AAI Limited t/as AAMI v Martinez
[2024] NSWPIC 582
•18 October 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | AAI Limited t/as AAMI v Martinez [2024] NSWPIC 582 |
| CLAIMANT: | Jeric Martinez |
| INSURER: | AAI Limited t/as AAMI |
| MEMBER: | Elyse White |
| DATE OF DECISION: | 18 October 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; proposed settlement; claimant 61 years old; liability admitted; economic loss damages only; claimant recommended to engage in treatment to assist with a return to part-time employment; Held – settlement approved; $335,000 is just, fair and reasonable; within the likely potential damages assessments taking into account the nature and extent of the claim. |
| DETERMINATIONS MADE: | CERTIFICATE
|
STATEMENT OF REASONS
INTRODUCTION
On 26 May 2021, Mr Jeric Martinez (the claimant) was injured whilst stationary at the intersection of Foreshore Road and Boat Ramp Road, Botany. The insured driver rear ended his vehicle at high speed.
Mr Martinez made a claim against AAI Limited t/as AAMI (insurer) the insurer of the at fault vehicle for lump sum damages.
The insurer has wholly accepted liability for the claim for common law damages.
The insurer has accepted, pursuant to Division 3.4 of the Motor Accident Injuries Act 2017 (the Act), Mr Martinez is entitled to payment of reasonable treatment and care for the rest of his life for his accident caused injuries.
Mr Martinez and the insurer have reached agreement as to settlement of the claim for damages.
Because Mr Martinez is not represented by a lawyer, his settlement must be approved in accordance with the Act.
The insurer has lodged the application for approval of the settlement, and it was referred to me for consideration.
The insurer and Mr Martinez have agreed he is entitled to damages for past and future economic loss.
THE RELEVANT LAW
Approval of the settlement is required under s 6.23(2) and (3) of the Act and I am not to approve the settlement unless I am satisfied it complies with the requirements of the Act and Motor Accident Guidelines (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 assessment for the claim were the matter to be assessed by a Member, taking into account the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by Mr Martinez, and taking into account any proposed reductions or deductions in the proposed settlement, and
(b) Mr Martinez understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.
DOCUMENTS
I have considered the documents provided with the insurer’s application including, but not limited to, insurer’s submissions, liability notice, clinical notes, medical certificates, scans, payslips and tax returns, medical reports from Dr Jeffrey Baron Levi and Dr Robin Mitchell and communications between the parties.
After the preliminary conference, further reports have been submitted from Rehabilitation Services and additional communications and a signed deed.
REVIEW OF THE EVIDENCE
Mr Martinez is 61-years-old. He was born in the Philippines. He came to Australia in 1989 with his wife and eldest child.
Following the crash, Mr Martinez was conveyed by ambulance to St George Hospital where he was admitted and discharged two days later.
He presented with a small middle forehead laceration, lower cervical spine tenderness, lumber back pain. He was fitted with a c-spine collar.
He developed right shoulder pain. He reported flashbacks and felt overwhelmed and developed stress and anxiety.
Scans were performed before he was discharged into the care of his general practitioner.
Mr Martinez was referred to a rehabilitation program which included treatment for his symptoms.
Mr Martinez experienced difficulties due to the Covid pandemic which interfered with his progress. With assistance from family members, the insurer worked closely with Mr Martinez to ensure he had appropriate treatment and was paid statutory benefits.
After Mr Martinez arrived in Australia, he found work with ACI working in a glass factory. His first job was a cleaner before moving into bottle making using machinery. He remained with that company for over nine years.
After this job, he trained as a forklift driver and was working at Flemington Markets before being offered a position with PMF Smallgoods where he was employed at the time of the accident.
He has not returned to work since the crash.
He was earning $892.36 net per week plus superannuation at the time of the crash.
Since the accident, Mr Martinez has attended a men’s shed where he volunteered for six hours a day. He mainly helped with gardening which he found relaxing and calming.
Dr Levi interviewed Mr Martinez for a psychological assessment on 24 February 2024. The doctor concluded his psychological injuries were solely caused by the crash. He opined Mr Martinez could return to his work as a forklift driver from a psychological perspective. He declined to comment on his physical capacity. He felt Mr Martinez may benefit from employment at a nursery or in a gardening capacity.
At the request of the insurer, Mr Martinez was interviewed by occupational physician, Dr Mitchell on 13 March 2024. The doctor noted Mr Martinez reported reduced range of movement in his right shoulder. He said symptoms are aggravated with any arduous physical activities using his right arm. He felt depressed, angry and sleep deprived.
After a comprehensive clinical examination, Dr Mitchell described his injuries as rotator cuff tendon tears and impingement. The doctor further noted neck and lower back symptoms.
Dr Mitchell opined Mr Martinez has a current capacity for work providing he avoids aggravation of his reported injuries which the doctor lists on pages seven and eight of his report. In conclusion, Dr Mitchell says Mr Martinez has the capacity to resume his pre-injury employment on normal hours. He does preface this conclusion with a caveat Mr Martinez avoid heavier aspects of his pre-employment role.
After the preliminary conference, the insurer arranged for Mr Martinez to be assessed by Rehabilitation Services. The purpose of this assessment was to identify the vocational needs for Mr Martinez to return to a safe work environment. In summary, as a result of this assessment the insurer reviewed the offer of settlement for future economic loss which adopts the assessments recommendations which include psychological therapy sessions, a physiotherapist program, rehabilitation sessions which include support to return to work over a three-month period.
PRELIMINARY CONFERENCE AND ECONOMIC LOSS
On receipt of the application of the proposed settlement agreement, I reviewed the documentation. I was concerned that although the insurer’s experts had suggested Mr Martinez had capacity to return to work on a part-time basis, there was no evidence to support any opportunity to return to work or in what type of role.
When I raised my concern with him and his son at the preliminary conference, it was apparent to me neither understood the terms of the calculation in the proposed settlement, nor his entitlement to reasonable future treatment for accident-related injuries.
I invited the insurer to reconsider the proposed offer and whether there was an opportunity to explore what options may be open to Mr Martinez in order to return to a suitable employment position.
My invitation was accepted which resulted in the additional vocational assessment referred to above.
The insurer proposed that the past assessment of economic loss be calculated as a weekly loss of $892.36 net per week for 157 weeks plus superannuation which amounts to $155,511.58. The taxation paid on weekly benefits amounts to $9.874. From this amount, the insurer is to receive a credit of $114,251.47 paid to Mr Martinez since the accident.
Initially, for the future economic loss, the amount proposed was $115,000 which represented a partial incapacity to work with no evidence to support this submission.
The revised proposal based on the fresh vocational assessment has acknowledged Mr Martinez is in need of treatment and assistance to return to part-time work. The insurer has allowed a full year of future economic loss to enable him to engage with further recommended treatment which includes job seeking assistance. Thereafter, the proposed amended amount for future economic loss has allowed a loss of 60% pre-accident earnings for the next five years on the basis he has been able to maintain volunteer work three days a week. The amended sum for future economic loss has been increased from $$155,511.58 to $170,000.
SHOULD I APPROVE THE SETTLEMENT
Mr Martinez told me he was happy with the revised sum providing I was satisfied the amount was fair.
He understood he was entitled to legal representation but did not wish to engage a lawyer.
He further understood the entitlement to an assessment of non-economic loss and agreed he was not entitled to damages for this head of damage as he had not been assessed as having a greater than 10% whole person impairment.
I am satisfied Mr Martinez is aware the settlement finalises his entitlements to further common law damages under the Act.
I am satisfied that Mr Martinez is aware of his rights to have his reasonable treatment expenses paid for the remainder of his life. I encourage him to avail himself of the recommended treatment and vocational assistance set out in the recent report.
I am satisfied Mr Martinez is happy with the amount of $206,995.13 in his hand.
I am satisfied that the proposed settlement is just, fair, and reasonable. The settlement is 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 Mr Martinez.
I am satisfied Mr Martinez understands the binding nature of the settlement and that he will be precluded from making a further claim for damages arising from the accident. I am satisfied Mr Martinez is willing to accept the proposed settlement.
Accordingly, pursuant to s 6.23(2) and (3) of the Act, I approve the settlement of
Mr Martinez’s claim for damages in the sum of $335,000.
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