AAI Limited t/as AAMI v Mamo
[2024] NSWPIC 362
•6 July 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | AAI Limited t/as AAMI v Mamo [2024] NSWPIC 362 |
| CLAIMANT: | Christopher Mamo |
| INSURER: | AAMI |
| MEMBER: | Shana Radnan |
| DATE OF DECISION: | 6 July 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval; no entitlement to non-economic loss; small closed period past economic loss and small buffer future economic loss; injuries include resolved rib fractures and contusions; ongoing left shoulder injury with 3% permanent impairment; Held – proposed settlement is just, fair and reasonable; settlement approved pursuant to section 6.23. |
| DETERMINATIONS MADE: | CERTIFICATE Issued under s 6.23 of the Motor Accident Injuries Act 2017 1. The proposed settlement in the sum of $85,000 is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017. 2. The proposed settlement complies with cl 7.392 to cl 7.411 of the Motor Accident Injuries Guidelines. |
STATEMENT OF REASONS
INTRODUCTION
Christopher Mamo (the claimant) was riding his bicycle into a roundabout at the intersection of Lillies Street and Abbott Road at North Curl Curl when the insured’s driver failed to give way and collided with the claimant.
An ambulance was called and the claimant was transported to Manly Hospital. Investigations revealed the claimant sustained undisplaced posterior 4th and 5th rib fractures and contusions to his left shoulder, forearm and left side of torso. He was discharged later that day into the care of his regular medical practitioner Martine Walker.
The claimant brought a common law claim for damages dated 22 July 2020.
The insurer accepted liability for the damages claim on 20 August 2020.
The parties reached an agreement to settle the claim in for the sum of $85,000. This amount represents an allowance of $10,000 for past economic loss and $75,000 for future economic loss.
There is no allowance on the part of the insurer for non-economic loss as the insurer relying on the whole person impairment assessment of Dr Rosenthal dated 15 September 2023 opined whole person impairment of 3%.
The claimant did not seek review of whole person impairment and accepted the offer of settlement.
THE RELEVANT LAW
Sections 6.23(2) and (3) of the Motor Accident Injuries Act 2017 (MAI Act) requires approval of the settlement and I am not to approve the settlement unless I am satisfied it complies with any of the requirements of the MAI Act or the Personal Injury Commission Guidelines.
Clause 7.38 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, taking into account the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by the claimant, and taking into account any proposed reductions or deductions in the proposed settlement, and
(c) the claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.
Preliminary conference on 12 June 2024
The nature of the settlement was discussed. The claimant confirming that he had two weeks off work immediately after the accident and little time off since that time.
The claimant confirmed he sustained injuries as described in the Manly Hospital discharge summary. He confirmed that the fractures have now healed and he returned to work after a short period to near normal duties as a project officer working for Sports and Recreation.
He continued to suffer from left shoulder pain requiring further investigation and treatment. Dr Sherlock recommended arthroscopic debridement, decompression and this course of treatment was confirmed by specialist Dr Mark Ridhalgh. The claimant to date has declined surgery.
When discussing the possible impact on earning capacity the claimant was given time to address the likely prognosis with his specialists and a direction issued that any further additional information should be forwarded to the insurer to revisit the settlement if applicable.
At this conference the claimant advised he did not wish to seek legal representation and confirmed he understood the nature and effect of reaching a settlement.
Email of claimant dated 13 June 2024
The claimant advised he did not wish to pursue the further investigations and sought the matter be determined with no further information to be provided from him.
I was informed that the claimant did not wish to seek legal representation.
The claimant also confirmed he did not wish to undertake any further surgery and considered obtaining the information requested was not really necessary.
I was requested to approve the terms of settlement agreed to between the claimant and the insurer.
DOCUMENTS CONSIDERED
I have regard to the following relevant documents contained in evidence bundle of 130 pages:
· Liability:
(a)police report dated 15 November 2018;
(b)application for statutory benefits dated 26 September 2018;
(c)application for common law damages dated 22 July 2020;
(d)liability notice dated 20 August 2020;
(e)Deed of release - document A8, and
(f)submissions amended by insurer dated 15 May 2024.
· Medical records:
(a)ambulance report dated 15 October 2018;
(b)discharge report Manly Hospital dated 18 September 2018;certificate of fitness dated 25 September 2018;
(c)Dr Martine Walker report dated 10 September 2019;
(d)X-ray left shoulder and AC joint dated 21 April 2020;
(e)MRI left shoulder 30 April 2020;
(f)clinical records – Dr Sherlock, and
(g)patient history records – The Mosman Practice.
· Medico-legal opinions:
(a)report Dr Mark Ridhalgh dated 26 August 2020, and
(b)report Dr Rosenthal dated 23 September 2023.
· Financial records:
(a)Payslips 31 May 2018 to 4 October, and
(b)Notices of Assessment financial years 2017-2023 (noting 2018 and 2021 omitted).
· Settlement documents:
(a)Offer of settlement dated 3 April 2024, and
(b)Deed of settlement.
Injuries
Christopher Mamo’s application for common law damages noted he sustained the following injuries:
(a) undisplaced posterior fourth and fifth rib fractures;
(b) contusions left shoulder;
(c) contusions left forearm, and
(d) contusions left side of torso.
The claimant’s left shoulder injury remains problematic as recorded in the clinical records and the medical reports provided to support this application.
He undertook initial investigations and conservative treatment and the records of Dr Walker indicate he last saw her for treatment on 25 September 2018.
Whilst his treating specialist Matthew Sherlock recommended arthroscopic Acromio -Clavicular joint debridement, decompression and sub pectoral tenodesis on 16 July 2020, the claimant indicated he did not wish to undertake any surgery.
The claimant was examined Dr Mark Ridhalgh, orthopaedic surgeon at the request of the insurer on 26 August 2020. Dr Ridhalgh noted the fractured ribs and tear of the left psoas had resolved at this time. He noted that the claimant reported weakness of the left shoulder girdle and discomfort sleeping on his left side.
His report confirmed “he is uncomfortable with the arm at or above shoulder level, he avoids lifting, doing push-ups or doing flys or weights above shoulder level..He avoids taking pain killers... He is not having any treatment for his shoulder now”. (Page 53 of application bundle.) Whilst surgery was noted as an option Dr Ridhalgh mentioned the claimant was still considering that option. He opined 1% whole person impairment relating to the left shoulder.
The claimant attended upon Dr Thomas Rosenthal, occupational physician on 15 September 2023 for a medico-legal assessment. Again the claimant reported that he was not willing to undertake any further surgery.
It is on the basis that there is no further improvement in the left shoulder that an assessment of whole person impairment of 3% was arrived at. As a consequence of this assessment of impairment, the claimant had no entitlement to non-economic loss.
The impact of the left shoulder injury to the claimant’s earning capacity has been limited to a brief period of two weeks post-accident and some intermittent times off of short duration. There were no specifics provided to establish any past losses apart from the initial period off work.
Past economic loss
The claimant took off approximately two to three weeks. His weekly earning capacity was disclosed as $1,769 net in pay slips. The insurer accepted the weekly sum.
The insurer confirmed that payments of $6,211.64 had been paid to the claimant as weekly benefits and this sum would need to be credited to the insurer as statutory payments made to date.
The parties rounded up the past loss to a sum of $10,000 to reflect a day off here or there to date.
The claimant confirmed he had changed his career path since the accident and this was unrelated to the injuries sustained in the accident. He has subsequently taken up a teaching role.
Pay slips and Notices of Assessment were relied upon to support the economic losses claimed. This evidenced the claimant’s earning capacity. The claimant’s net earnings for the financial year to 30 June 2019 was $98,373.89 according to the notice of amended assessment. (p111 of application bundle). The records of 2017 recorded $92,616.77 net for the 2017 financial year (p107 of application bundle).
I am satisfied that the past losses agreed to between the parties accords with the facts provided in medical records of time off and the financial records provided.
Future economic loss
Whilst the claimant confirmed he was able to undertake his pre-accident employment tasks and had changed roles to lecturing as a chosen career move, it was accepted that a buffer be considered to reflect the time off he would need in the event that surgery was undertaken in the future or his symptoms flared up from time to time for the remaining years to retirement. The claimant has a further ten years until retirement age of 67 years.
An exact weekly loss was not established, however the parties agreed upon a buffer in the sum of $75,000.
Whilst the claimant was given additional time to check with specialists as to the impact of further surgery on his future earning capacity, the claimant declined to investigate this further.
The claimant’s earning capacity has not been significantly impacted by his injuries to date and the allowance of a buffer to reflect future loss of earning capacity and the most likely circumstances but for the accident is within the likely range of damages had the matter been assessed by a member of the commission.
The tax returns provided do not disclose any reduction in the claimant’s earning capacity due to the injuries sustained in the accident noting the returns for the period 2017 to 2023.
(a) $127,379 (2017);
(b) $131,637 (2019);
(c) $140,158 (2020);
(d) $176,934 (2022), and
(e) $111,287 (2023).
The provision of a buffer for future economic loss is appropriate in the circumstances where an exact weekly sum is not established.
Medical opinion as to impact on earning capacity
The report of Dr Ridhalgh noted that the claimant was employed in an administrative role and he had returned to this role within three weeks of the accident. He reported he was capable of his work-related tasks. The heavier overhead work in the garden remained problematic.
Dr Rosenthal consultant occupational physician took a history that he worked in management and lectured for sports medicine on a part-time basis. The change of employment from working full-time managing Sydney Academy of Sports to part-time lecturer was a chosen career change and lifestyle choice not injury related.
Dr Rosenthal opined that the ongoing shoulder injury if left as status quo and no further surgery would not impact on his earning capacity but would impact on his ability to undertake above shoulder height activities with his left shoulder. He opined:
“His pre-accident employment does not involve any significant above shoulder height left arm activity. Therefore, his pre-accident employment is not impacted by his injury”.
Insurer’s submission
It is the insurer’s submission that the proposed settlement figure is an appropriate one and complies with the requirements of Clause 7.37 of the Guidelines, in that it is:
“…just, fair and reasonable and within the range of likely potential damages assessments for the claim were the matter to be assessed by the Commission, taking into account the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by the claimant”.
Accordingly, the insurer recommended the proposed settlement figure of $85,000 be approved. The claimant also confirmed his desire that the settlement be approved by me.
Impact of injuries upon the claimant
The claimant’s oral statement made during the teleconference confirmed the history provided to Drs Sherlock, Ridhalgh and Rosenthal.
He confirmed that he required little time off and managed his symptoms without need of ongoing treatment, physiotherapy or analgesics.
He was able to ride his bicycle and continued with regular gym activities avoiding weights above shoulder height.
He has not had time off of any significance, apart from the first two weeks post accident. He was aware that the insurer had paid the sum of $6,211.64 in statutory payments which would be deducted from the settlement sum as it had already been paid to him.
Whilst there had been medical support for some surgical intervention, the claimant is adamant he does not intend to undertake surgery and the condition must become significantly worse before he would consider undertaking any further surgery to the left shoulder.
REVIEW OF THE EVIDENCE
The claimant undertook cortisone injection into his AC joint which provided little benefit. Dr Sherlock when writing to his general practitioner on 13 May 2020 considered the inflammation “is not a major issue to his quality of life or shoulder function is not affected then it would be reasonable to live with it”.
His condition is now stable with limited impact on daily activities to the heavier gardening or above shoulder activities as well as certain overhead gym activities.
The remaining activities undertaken by the claimant are unhindered.
Treatment has been exhausted and the claimant has resumed pre-accident levels of functioning at work with little impact to his earning capacity.
I am satisfied that the injury to the claimant’s left shoulder would not entitle him to damages for non economic loss. The assessment of 3% whole person impairment with the shoulder injury having no further surgery was the assessment of Dr Rosenthal. I accept his assessment of whole person impairment.
SHOULD I APPROVE THE SETTLEMENT
Section 6.23 of the MAI Act provides the following restrictions on settling claims for damages:
(a) The settlement must be approved by a Member of the Commission and I am not to approve the settlement unless I am satisfied there is complaince with any of the requirements of the MAI Act or the Motor Accident Guidelines.
I am satisfied that there has been compliance with the Act and the Guidelines.
(b) Clause 7.389 of the Guidelines requires the insurer to include in its application details of the following:
(i)sub-clause 7.389.1 requires the amount of the proposed settlement and a breakdown of the amount allowed for each head of damage.
The amount for for past economic loss is $10,000; the amount for future economic loss is $75,000 there is no entitlement to damages for non-economic loss.
(ii)Sub-clause 7.389.2 requires the amount of any deductions in the proposed settlement.
The sum of $6,211.64 has been paid to the claimant as statutory payments and this amount will be deducted from the agreed sum.
(iii)Sub-clause 7.389.3 requires the amount of any advanced payments made be specified. This has been specified and is known to the claimant.
Medical expenses have been met by the insurer and these do not form part of the settlement.
(iv)Sub-clause 7.389.4 requires the evidence, documents and materials relevant to an assessment of the proposed settlement figure.
I have received clinical and medical records effectively convering the period of injury and the relevant period to date. I note the medical records provided and opinions of specialists as well as the records of the claimant’s general practitioner and relevant specialists produced in the matter give me a good indication of the injuries, treatment and prognosis
(c) Clause 7.399 of the Guidelines, requires me to consider the following:
(i)sub-clause 7.399.2: appropriateness – 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, taking into account the nature and extent of the claim and injuries, disabilities impairments and losses sustained by the claimant, and taking into account any proposed reductions or deductions in the proposed settlement.
Having reviewed the medical evidence produced in this matter, I am satisfied that the nature of the ongoing injuries to his left shoulder have been identified and that the sum agreed upon is just, fair and reasonable and within the likely range of damages were it to have been assessed by a Member of the Commission, and
(ii)sub-clause 7.399.3: understanding – the claimant understands the nature and effect of the proposed settlement is the finality of her claim for damages and is willing to accept the proposed settlement.
The claimant was made aware in the teleconference that in the event he took the settlement, he could not seek any further damages for non-economic losses and economic losses. He was advised that the insurer would still provide ongoing medical treatment and care needs, if required and approved by the insurer.
The claimant was also made aware that the insurer would continue to meet any charge issued by Medicare and that the insurer has agreed to reimburse Health Insurance Commission separately, if appropriate.
I am satisfied that the claimant was aware of his rights and had freely agreed to the terms of settlement with an understanding of the settlement and its implications.
CONCLUSION
I am satisfied the proposed settlement of $85,000 is just, fair and reasonable and within the range of likely potential damages assessments if the claim was to proceed to assessment by a Member of the Commission taking into account the nature and extent of the claim, the injuries, disabilities, impairments and losses sustained by the claimant and the age of the claimant.
I am satisfied the claimant was aware he could seek legal advice and but chose not to retain legal representation.
I am satisfied the claimant understands the binding nature of the settlement and that he will be precluded from making a further claim for damages arising out of the subject accident.
I am satisfied the claimant was willing to accept the proposed settlement and his decision to accept it was of his own volition.
I am satisfied the claimant is aware that $6,211.64 will be deducted from the proceeds of settlement and that he will receive $78,788.36 net.
Accordingly, pursuant to s 6.23(2(b) of the MAI Act I approve the settlement of the claimant’s claim for damages in the sum of $85,000.
The proposed settlement complies with clause 7.392 to clause 7.411 of the Motor Accident Injuries Guidelines.
Legislation
In making my decision I have considered the following legislation and guidelines:
· MAI Act;
· Motor Accident Injuries Regulation 2017, Personal Injury Commission Regulation 2020, Motor Accidents and Workers Compensation Legislation Amendment Regulation 2020, and
· Motor Accident Guidelines 2017/Personal Injury Commission Rules 2021.
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