AAI Limited t/as AAMI v Kumar
[2024] NSWPIC 726
•18 December 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | AAI Limited t/as AAMI v Kumar [2024] NSWPIC 726 |
| CLAIMANT: | Anglin Kumar |
| INSURER: | AAI Limited trading as AAMI |
| MEMBER: | Susan McTegg |
| DATE OF DECISION: | 18 December 2024 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; approval of settlement; non-economic loss; cervical epidural haematoma; low back; headache; section 6.23; Ms Kumar sustained injury in a motor vehicle accident on 22 February 2020; MRI cervical spine disclosed presence of anterior epidural fluid collection; no neurological deficits; no change shown on MRI scans; to be monitored by regular MRI scans; surgical intervention not required; damages for non-economic loss only; Held – settlement $300,000 non-economic loss approved. |
SETTLEMENT APPROVAL
Issued under s 6.23 of the Motor Accident Injuries Act 2017
INTRODUCTION
Ms Anglin Kumar (the claimant) sustained injury in a motor vehicle accident on
22 February 2020 when the insured driver ran a red light and collided with the front offside of her vehicle.
The insurer accepted liability for the common law claim on 20 December 2021.
Ms Kumar is now 56 years of age.
In the Application for personal injury benefits dated 8 March 2020 Ms Kumar states she sustained the following injuries:
· headache;
· neck pain;
· severe upper back pain, and
· severe lower back pain.
The insurer accepted that Ms Kumar had non-threshold injuries and pursuant to Division 3.4 of the Motor Accident Injuries Act 2017 (the MAI Act) she is entitled to payment of reasonable treatment and care for the rest of her life for her accident caused injuries.
An application for an assessment of common law damages was initially lodged by the insurer and was the subject of preliminary conferences on 5 November 2024 and on
11 December 2024. The parties subsequently settled the claim and it is that settlement which is the subject of this approval.
The insurer conceded Ms Kumar sustained a whole person impairment (WPI) greater than 10% and agreed to pay Ms Kumar damages for non-economic loss in the sum of $300,000.
Because Ms Kumar is not represented by a lawyer, her settlement must be approved in accordance with the MAI Act.
THE RELEVANT LAW
Section 6.23(2) and (3) of the MAI Act requires approval of the settlement and I am not to approve the settlement unless I am satisfied it complies with the requirements of the MAI Act or the Guidelines.
Clause 7.37 of the Guidelines states I must be satisfied as to the following:
(a) the proposed settlement is just, fair and reasonable and within the range of likely potential damages assessments for the claim were the matter to be assessed by a claims assessor (Member), taking into account the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by
Ms Kumar, and taking into account any proposed reductions or deductions in the proposed settlement, and(b) Ms Kumar understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.
DOCUMENTS CONSIDERED
I have considered the documents uploaded by the insurer in one indexed and paginated bundle on 16 September 2024.
THE EVIDENCE
Imaging findings
An X-ray of the cervical and lumbar spine performed on 25 February 2020 concluded:
“Degenerative changes of the cervical spine. Lumbar spine radiograph is unremarkable.”
An MRI of the cervical spine performed on 18 March 2020 reported:
“IMPRESSION:
There is early extensive epidural haematoma extending along the posterior aspect of
the vertebral bodies without significant cord displacement or cord flattening at this
stage. No definite fracture is identified.”
An MRI of the cervical spine performed on 26 October 2020 concluded:
“Shallow anterior epidural collection is unchanged from previously extending from C2-3
to at least T3. No significant mass effect.”
An MRI of the cervical spine performed on 18 May 2020 concluded:
“Persistent small anterior epidural collection which is stable in size. No mass effect is seen on the spinal cord.
There is mild diffuse degenerative change with mild encroachment of the neural exit foramina at C4/C5/C6C7 levels bilaterally.”
An MRI of the cervical spine performed on 20 May 2021 concluded:
“1. Stable appearances with shallow fluid collection anterior epidural space without significant narrowing. A small CSF leak could be considered in the differential given the ongoing changes. Specialist referral recommended and MRI brain looking for features of intrcranial hypotension and clinical correlation.
2. There is mild background spondylosis and facet changes as discussed but there is no significant central or exit foraminal stenosis.”
An MRI of the cervical spine performed on 21 February 2022 concluded:
“Stable appearance to the shallow anterior epidural space fluid collection. No significant spinal canal narrowing. Cervical spine degenerative changes unchanged since previously.”
An MRI of the cervical spine performed on 9 August 2022 concluded:
“Stable appearance to the shallow anterior epidural space fluid collection compared to previously. Early cervical spine spondylotic changes are also stable.”
An MRI of the cervical spine performed on 5 January 2023 concluded:
“Stable appearance to the shallow anterior epidural space fluid intensity collection.”
An MRI of the cervical spine performed on 6 June 2023 concluded:
“No interval change when compared with prior MRI examination from January 2023.
Persistent shallow simple fluid collection at the anterior epidural space extending from C2/C3 to C7/T1. This is stable dating back to February 2022.
Mild degenerative disc and endplate changes at C5/C6 and C6/C7, stable.”
An MRI of the cervical spine performed on 6 April 2024 concluded:
“Since 06/06/2023, no interval change. Previously demonstrated shallow simple-appearing anterior epidural collection remains unchanged, no significant mass effect on adjacent structures.”
Treating medical evidence
In a Certificate of Capacity dated 7 March 2020 Dr Tran, general practitioner (GP) provided the following diagnosis:
“Severe lower back + upper back pain and headache.”
Ms Kumar attended the Registrar’s Clinical at Canterbury Hospital on 18 March 2020 when it was reported she was the driver of a car one month earlier which was T boned by another car, causing immediate neck pain. She was discharged home with follow up in the neurosurgical registrar clinic on 20 March 2020. The findings on examination were as follows:
“Normal vitals.
Focused examination or systems review.
Cranial nerves normal.
Neurologically normal.
Normal power, sensation.
Gait normal.
Tenderness midline over the cervical and thoracic region generally.
Nil obvious step or bruising.
Nil rib/chest wall tenderness.”
Ms Kumar attended physiotherapy with iPhysio Australia. On 22 April 2020 the examination record reads:
“Lifting/carrying capacity 3-4kg
Standing: 25-30 minutes
Walking: Up to 30 minutes
Neurological testing: Reflexes ok.”
On 18 August 2020 some improvement was noted. The examination record of iPhysio reads:
“Lifting/carrying capacity 8-9kg
Standing: 35 minutes
Walking: Up to 60 minutes
Neurological testing: Reflexes ok.”
Ms Kumar underwent exercise physiology sessions with OccHealth Physiotherapy between 16 November 2020 and 28 April 2021.
Ms Kumar attended Mina Candalepas, psychologist on 18 March 2021. Ms Candalepas reported Ms Kumar discontinued her treatment on the basis she was managing her pain and her psychological symptoms.
On 22 June 2021 iPhysio Australia issued an Allied Health Recovery Request which reported the claimant’s capacity as follows:
“Work: Remains not working
Sitting/standing capacity 45 minutes
Walking capacity remains 60+ minutes
Home Self-care tasks independently completed
…no longer walking with pain
Community: short to moderate distances driving.”
Treating report of Dr Tallapragada, neurosurgeon
Ms Kumar saw a neurosurgeon at Concord Hospital Dr Krishan Tallapragada on
20 March 2020. Dr Tallapragada reported no focal neurological deficits and no evidence of myelopathy. He noted a normal neurological examination with regard to power and reflexes.
Dr Tallapragada considered Ms Kumar may have a traumatic spinal epidural haematoma or a small durotomy with a CSF leak traversing the region. He did not consider surgical intervention was required. He suggested follow up closely with her GP and in the event of worsening symptoms re-referral to the Emergency Department or to the Neurosurgical Clinic.
Medicolegal report of Dr Casikar, neurosurgeon
The insurer relies upon a report by Dr Casikar dated 6 July 2021 who diagnosed:
· whiplash;
· postural hypotension (low blook pressure), and
· post-traumatic cervical haematoma that had not produced neurological problems.
Dr Casikar reported Ms Kumar had a post-traumatic cervical haematoma at the C3/4 segment. He did not consider it had produced any significant neurological problem although he thought some of the symptoms of pins and needles may be related. He reported the most significant problem was the postural hypertension, a neurological problem common to cervical cord injury due to damage to the sympathetic system. He considered it would gradually get better and did not require any further treatment.
Joint report of Dr Shnier
The parties rely upon a joint expert report of Dr Ronald Shnier dated 27 June 2024.
Dr Shnier was asked to provide an opinion in respect of the radiological investigations performed in relation to the claimant’s injuries.
He diagnosed:
· stable longitudinally orientated epidural fluid collection in the cervical spine, and
· pre-existing and stable cervical spondylotic change at C5/6 and C6/7.
Dr Shnier was not able to provide a conclusive opinion as to the cause of the fluid collection and could not exclude that it was related to the accident. Whilst Dr Shnier could not confirm whether the fluid collection was related to the accident, he explained that epidural fluid collections could occur in a variety of scenarios, such as “dural hyperplasia” or a “history of trauma particularly ..from a degenerative intervertebral disc disease”.
Dr Shnier concluded that the fluid collection was not symptomatic, did not relate to any current symptoms, and did not threaten future symptoms.
PRELIMINARY CONFERENCE ON 5 NOVEMBER 2024
Ms Kumar appeared in person and Ms Wicks appeared for the insurer.
I asked Ms Kumar if she had any intention of retaining a lawyer. She said she did not.
Ms Kumar confirmed that she had no intention of returning to work and that the claim for damages was limited to non-economic loss or pain and suffering.
Ms Kumar stated she is in pain every day, she only gets a few hours of sleep, she stands up and feels dizzy. She said she consults her GP every week and takes Panadeine Forte as required. She tries not to take it as it makes her sleepy.
She said the insurer was now only prepared to pay for MRI scans and attendances on her GP.
Ms Kumar said she attended a psychologist as suggested by the insurer on one occasion only. She said she occasionally attends physiotherapy when her condition flares up and she pays for it herself.
I suggested to Ms Kumar that if she retained legal representation they would arrange a medico legal opinion from a neurosurgeon who could comment on the likelihood of worsening symptoms and the likely future prognosis. I noted that the opinion of Dr Casikar is now over three years old and at the time of his assessment he considered the condition would get better and no further treatment was required. Ms Kumar pointed out that the MRI scans showed no change. Based on what she was initially told when the fluid collection was first detected on MRI she is fearful that she is a candidate for a stroke. I reminded her that I have no evidence to suggest that is a possibility, only the opinion of Dr Casikar that her condition will resolve over time. Ms Kumar asked rhetorically if that was likely given it was now nearly five years since the accident.
Whilst the schedule of damages included in the insurer’s bundle proposed $180,000 was an appropriate award for non-economic loss I was informed the insurer had offered Ms Kumar $300,000.
I indicated to Ms Kumar my preliminary view was that the offer of $300,000 was within the range of damages Ms Kumar was likely to receive if the matter was to proceed to assessment.
I adjourned the matter to enable the insurer to issue Directions for Production, to obtain instructions about arranging a refresher medical appointment with Dr Casikar and for
Ms Kumar to consider the offer made by the insurer.
PRELIMINARY CONFERENCE ON 11 DECEMBER 2024
Ms Kumar appeared in person and Ms Wicks appeared for the insurer.
Ms Kumar informed me she had not sought legal advice and did not propose to do so.
Ms Wick indicated Dr Casikar had retired but the insurer was prepared to arrange a medico-legal appointment with another neurosurgeon.
Ms Kumar said she would like to accept the offer of $300,000 made by the insurer. She said it is nearly five years since the accident and she would like to move on with her life.
Ms Kumar said she would like to have physiotherapy or other treatment as required. I explained that the settlement will not extinguish her rights in relation to treatment and if she needs physiotherapy or to attend an exercise program she should get a referral from her GP and seek approval from the insurer. Ms Kumar said she has done so in the past and the insurer has not provided approval. I indicated that if there is a dispute as to treatment she can bring further proceedings in the Personal Injury Commission (Commission).
Noting I had already indicated that the offer was in the range of damages Ms Kumar was likely to get if the matter was to proceed to assessment I asked both parties if they had any objection to the approval being considered by myself or if they required an independent opinion from another Member of the Commission. Both Ms Wicks and Ms Kumar indicated they would be happy for me to consider the approval even though I had already expressed a preliminary view.
I adjourned the matter until today to enable Ms Kumar to confirm her acceptance of the offer in writing and for the necessary paperwork to be finalised.
PRELIMINARY CONFERENCE TODAY
Ms Kumar appeared in person and Ms Wicks appeared for the insurer.
Ms Kumar confirmed she wished to settle her claim for damages for the sum of $300,000.
Ms Kumar confirmed she was aware approval of the settlement will mean she is unable to make any further common law claim for damages arising out of the accident.
Ms Kumar confirmed she was aware of her right to have her reasonable treatment expenses paid for the remainder of her life.
I informed the parties I considered the settlement was just, fair and reasonable and within the range of likely potential damages assessments if the claim was to proceed to assessment. I indicated I was prepared to approve the settlement.
SHOULD I APPROVE THE SETTLEMENT
Section 1.4 of the MAI Act defines non-economic loss as:
(a) pain and suffering;
(b) loss of amenities of life;
(c) loss of expectation of life, and
(d) disfigurement.
The current maximum payable for non-economic loss is $654,000.
Ms Kumar is currently 56 years of age with a life expectancy of 31 years. I consider the allowance of $300,000 for non-economic loss to be within the range of the award of damages the claimant would receive for non-economic loss if the matter was to proceed to assessment.
I am satisfied that Ms Kumar is aware of her right to have her reasonable treatment expenses paid for the remainder of her life. Whilst the insurer was only liable to pay statutory benefits including treatment expenses for five years, the claim has now been transferred to Lifetime Care and Support who will be liable for ongoing reasonable treatment expenses.
I am satisfied Ms Kumar understood that the settlement was only in respect of her entitlement to damages for non-economic loss.
The insurer will not deduct and pay monies to Medicare under the Health and Other Services (Compensation) Act, 1995 (Cwlth) from the settlement sum. In the event a Notice of Charge is raised by Medicare for reasonable and necessary treatment expenses the insurer will pay the charge in addition to the settlement sum as part of their obligation to pay statutory benefits.
CONCLUSION
I am satisfied the proposed settlement is just, fair and reasonable and within the range of likely potential damages assessments if the claim was to proceed to assessment taking into account the nature and extent of the claim, the injuries, disabilities, impairments and losses sustained by Ms Kumar.
I am satisfied Ms Kumar is aware she can seek legal advice but does not wish to do so.
I am satisfied Ms Kumar understands the binding nature of the settlement and that she will be precluded from making a further claim for damages arising out of the accident. I am satisfied Ms Kumar is willing to accept the proposed settlement.
Accordingly, pursuant to s 6.23(2)(b) of the MAI Act I approve the settlement of $300,000 in respect of the claim for damages.
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