labelling), and working in the cool room.
4. The claimant was working 38 hours per week.
5. NRMA's statutory benefits branch calculated the claimant's pre-accident weekly earnings at $1,047.63 gross. This equates to approximately $889.63 net per week.
6. Since the accident, the claimant has not returned to work.
7. MetCash confirmed the employer superannuation contribution is 11.5% based on gross earnings.
8. The claimant's last weekly wage payment from the CTP insurer was on 9 January 2025.
9. The insurer provided a list of payments to 4 February 2025 itemising:
   • gross total - $199,647.06;
   • tax paid on weekly payments is - $10,940, and
   • net total - $188,707.06.
10. The disputed issues are:

(a) the claimant's capacity to work;

(b) if she has any capacity to work, her residual earning capacity, and

(c) the extent to which the claimant's earning capacity is affected by her unrelated left arm, stomach and left knee injuries, and psychological condition.

1. Mrs Ulkin lives in Auburn. She has two adult children with her husband.
2. Mrs Ulkin provided two statements dated 3 February 2022 and 3 February 2025.
3. The first statement recounts the accident's circumstances that on 8 June 2020 at approximately 2.00pm when she was crossing a road with her husband at Chester Hill.
4. She was in the middle of the crossing when the insured car struck her right side and she fell to the ground. Her body twisted, and her husband helped break her fall.
5. Ambulance and the police attended. The ambulance took her to Bankstown-Lidcombe hospital.
6. The claimant alleges she suffered the following injuries:

(a) neck injury including disc damage with possible radiculopathy;

(b) injury to right shoulder - bursitis (dominant arm);

(c) injury to right upper limb nerve injury;

(d) injury to lower back disc herniation at L4/5 and L5/S1 with compromise of the nerve roots, L5/S1 disc bulging with annular tear and impingement on the S1 nerve root, S5 fracture. Subsequent nerve injury, possible radiculopathy. Secondary altered gait;

(e) injury to right hip bursitis, soft tissue;

(f) injury to right knee patellofemoral crepitus, soft tissue exacerbation of patellar chondral fissuring;

(g) injury to right ankle and foot fracture with fragment scarred into ligament, nerve injury;

(h) injury to left knee soft tissue secondary to overcompensation;

(i) weight gain 15kg secondary to reduced activity;

(j) sleep disorder secondary to pain, and

(k) psychological- anxiety, depression, post-traumatic stress disorder, insomnia, which is continuing including avoiding driving.

1. This left her with the following relevant disabilities, which she says are continuing:

(a) neck pain and discomfort. There is a clicking sound frequently when she looks left or right. The pain is worse at night and at times can affect her sleep;

(b) right shoulder pain and discomfort which has improved, unless she tries to hold medium weighted items. She has to switch hands if she holds an item for more than a few seconds;

(c) the right side of her upper body can become swollen. This can move to her right foot so it becomes difficult to balance when walking. The swelling is worse on hotter days. She frequently wears compression sleeves on her right ankle and right knee;

(d) constant pain and swelling in the lumbar spine which radiates to both legs;

(e) she avoids stairs;

(f) she overcompensates on her left foot and left knee to avoid weight on the right foot. She now experiences left knee pain and swelling since early 2024;

(g) difficulty using the right arm for domestic tasks such as cooking, cleaning and grocery shopping;

(h) reduced ability to lift the right arm;

(i) difficulty standing, walking or sitting for longer than 30 minutes, and

(j) difficulty undertaking all domestic chores and personal care. All tasks are done very slowly and with care, such as showering, dressing, cleaning and cooking. Before the accident she worked full time and then came home and did all the required domestic chores.

1. She has not returned to work since the accident.
2. Immediately after the accident she had pain in the lower back, right ankle and right arm numbness. Her main injury was to her back. She could not get up and walk.
3. Various orthopaedic and pain specialists, with physiotherapists and psychologists have treated her. Physiotherapy did not assist her right arm symptoms.
4. She provided a list of her treatment providers.
5. By 2022 she was in the pattern of seeing her general practitioner (GP) Dr Philip Vuong every fortnight and her psychologist Anthony Pignataro monthly. Dr Vuong has been her GP since 2015 and she has been attending his City West Medical Centre since 2011.
6. On her doctors' advice, she has sought additional pain management treatment and physiotherapy, but the insurer has denied funding.
7. In 2022 she was taking Panadol daily, plus Endep nightly and occasionally Endone.
8. In 2022 she denied having prior disabilities and generally good health.
9. Her employment history is that since 2006 she has worked full-time for various employers as a picker packer, which is a stores position which includes packing, heavy lifting, stock control, preparing orders and working in a cool room.
10. She spoke to her employer about suitable duties after the accident, but Metcash required a full medical clearance before she could return to work. She intended to work until retirement age in that position and the accident has changed that plan.
11. At the time of the accident, she had worked for Metcash for eight years. She alleges she has lost her capacity to meet the physical demands of the job because of the accident and this has resulted in a loss of earnings.
12. She was diagnosed with breast cancer in August 2022. Radiotherapy treatment and surgery removed the cancer cells. Her cancer condition was considered cleared in approximately March 2024.
13. She says she enjoyed working for Metcash because it was fun and allowed her to socialise. She was dedicated to her work, and pitched in when needed to meet additional job demands.
14. In 2022 she had not applied for other roles because she was still undertaking rehabilitation.
15. She says that the insurer's rehabilitation consultants have recommended that she is suitable to fill a receptionist or administrative role, but she has no experience in similar work. She has also given up driving because of her fears since the accident which makes it difficult to commute.
16. Following the insurer's rehabilitation provider's advice, she enrolled in an Administrative Certificate III in Bankstown-Lidcombe TAFE which started on 7 February 2023.
17. This was a 16-week course she completed on 22 June 2023, but her evidence is that she achieved her certificate with difficulty.
18. Mrs Ulkin relied on the TAFE's disability support staff from TAFE to assist her. She says she would not have been able to complete the tasks if it was not for the support person. The support person would type for her and explain what was being typed and what was occurring in the classroom.
19. Her TAFE teacher was aware of her restrictions and she was okay with her taking regular breaks. Mrs Ulkin would take her breaks every 30-40 minutes to stand up and walk around to ease her pain.
20. At the end of her three five hour days per week at TAFE she was fatigued and tired and would lie down for at least one hour.
21. She travelled via bus. The bus stop was 1 minute walking distance from her home, and 10-minute walking distance from the Bankstown Bus stop to TAFE campus.
22. She alleges her competitiveness in the open labour market has been severely decreased as a result of the accident related injuries and restrictions.
23. For her entire career in Australia, she has performed physical work as a pick packer or factory worker.
24. She does not feel confident in being able to perform administrative work because of her lack of ability in the English language and the use of computers.

1. Mrs Ulkin's stated she adhered to the content of the statements.
2. She had married at 18 years old in Turkey and moved to Australia soon after in approximately 1987. She started working as her kids grew up and before the accident had been working constantly.
3. She was able to manage the hard physical work of being a pick packer before the accident. She says that if the accident had not happened, she would have continued to work at Metcash indefinitely. She confirmed she cannot return to work because of the injuries she suffered in the accident.
4. Although she has trained at TAFE to be a receptionist or clerical assistant, she does not believe she could actually do it because her health will not allow it. The problems in her right foot, knees and back and occasionally her neck make that impossible.
5. Mr Wilson questioned the claimant for the insurer. Among the first questions he asked were whether the claimant really required an interpreter. I understood she answered she was not confident her English was good enough in the circumstances of the claim.
6. The insurer's counsel referred to orthopaedic surgeon Dr John Bentivoglio's report dated 1 November 2021, where he notes that she had done supervisory type activities before the accident. Mrs Ulkin said she did not remember telling the doctor about that. Mr Wilson asked Mrs Ulkin about

Dr Bentivoglio commenting that he did not think she would return to work until the claim is over. She answered to the effect that the disabilities from the accident have made her not well enough to return to work, and she would return to work if she could. 7. Occupational physician Dr Thomas Rosenthal examined the claimant and produced a report dated 27 February 2024. Dr Rosenthal referred to Mrs Ulkin having worked as a dressmaker before the accident. 8. The insurer's counsel proposed that Mrs Ulkin could be a dressmaker as an alternative to returning to her previous role. The claimant explained this was something she did in her late teens. I asked the insurer's counsel whether he was aware of how physically demanding dressmaking was, because on the agreed disabilities it can be accepted as common knowledge this would be beyond the claimant. 9. A vocational assessment report obtained a more detailed account of what Mr Wilson questioned her about. In Turkey after leaving school, Ms Ulkin worked as a tailor's assistant, cutting patterns and machine sewing as well as measuring. She worked full-time for 18 months before meeting her husband and moving to Australia. 10. The insurer's counsel asked Mrs Ulkin about psychologist Georgina Whitley's vocational assessment reviews. The psychologist had included a note describing Mrs Ulkin as her husband's carer after he was diagnosed with lung cancer, in particular about her claims that she is able to do very little herself in the way of domestic duties since the accident. 11. Mrs Ulkin told counsel that she does not do very much for him except occasionally cook for him. She admitted she has been upset about his illness and her own cancer but had not raised it when Ms Whitley interviewed her. She has lost a lot of confidence since the accident. The insurer's counsel put it to her that her reason for losing confidence was due to the cancer and not the accident. She did not agree. 12. She was asked about her psychological condition before the accident. She admitted she had had occasional problems and agreed some of them were significant. 13. Counsel cross-examined her on Medical Assessor Doron Samuell's permanent impairment certificate dated 14 November 2023 where he refers to a history of psychological problems. 14. Medical Assessor Samuell questioned her about a City West Medical Centre clinical note referring to her having a nervous breakdown, which required her family to call an ambulance. 15. It was put to her that she was having stress problems from work. Mrs Ulkin told Mr Wilson that she does not recall having emotional problems from work, and all of her mental health issues before the accident were due to family conflicts. 16. She was further questioned about GP notes and the Medical Assessor's certificate, which indicate that she was attending counselling via a MHP in 2014, and in 2015 there was stress at work stemming from issues with a female manager. Further notes in 2016 indicate she sustained a "nervous breakdown" in April 2016 and that an ambulance was called on that occasion. 17. She was placed on anxiety medication and attended ongoing therapy. Issues in her relationship with her husband were also indicated in the GP notes at that time. In March 2017 she suffered anxiety attacks rendering her unable to breathe properly. It was treated with short-term diazepam. 18. The GP noted another "nervous breakdown" on 5 December 2017 reportedly related to her son and a court attendance. In March 2020, GP notes state that she was continuing CBT sessions under an MHP. The issues listed related to family stress. Ms Ulkin was attending counselling and suffering with significant anxiety before the accident in 2020. The claimant does not recall missing work during this time. 19. She does not remember what the Medical Assessor asked her. She does not remember him telling her she was being evasive during her questioning. 20. I noted Dr Samuell asserts Mrs Ulkin was untruthful when she said she did not have an earlier motor accident, but I could only locate a reference in the clinical notes to a minor accident on 2 April 2011, which did not result in a claim. He did not consider whether she may have forgotten that incident or did not regard it as significant beside the subject accident. 21. In the reasons with the certificate the Medical Assessor writes she told him that she had mental health issues before the accident "like what everyone has". She said her complaints before the accident were a long time ago and that some of the problems stemmed from her son's behaviour. The Medical Assessor recorded that she denied panic attacks before the accident and when the Medical Assessor confronted her with her medical history, she said she did not recall any previous diagnosis or treatment. 22. Mrs Ulkin also told me in answer to Mr Wilson's questions that she had mental health issues before the accident, but these were like everyone else has. 23. The claimant asked for a 10 minute break, at 11.40am. 24. When she returned the claimant's counsel put it to her that she had misrepresented her mental health difficulties before the accident. She denied that. 25. She was asked whether she had looked for work in the last one to two years since she completed the TAFE program. She said she been giving priority to her health. 26. Counsel referred to the jobs identified as suitable as part time work in Georgina Whitley's reports including receptionist and clerical work. She denied that she could do those jobs because she would not be free to get up and move around as she needed to. In her view those jobs are too hard for her even if her English was okay, because she does not understand the tasks required in those roles. 27. She was asked again why she needed an interpreter at the assessment when she been able to work at Metcash communicating in English every day before the accident. She told me that she was comfortable working in English while she was there. 28. She was asked again about Dr Bentivoglio's remark that she appeared motivated to say she could not work in order to maximise her claim. She denied that and said she would not be able to return to work even after this claim is over.

Medical Assessor Christopher Grainge's permanent impairment certificate dated

1. The Medical Assessor diagnosed that the claimant had a respiratory and sleep disorder as a result of the accident. He opined that the altered sleep habit was secondary to the accident because of her ongoing pain and discomfort. Before the accident she normally went to bed about 9.30pm and wake at 5.30am feeling refreshed.
2. She now goes to bed at 2.30am and wakes at 8.30am. She does not feel sleepy during the day. He assessed 0% permanent impairment, with the acknowledgment that her disorder was symptomatic, but did not match the Guidelines on rating impairment.

Psychiatrist Dr Yajuvendra Bisht report dated 24 January 2023

1. Mrs Ulkin told Dr Bisht she had seen a psychologist in the past but had not consulted a psychiatrist. The specialist noted she had a psychiatric history before the accident, which the claimant contextualised was in relation to her relationship difficulties with her father-in-law, whom she then lived with and her son's legal issues.
2. The doctor noted that the claimant's long-term memory was impaired. The psychiatrist did not find any inconsistencies and that the accident was the sole contributor to Dr Bisht's post-traumatic stress disorder diagnosis. The doctor did not think she would fully recover from her psychiatric accident related condition.
3. The doctor assessed Mrs Ulkin as mildly psychologically impaired in all of the categories listed in the Motor Accident Guidelines for assessing impairment in psychological injuries.

Medical Assessor Doron Samuell's certificate dated 14 November 2023

1. This certificate is referred to above. This Medical Assessor had an adverse view of the claimant's credibility. He found that although the claimant has had panic attacks since the accident that these were merely a continuation of her state of mental health before the accident. He was unwilling to accept that the accident circumstances were significant and an event that could lead to aggravating her anxiety condition or cause an injury. He found her dramatic and inconsistent in her presentation. He reacted against her providing a detailed autobiography. He commented she only occasionally required an interpreter during their consultation.
2. He diagnosed panic disorder but says that it existed before the accident and was unchanged afterwards.

Medical Review Panel certificate dated 12 September 2024 addressing musculoskeletal injuries

1. This panel reviewed Medical Assessor Berry's certificate dated 17 August 2023. All the alleged injuries listed above were referred to this panel. It appears that this panel examined the claimant with an Arabic interpreter, which would not have assisted the Turkish claimant.
2. The Panel commented that the claimant's medical history before the accident did not include any symptoms related to her musculoskeletal conditions arising from the accident.
3. The Panel found the accident did not cause the claimant's alleged left arm injury (secondary to cervical spine impairment) left knee and stomach injury.
4. The Panel also considered that the claimant's right hip and right arm injuries had resolved, and the right shoulder injury demonstrated no significant pathological changes.
5. The Panel considered there could have been injury to the right knee, given the mechanism of the accident, and assessed a whole person impairment.
6. I note that the Panel based its view of the left knee injury on the lack of evidence of a direct injury in the accident. The claimant's evidence has been that her left knee had become sore because she over relied on that knee due to disabilities in her right lower limbs.

Dr John Bentivoglio's report dated 1 November 2021

1. This is referred to above. He also opined the claimant did not require any further treatment for accident -related injuries, because he did not think it would make any difference.
2. He also opined she should avoid particularly arduous type work and domestic activities, including bending and twisting her back, despite commenting that she could return to her previous work. He also raised that she possibly required domestic assistance.

Dr Thomas Rosenthal's report dated 27 February 2024

1. This is also referred to above. He had the benefit of reading Dr Bentivoglio's report.
2. He diagnosed chronic pain syndrome. He accepted the accident aggravated existing degenerative changes. He found her pain focused, which will mean she will not return to her pre-injury duties. As her existing conditions relate to her soft tissue injuries, he thought the reported pain and disability was out of proportion. He found she was fit for administrative duties, limited to 20 hours per week.

Dr Evan Dryson's reports dated 19 January 2022 and 1 October 2024

1. Dr Dryson's earlier report refers to the right ankle injury, which he ultimately links to the accident of 8 June 2020. There is lateral ankle ligament scarring plus an ossicle "perhaps representing an avulsion fracture at the time of the accident". The accident aggravated her existing knee condition.
2. He opined Mrs Ulkin could not handle any more than light tasks because of the accident.
3. In 2022 he noted Mrs Ulkin relied on her husband to do the domestic tasks.
4. He opined:

"the accident has caused a soft tissue injury to the cervical spine, and there is reduced range of movement in both shoulders, secondary to the cervical spine injury. The accident caused aggravation to a disc protrusion at L5/S1 and most likely caused the annular tear seen there. It caused a sacral fracture which had presumably healed. It aggravated pre-existing degenerative disease of the right knee and led to consequential pain in the left knee. It caused a significant sprain-type injury to the right ankle with chronic scarring in the lateral ligaments."

1. The insurer objected to the later report because it was served too late to respond with a supplementary report.
2. Dr Dryson diagnosed the claimant's left knee had become painful because of compensatory overreliance on the joint order to protect the aggravated right knee.
3. He also listed the following injuries as related to the accident:

(a) soft tissue injury, cervical spine;

(b) sacral fracture, healed;

(c) aggravation of disc protrusion L5/S1, with annular tear;

(d) aggravation of degenerative disease, right knee;

(e) compensatory left knee pain;

(f) ligamentous strain, right ankle, and

(g) whole body chronic pain syndrome.

1. Dr Dryson opined that the claimant has developed a secondary whole-body chronic pain syndrome because of the accident. Dr Dryson opined she cannot undertake constant standing or walking, constant sitting, bending, stretching and reaching at the shoulders.
2. Dr Dryson opined the claimant may be able to undertake sedentary to light work, where she could vary her posture between sitting, standing and walking on a regular basis. That work would also need to avoid stretching and reaching at or above shoulder height on both sides. Although she is fit to undertake an administrative role, due to her pain levels she could not manage more than a 20 to 25 hour week.
3. Dr Dryson opined that the claimant would not be able to work past the age of 60, because her condition was slowly deteriorating. Dr Dryson said that further pain management would help Mrs Ulkin.
4. This report does not provide any new information. The claimant's accident related injuries and disabilities have crystallised to become a secondary chronic pain syndrome, commenting on the claimant's work capacity since she completed training to work in administration and reception. Dr Rosenthal also opined that was the nature of her condition.
5. The insurer was given adequate opportunities to question the claimant during the assessment about inconsistencies and whether her attempts to return to work are in good faith. This report is relevant to resolving the facts in issue and will be considered with the other medical evidence.

Occupational Health Assessment Centre report dated 8 July 2022

1. This was occupational psychologist Georgina Whitley's report, which was followed up with a further report in her name dated 11 July 2024.
2. This report concluded that but for the injuries sustained in the accident and subsequent sequelae, Ms Ulkin would more likely than not have continued working as a pick packer. This role was associated with a weekly gross rate of $1,047.
3. When Ms Whitley interviewed the claimant, she had not completed her finance and administrative training at TAFE.
4. The report identified the following employment barriers:

(a) constant pain in varying parts of the body;

(b) relying on public transport or other people driving her, because she no longer drives due to accident - related anxiety;

(c) pick packer is the only job she has ever held in Australia;

(d) she only has basic computer skills, and

(e) the physical limitations will prejudice her on the open labour market competing with experienced, younger and more physically suitable candidates.

1. With appropriate training she could possibly perform clerical work full-time, at least from a psychological perspective, but the other barriers remain.
2. By 2022 the claimant had been unemployed for two years, which Ms Whitley opined was adverse to the claimant's confidence. That lack of confidence would progress the longer she remained out of the workforce. Ms Whitley agreed with Dr Dryson's views that the claimant was no longer competitive on the open labour market. The report finished with the conclusion that the claimant required more counselling and access to a computer course and job seeking assistance.
3. I noted that Ms Whitley refers to the claimant's psychological difficulties before the accident recorded in her GP's notes and how she was able to manage to remain at work.
4. In the later Whitley report dated 11 July 2024 the psychologist noted that the claimant told her she developed left knee problems due to seeking to avoid putting weight on the right leg.
5. She recorded that the claimant feared for her future, because of her injuries, but she also referred to her husband's cancer forcing him to go on the disability support pension.
6. She told Ms Whitley that at the time of the accident she was mentally well and happy. However, the GP's notes earlier in 2020 indicate she was attending cognitive behaviour therapy on an MHP.
7. She also refers to another note that on 6 April 2016 an ambulance was called to Mrs Ulkin's workplace. I have examined that note and it does not refer to the workplace, but it does refer to a "nervous breakdown".
8. Ms Whitley refers to the claimant completing a 2022 workplace skills certificate to improve her employability.
9. She also completed a certificate in administration and finance in the first half of 2023, referred to in the claimant's statement. Although she holds a licence she no longer drives. She relies on public transport or Uber since her husband is too unwell to drive his car and has sold it.
10. Mrs Ulkin does not have access to a computer at home although she had some training early in the 21st century. She had been eager to move into administrative roles at Metcash but those opportunities did not materialise. Since the accident she tried to improve her typing with an online course, but this frustrated her.
11. She can read a little in English but needs to look up some words. She does not write well.
12. Ms Whitley recorded that in the pick packing world the claimant had displayed gradual modest progression, starting when her youngest went to primary school in a fruit shop and later moving to warehouse work, where she experienced several substantial stays with a handful of employers.
13. Ms Whitley's testing showed Mrs Ulkin was experiencing poor emotional functioning in

July 2024. 14. The same post injury employment barriers were still present as in 2022, with the addition of her husband and her health issues. 15. She was now classified long-term unemployed, so her motivation and skills had depreciated and she was more likely to be screened out by potential employers. Due to poor pain management skills, she relies on rest and medication leading to physical deconditioning, which exacerbates her pain. 16. This is a different picture from before the accident, when she was able to consistently work, contribute to the family financially and domestically, enjoyed her work and the socialisation opportunities it provided. 17. There are several references in reports to IPAR consulting working with Mrs Ulkin to assist her with job seeking and rehabilitation between 16 July 2020 until 22 June 2023, although I could not locate copies of the relevant reports. It is apparent that the insurer allocated substantial resources to assist Mrs Ulkin's rehabilitation.

1. The claimant was working as a pick packer at Metcash Trading Pty Ltd when she was injured.
2. Her duties included pick packing, heavy lifting, stock control, preparing orders (printing/labelling), and working in the cool room. She was working 38 hours (full time). She had been in this position for eight years.
3. Relevant to her residual earning capacity there was further evidence in a Metcash job application where the claimant described her spoken English as competent, but her written English was "intermediate".
4. The claims and evidence made for past and future economic loss is set out in the submissions.

1. During questioning at the assessment, the insurer's counsel put it to Mrs Ulkin she misrepresented her health difficulties before the accident. He put it to her that she was doing so with the intent to return to work soon after the claim resolves, which she denied.
2. He also questioned Mrs Ulkin as to why she relied on an interpreter in her interactions during the life of this claim, when English had been the only language spoken at work and she had been able to communicate well with her team.
3. The insurer submits I should treat her evidence with caution on some of the facts in issue, such as whether she is severely disabled.
4. Related to credit the insurer maintains that any psychological injury and associated symptomology is due to unrelated and pre-existing stressors.
5. The insurer relies on the clinical notes and Medical Assessor Doron Samuell's certificate and reasons who determined that the claimant's psychological injury was pre-existing and unrelated to the accident. He also commented that Mrs Ulkin had an evasive manner when he questioned her about her past mental health. The insurer's counsel emphasised that a psychiatrist would have particular insight to judge that, and that it should be given weight.
6. The insurer's counsel also referred to Dr Bentivoglio's remark that he thought that the claimant would not get better until the claim was resolved as reflecting on Mrs Ulkin's credibility.
7. The claimant's counsel address went to how the past mental health difficulties arose from family issues. These were irrelevant to assessing her loss of economic capacity. The claimant had never been forced to leave her work in the past because of mental or physical health issues.
8. The claimant's counsel emphasised that Ms Whitley's evidence about the claimant's work capacity based on her competence at work before the accident compared with the situation after the accident should carry more weight than two doctors' speculations.

1. The insurer relies on the radiological evidence, Dr John Bentivoglio and Dr Thomas Rosenthal and the claimant's treating specialist Dr Raoul Pope's reports to submit that the accident caused a transient soft-tissue musculoligamentous cervical injury. The effects should have resolved within a short period of time.
2. There are complaints of radicular symptoms, although these radicular signs could not satisfy the radiculopathy definition at cl 6.138 of the Motor Accident Guidelines v 9.2 (Guidelines).
3. Despite the accident mechanism and the claimant being asymptomatic in the right shoulder before the accident, the insurer submits any right shoulder symptoms are due to age-related degenerative symptoms demonstrated in scans and not the accident.
4. The same applies to right hip symptomology. Neither Dr Bentivoglio nor Dr Dryson diagnosed a right hip injury.
5. As to the right knee, the insurer relies on pre-existing conditions within the medical evidence.
6. Exercise physiologist Mr Cao's report dated 22 October 2021 documents the claimant's full and normal range of motion in both ankles. The ankles and Mrs Ulkin's foot injuries did not attract a WPI rating.
7. Any psychological injury and associated symptomology is addressed under the credit issue.
8. The insurer relies on Medical Assessor Grainge's certificate to assert that the claimant did not sustain any respiratory injury or a diagnosable specific sleep disorder.
9. The insurer otherwise relies on the Review Panel determination in the related medical assessment dispute where it was noted that the claimant's cervical and lumbar spine demonstrated "no significant clinical findings" on examination and thus attracted no impairment.

1. The claimant relies upon the SEEK and INDEED 20 November 2024 search of average annual earnings from store worker (pick packer) jobs in Sydney. This search shows that the salary ranges between $55,000 - $80,000.
2. The claimant takes a mid-point position of $67,500 gross per annum, equating to gross weekly earnings of $1,298 which is net $1,034.19 per week for year 1 July 2023 to 30 June 2024, as per the Furzer Crestani Forensic chartered accounts assessment handbook of October 2024, page 23.

1. The claimant refers to a recent email from Metcash Trading Limited, which confirms the employer superannuation contribution is 11.5% based on gross earnings.
2. The net grossed up in the submissions yields $37,644 for superannuation.

1. The insurer paid $188,707.06 in statutory benefits up to 4 February 2025.
2. The insurer submits the medical evidence indicates that the claimant has capacity to return to part time work.
3. Dr Dryson, Dr Bentivoglio and Dr Rosenthal support that submission.
4. The claimant was certified as unfit for work until 12 October 2020. The claimant has been certified fit to return to some type of work four hours per day, three days per week from

13 October 2020 to present date. 5. The insurer submits the evidence suggests pre-existing degenerative changes which would eventually impact the claimant's ability to engage in her pre-accident employment. 6. Ms Georgina Whitley considers the claimant's cancer diagnosis and her husband's illness requiring care also contributed as employment barriers. 7. During the assessment I asked Mr Wilson whether there was sufficient evidence to satisfy me that Mrs Ulkin could exercise her residual earning capacity. This was because it was apparent to me that she could be limited in obtaining and keep a real job, which is accessible to her, considering her pain, restriction, and impairment: see Mead v Kerney [2012] NSWCA 215 and South Western Sydney Local Health District v Sorbello [2017] NSWCA 201. 8. The insurer referred to the decision of the Court of Appeal in White v Benjamin [2015] NSWCA 75 [40-50], where the court held an insurer bore only the evidentiary onus of establishing the claimant's residual earning capacity or the availability of appropriate work. It is still a matter for the claimant to prove her inability to access and maintain suitable employment. 9. The insurer relies on the claimant's earnings outlined by Metcash Trading Pty Ltd and has adopted the gross weekly figures for the purposes calculating her loss with regard to the claimant's ability to obtain overtime hours spasmodically. 10. The insurer submits that the claimant's past economic loss should be calculated as follows:

Total incapacity to work from date of accident to 12 October 2020:

Partial capacity to work from 13 October 2020 to 30 June 2021:

Partial capacity to work from 1 July 2021 to 30 June 2022:

Partial capacity to work from 1 July 2022 to 30 June 2023:

Partial capacity to work from 1 July 2023 to 30 June 2024:

Partial capacity to work from 1 July 2024 to present date:

1. The insurer allows superannuation at 11.5% of claimant's past economic loss, giving a total sum of $180,344.471.
2. The insurer concedes the claimant has not obtained alternate employment since the date of the injury so allows $190,000 for the past.

Claimant's submissions on future economic loss

1. The claimant will be unable to return to work in any capacity. She does not have any experience in any other role than pick packing and does not have the physical capacity to continue working in that role because of the accident related injuries.
2. Due to her physical limitations and lack of experience she will present as a poor candidate for employment in any capacity. She is going to be significantly disadvantaged in the open labour market when trying to find employment.
3. As noted above, the claimant takes a mid-point position of the average annual salary of a store worker (pick packer) being $67,500 gross per annum. This equates to gross weekly earnings of $1,298 which is net $1,060.54 per week for year 1 July 2024 to 30 June 2025, as per the Furzer Crestani Forensic chartered accounts assessment handbook of October 2024, page 23.
4. It is also submitted that in view of the claimant's age, there should be no discount for vicissitudes.
   • $1,060.54 x 444.1 (5% multiplier for 11 years) = $470,985.81;
   • loss of future superannuation based on gross earnings at $1,298.00 gross x 444.1 (5% multiplier for 11 years) gives $576,441.80 576,441.80 x 13.5%: $77,819.64, and
   • loss of long service leave benefit estimated 10 weeks x $1,060, = $10,600.
5. The claimant seeks a total of $559, 405.45.

Insurer's submissions on future loss of economic capacity

1. The claimant has a further 11 years until the statutory retirement age of 67.
2. The expert evidence suggests that the claimant would be capable of managing part-time employment in an alternate role.
3. Having regard to the recent Review Panel Certificate, the insurer submits any ongoing deterioration in the claimant's condition will be as a result of her unrelated psychiatric condition, degenerative injuries, or other unrelated health conditions.
4. The insurer submits $200 per week multiplied by 444.2 discounted by 15% would be adequate. Adding superannuation of 14% is $86,026.

1. Mr Wilson asked me to decide whether to accept Mrs Ulkin was reliable in giving evidence. That is if she was evasive in her evidence to Medical Assessor Samuell it means that her other evidence must be treated with caution.
2. I have scrutinised Mrs Ulkin's evidence. I noted the accounts of her interactions with treating and medico-legal doctors, her evidence in her statement and Mr Wilson's questioning during the assessment.
3. The Victorian Court of Appeal case of Stevens v DP World Melbourne Ltd [2022] VSCA 285 at 44 (Stevens), highlights that if a party asks a tribunal to make findings on credit, then a tribunal may - where the claimant's mental injury or other relevant factors are part of the facts - consider whether these could impact on how that claimant gives evidence.
4. Courts and tribunals must contemplate that language differences, education, moods, mental illness and time passing can impact on a witness' ability to exactly recall or relate what has occurred or is occurring. This is particularly the case where a witness must repeat a story many times.
5. Reading the Medical Assessor's reasons and having observed Mrs Ulkin being questioned I noted she consistently said she was seeking help for family related stressors. The problems I saw noted in the clinical notes, such as conflict with in-laws and delinquent children are common in family life.
6. It was reasonable that the Medical Assessor, the medico legal specialist and the vocational assessor would ask about these entries especially an MHP soon before the accident, but it is clear those attendances were occasional with a trial of anxiety medication and did not lead to ongoing treatment with psychiatric treatment, trials of other psychotropic medication or hospital admissions, notwithstanding the doctors noteing dramatic descriptions of "nervous breakdown". These read as if the doctors were quoting the claimant rather than making a diagnosis.
7. There is one reference to a depressive illness diagnosis before the accident, but interestingly another clinical note referred to Mrs Ulkin being solution focused and that she was reasonably looking for support, which MHP provide.
8. He criticised the autobiographical detail she provided yet stated that she was untruthful when she could not recall a traffic incident only mentioned in one line of a clinical note made 13 years before he questioned her.
9. Reading the tone expressed in the reasons I found they reflected a communication problem between that doctor and the claimant rather than the Medical Assessor identifying a pattern that would move me to not give weight to the claimant's evidence.
10. Observing the respectful and conscientious interaction between Mr Wilson and the claimant, I found Mrs Ulkin was doing her best to be truthful and consistent in her evidence, which allows me to accept her description of the accident's impact on her life.
11. Accordingly, it is reasonable in this case to hypothesise that any lack of reliability or inconsistency could have been influenced by Mrs Ulkin's psychological and mood conditions from before and after the accident as well as cultural and language differences rather than an attempt to mislead.

1. The fundamental principle of assessing or awarding damages to an injured person is that a tribunal should assess damages so that they represent no more and no less than a plaintiff's actual loss: Livingstone v Rawyards Coal Co [1880] UKHL 3; (1880) 5 App Cas 25, Lord Blackburn at [39].

1. I find based on the medical evidence that the accident caused the relevant alleged injuries, which impact adversely on the claimant's earning capacity, including the left knee soft tissue secondary due to overcompensation on the right leg.
2. In terms of the precise diagnosis for the psychologically injuries I note the differences between the experts.
3. I considered the Medical Assessor's expertise may allow him to opine on people's character, but in this case his reasons did not include sufficient reasons for why he would not consider the accident as being adverse to her mental health.

1. The Medical Assessor's finding that there was only weak evidence that the accident aggravated her psychological condition bewildered me, because it was a frightening and dangerous event that was capable of injuring the claimant. Further, the level of psychological intervention after the accident read as more intensive and regular than before the accident.
2. The Medical Assessor wrote he gave no weight to the claimant's treating psychologist and her medico-legal evidence, but that does not mean his evidence is more persuasive as he was unwilling to examine the reasons behind the inconsistencies and made findings on the claimant's credit when there were other factors to consider other than deceit or malingering.
3. The Medical Assessor could not reconcile with the objective evidence that the accident was a substantial intervening event, which could have a significant impact on the claimant's mental health and self-confidence. He did not consider that there were considerable accident related changes in her behaviour after the accident that were anxiety related, such as not being able to drive a car anymore or being unable to attend work, which she had enjoyed and needed financially.
4. I find that the psychological condition arising from the accident has diminished the claimant's confidence and this impacts adversely on her earning capacity.
5. The medical evidence supports her experiencing continuing neck pain; loss of strength and pain in the dominant right side if she over exerts herself; constant lumbar spine pain; needing to avoid stairs; left foot and left knee pain secondary to her right side condition; to avoid weight on the right foot; and, reduced capacity in standing, walking or sitting for longer than 30 minutes.
6. Based on Medical Assessor Grainge's assessment I find the accident caused a sleep disorder, which while mild and yielding no permanent impairment adds a little more height to the barriers against returning to work.
7. Vital functions during sleep help the body in physical recovery and repair, support brain development, cardiac function and body metabolism, support learning, and improve memory and mood. Mrs Ulkin will find it harder to mitigate her daytime condition and exercise residual work capacity if she cannot achieve optimal sleep.
8. Almost five years have passed since the accident and these disabilities persist.

1. In cases such as Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1 and Husher v Husher (1999) CLR 138, the High Court has confirmed that the fundamental question to be determined in a case such as this, is whether a claimant has sustained a loss or diminution in earning capacity, and if so whether that loss or diminution will result in economic loss. In calculating any such loss, I must have regard the provisions of s 4.7 of the MAI Act.
2. Summarising a key principal explained in Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 (Cervantes) calculating past and future economic loss involves comparing a claimant's accident related circumstances, and the likely circumstances if the accident had not happened. Where there is loss of earning capacity, a tribunal must consider whether such a loss still might have occurred "independently of the accident." [33].
3. Before the accident Mrs Ulkin was unrestricted physically and mentally in her earning capacity as a pick packer, which is not the case since the accident. Metcash declined to agree with Mrs Ulkin's request to provide suitable duties after the accident that would have enabled her to remain employed. That company would not accept less than 100% medical clearance. There was no evidence that Metcash was an outlier in the industry.
4. I find the claimant lost her ability to perform the type of work that Metcash provided during her eight years with the company. I base that decision on the preponderance of medical evidence and the claimant's evidence that she cannot participate in that workplace any more.
5. Georgina Whitley and Dr Bentivoglio's reports referred to Mrs Ulkin holding supervisory roles in the past or seeking them.
6. Advancing at Metcash cannot happen now because her employment terminated because of the accident.
7. Since the accident, Mrs Ulkin's breast cancer and her husband's illness could have influenced her capacity to stay at work. She needed to pay attention to her health and care for her husband during his illness.
8. There is no evidence though that Mrs Ulkin would have permanently stopped working while she underwent cancer treatment, although it was reasonable to expect she would have taken time off.
9. However, against that is her habit of maintaining employment steadily since her children reached school age, and the fun and social support she enjoyed when she was fit to participate in the workplace. Ms Whitley's conclusion about Mrs Ulkin remaining at Metcash also carries some weight, because she based that on interviewing the claimant and her employment records.
10. I am also considering that Mrs Ulkin had a good outcome from her cancer treatment as a further reason that she would have remained at work.
11. Dr Bentivoglio's \ remark that she would not return to work until the claim was resolved, despite the insurer's counsel's submissions, carries no weight, because it is speculative rather than based on medical evidence. He countered that remark when he also opined that Mrs Ulkin should avoid arduous tasks characteristic of her work and at home.
12. The work allowed her to make a financial contribution to her household, which has become more important as her husband became too ill to continue employment. Those points move me to find that these cancer diagnoses would not have stopped her working and but for the accident it is most likely Mrs Ulkin would have remained working at Metcash until retirement age.
13. The insurer argues that scans showing degeneration existing before the accident would have led to Mrs Ulkin leaving work early eventually, because the symptoms she experienced after the accident would have eventuated given time.
14. Dr Rosenthal opined that Mrs Ulkin's symptoms were now the product of those degenerative conditions, despite them being asymptomatic up to the date of the accident.
15. Mrs Ulkin regularly attended her GP since 2011 and there were no relevant physical symptoms before the accident in the body parts she complained about after the accident.
16. The symptoms are accident related because the mechanism of the accident was sufficient to cause those musculoskeletal conditions to become symptomatic, she has medical support for the nexus with the accident and Mrs Ulkin has been consistent in expressing the constancy of those symptoms since the accident.
17. The accident was a sudden intervening change, which satisfies me that it is probable that the accident was and remains the cause of her disabilities.
18. There was no persuasive evidence that any loss would suddenly happen "independently of the accident." Gradual onset with degenerative conditions is more probable and, in that scenario, Mrs Ulkin could have adapted her work practices or moved to other roles at Metcash to meet those changes and extended her work capacity.
19. It would not present as an emergency, but an incentive to make changes. Again, there is no evidence that Metcash would have sacked her if these degenerative changes had emerged gradually.
20. The accident related disabilities, which came on suddenly the accident affect her ability to participate in work that suits her experience and education level. For that reason, I am not persuaded by the evidence shown in the scans and the doctor's remarks that the previously asymptomatic and undisputed degeneration would have become acutely symptomatic as they have since the accident and led to her prematurely stopping work and causing her economic loss but for the accident. For example, see Ainsworth v Ainsworth (2002) Australian Torts Report 81 - 664, and Luntz' Assessment of Damages for Personal Injury and Death 5th edition.1 11.20, page 234.
21. I find she has not been able to return to work at Metcash due to the injuries arising from the accident. I note the insurer assessed the claimant's actual loss with Metcash immediately after the accident was $889.63 net per week. The Australian Reserve Bank website says the Measure of CPI inflation for the last five years has been between 2% and 3%. I will apply 3% per year to mark an inflationary increase of the claimant's loss at the time of the accident and round up or down to the nearest dollar in the annual total.
22. I assess the past economic loss as follows:

1. Allowing superannuation at 11.5% of the claimant's past economic loss is $33,933 to total $279,471.

1. Due to her accident-related injuries' physical and psychological impacts Mrs Ulkin claims she cannot exercise her ambition to work as she hoped.
2. It is most likely that she will suffer future economic loss due to her injuries, because there is medical support for her being permanently unfit to return to full time work and she can only do suitable duties, such as administrative and clerical work, which is outside her past work experience.
3. The evidence supports finding that if the claimant had not been in this accident that she would have remained at Metcash or a similar employer as a pick packer until retirement.
4. She has reduced capacity to compete on the open labour market, because of her continuing disabilities due to the accident, her inability to do full time work, her past work experience and less than fluent English.
5. The medical evidence regarding the loss of arduous work capacity supports the claim for the diminution of earnings.

1. The insurer provided significant rehabilitation support including retraining at TAFE. It provided evidence the claimant can seek alternative duties in administration. With that evidence I must consider whether Mrs Ulkin could practically exercise the rehabilitation training to succeed in obtaining and maintaining that type of employment.
2. To obtain that work she must find an employer who is willing to overlook her disabilities and must have a part time or job sharing arrangement available.
3. Against her obtaining work, is the momentum killing four years' period off work due to the accident - related injuries, and for a shorter time recuperating from her cancer treatment.
4. Mrs Ulkin must compete with younger and able candidates with better English skills in reading and writing, who are used to working with technology and can work full time. There are considerable administrative costs in employing people which become greater with job sharing. Splitting a role to enable job sharing in reality also relies implicitly on being available to step into full time if the job sharer becomes ill or unavailable.
5. I noticed Mrs Ulkin does not possess a personal computer so her capacity to acquire IT skills are limited to getting the experience in the workplace, which she could not get until she successfully hurdles the interview process.
6. In - home access to a PC, as well as funding the training could have helped Mrs Ulkin consolidate and expand her skills, because so much can be learned from seeking leisure or staying in touch with relatives and friends online.
7. From the beginning of this claim Mrs Ulkin's position was that she was not a comfortable IT user. There was no evidence which countered that view such as examples of written work or a desktop search showing participation in social media or creating content in Turkish or English.
8. The insurer has not provided evidence that deals with the following:

(a) how Mrs Ulkin would deal with seeking concessions from potential employers to make up for her functional and psychological disabilities;

(b) the submissions and report do not deal with how she would manage her functional and psychological conditions if her work required her to go outside the restrictions that all the doctors agree she needs. Also, nothing addresses how she would retain part or full-time employment if she inflamed those conditions, and

(c) there are no strategies that address how Mrs Ulkin would fare when competing with non - disabled applicants in the open labour market for part or full-time work.

1. I am not satisfied that Mrs Ulkin could be employable part time on a sustained basis because:

(a) the broad consensus of medical and lay evidence supports the claim that the accident has left Mrs Ulkin psychologically and physically impaired and that each impact on the other;

(b) the continuing pain, education, language skills and experiential background impairs her capacity to market herself to potential employers;

(c) potential employers, would need to make allowances for additional time off work, her reliance on public transport to attend work, her reduced self-confidence and limited capacity to perform physical tasks;

(d) her ability to work part time consistently relies on Mrs Ulkin's psychiatric and physical accident related conditions aligning enough so that she feels well enough to apply herself to her tasks, and

(e) Mrs Ulkin would be limited because her capacity to accept work would depend on appropriate work being available and being well enough to commute to work on public transport.

1. I am satisfied though that there is a slight chance that Mrs Ulkin could find suitable part time work over the next 11 years because:

(a) Mrs Ulkin has demonstrated a good work ethic;

(b) she has been solution focussed in the past;

(c) she has shown resilience in terms of seeking rehabilitation despite the physical pain, and

(d) in time her psychological condition may ease when suitable jobs may be available. The longevity of any role would depend on whether she aggravated either condition.

1. I am satisfied that I must reject the claimant's submissions seeking that I do not apply a discount for any vicissitudes, because there is sufficient time to allow favourable and unfavourable changes to occur. I intend to apply the usual 15%.

1. This was not developed broadly in the claimant's case apart from the examples given above.
2. I give this aspect some weight though because of her longevity in the job and that she expressed aspirations before the accident. I assess $10,000 for the loss.

• $1,031.32 x 444.1 (5% multiplier for 11 years) = $458,009.12.
• Discounted for vicissitudes by 15% = $389,307.83.
• Loss of future superannuation based on gross earnings at $1,258 gross x 444.1 (5% multiplier for 11 years) discounted 15% x 13.5% = $64,108.28.

1. The claimant would have been working 10 years with Metcash by 2022. She would have been entitled to long service leave at that point. I will allow $8,000 as a buffer for that and her future loss.
2. I assess the total future economic loss at $471,416.

1. Section 7.36 (1) (b) of the MAI Act requires me to assess the damages for that liability that a court could award.
2. I assess the damages for this claim based on the above findings:

Buffers for loss of opportunity and long service leave

1. The claimant's economic losses are to be reduced by $188,707 for statutory payments, which will be credited to the insurer pursuant to s 3.40 of the MAI Act. This will also reflect in the costs assessment.
2. The adjusted damages are $573,110.
3. Any mathematical errors in these calculations can be resolved between the parties.

1. I refer to the claimant's schedule of disbursements. I have assessed the claimant's costs and disbursements in accordance with the attached damages and costs calculator.
2. The costs calculated based on the MAI Regulation 2017 on the above amount of damages plus disbursements claimed is $63,602.09.