AAI Limited t/as AAMI v Stodolka
[2022] NSWPIC 397
•20 July 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | AAI Limited t/as AAMI v Stodolka [2022] NSWPIC 397 |
| CLAIMANT: | Usha Stodolka |
| INSURER: | AAI Limited t/as AAMI |
| MEMBER: | Brett Williams |
| DATE OF DECISION: | 20 July 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Approval of damages settlement under the Motor Accident Injuries Act 2017 (MAI Act); claimant 75-years-old at date of accident; 78-years-old at date of approval; claimant suffered fractures of the left surgical neck of her humerus, pubic rami fractures (left superior and inferior), and a left sacral fracture; no claim for economic loss; only head of damage claimed non-economic loss; proposed settlement $200,000; Held – proposed settlement approved; proposed settlement is just, fair and reasonable and within the range of likely potential damages assessments for the claim were it to be assessed by the Personal Injury Commission; requirements of section 6.23 of the MAI Act and Motor Accident Guidelines satisfied. |
| DETERMINATIONS MADE: | 1. The proposed settlement in the sum of $200,000 is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017. |
STATEMENT OF REASONS
BACKGROUND
Mrs Usha Stodolka (the claimant) was injured in a motor accident at Strathfield on 27 August 2019. A reversing vehicle struck her as she was walking across a driveway near her home.
Following the accident a claim for statutory benefits was made on, and accepted by, AAI Limited t/as AAMI (the insurer). A claim for damages under the Motor Accident Injuries Act 2017 (MAI Act) was subsequently made. The insurer admitted liability for the damages claim in a notice dated 23 July 2021.
In a letter dated 17 February 2022 the insurer informed the claimant that it had determined that her permanent impairment as a result of the injuries caused by the accident was greater than 10%. The claimant was told that she was entitled to damages for non-economic loss.
Following negotiations, the claimant and the insurer have agreed to settle her damages claim for the sum of $200,000 (the proposed settlement).
STATUTORY FRAMEWORK
Restrictions on the settlement of a claim for damages are found in s 6.23 of the MAI Act, which is in the following terms:
“6.23 Restrictions on settlement of claim for damages
(1) A claim for damages by an injured person cannot be settled within 2 years after the motor accident unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.
(2) A claim for damages cannot be settled unless—
(a)the claimant is represented in respect of the claim by an Australian legal practitioner, or
(b)the proposed settlement is approved by the Commission.
(3) The Commission is not to approve the settlement of a claim unless satisfied that the settlement complies with any applicable requirements of or made under this Act or the Motor Accident Guidelines.”
Clause 7.37 of the Motor Accident Guidelines state as follows:
“7.37 Under section 6.23(3) of the Act, before the Personal Injury Commission may approve the settlement of a claim for damages, it must be satisfied that:
(a) the proposed settlement satisfies the timing requirements in section 6.23(1) of the Act
(b) 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 the Commission, 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
(c) the claimant understands that they are entitled to be represented in respect of the claim by an Australian legal practitioner
(d) the claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.”
Procedural Direction MA3 concerns the requirement for the Personal Injury Commission (the Commission) to approve the settlement of a claim for damages in circumstances where the claimant is not represented by an Australian legal practitioner, and the process for obtaining the Commission’s approval of the settlement of the claim.
In determining whether to approve the proposed settlement I have taken into account the timeliness, appropriateness and understanding requirements referred to in the Procedural Direction. I am satisfied that relevant material is available to enable all of the relevant facts in issue to be determined.
EVIDENCE
I have read and considered the material lodged by the insurer in support of the settlement approval. The claimant confirmed at the preliminary conference that she did not seek to rely on any additional material. I will canvas relevant aspects of the evidence to provide context for my decision.
A NSW Ambulance Patient Care report dated 27 August 2019 records that the claimant had been struck by a reversing car. It is recorded that she denied a head strike. There was no loss of consciousness. Complaints of pain in the claimant’s left shoulder and upper arm, left buttock and left neck of femur were recorded.
The discharge summary from Royal Prince Alfred Hospital records that the claimant was diagnosed with a fracture of the left surgical neck of her humerus, pubic rami fractures (left superior and inferior), and a left sacral fracture. The fractures were managed non-operatively. A secondary bladder injury was treated. The claimant was discharged on 3 September 2019 and transferred to Balmain Hospital.
A report of a left shoulder and arm MRI dated 17 January 2020 records that there was a mildly impacted and angulated fracture of the neck of the left humerus with mild to moderate grade reactive marrow oedema pattern and ongoing osseous union, not complete and likely contributing to the claimant’s symptoms. There were moderate degenerative changes of the glenohumeral articulation together with tendinopathy of the subscapularis and the supraspinatus without cuff tear.
The claimant was referred to day therapy physiotherapy at Concord Hospital for rehabilitation. An initial assessment was conducted on 19 November 2019. The claimant was discharged on 8 April 2020. The Hospital discharge summary records that the claimant had achieved full lower limb strength and was able to complete her activities of daily living.
A report of Dr Ali Tahayori, rehabilitation specialist at Royal Prince Alfred Hospital, dated 8 November 2019 records that the claimant was mobilising independently and was independent in all activities of daily living, other than some domestic tasks that involved above shoulder activities. Pain issues related to her left arm and pelvis had improved. On examination there was no weakness in the claimant’s left hand or wrist and no sensory impairment or subjective paraesthesia. While she had made some functional improvements since discharge from Balmain Hospital the function in her left arm was limited, partly due to pain, partly due to non-use and partly due to a lack of physiotherapy since discharge.
Dr Tahayori reported on 3 February 2020. The report records that the claimant was mobilising independently with no aid and was independent in all premorbid activities of daily living. While the claimant complained of some left shoulder pain her left shoulder range of motion had improved. There were also complaints of some unsteadiness and balance problems, especially when the claimant was walking up and down a ramp. Since the last review there had been improvement in left shoulder pain, range of motion and the claimant’s confidence overall.
Dr Richard Powell, orthopaedic surgeon, reported to the insurer on 16 November 2021. The report records that the claimant is right hand dominant. Complaints of ongoing symptoms in her left shoulder and pelvis are recorded. The claimant reported experiencing stiffness and restriction in motion in her left shoulder. Her pelvis injury is aggravated by hip flexion. Her mobility is reduced. There is stiffness and restriction in range of motion in the hip and lower back. The report records that the claimant can perform all elements of personal hygiene and grooming with difficulty. She performs all domestic tasks. She can walk for 40 minutes at a time, occasionally using a stick. The doctor diagnosed a fracture of the left surgical neck of the humerus, pelvic fractures and a fracture of the sacrum. The left shoulder remained symptomatic with ongoing pain, stiffness and restriction in range of motion. The pelvis remained symptomatic with ongoing pain and stiffness in the lower back and left hip. The claimant’s injuries had stabilised. The doctor assessed a 14% whole person impairment (10% left shoulder and 4% pelvis).
The claimant’s general practitioner, Dr Ly, responded to a series of questions asked by the insurer in a letter dated 2 October 2020. The doctor diagnosed healed fractures of the left humeral neck, pubic rami, and left sacrum, together with left frozen shoulder as a result of the accident. While the frozen shoulder was likely to be chronic, the claimant retained some reasonable functional capacity. Physiotherapy may be of some benefit. The claimant is likely to have achieved a stable functional capacity, albeit at a slightly lower level than her pre-injury status. The claimant was not considered to be an appropriate candidate for surgery.
In a letter to the insurer dated 15 May 2021, in response to a request for particulars dated 29 April 2021, the claimant recorded that she experienced unsteady balance at times when walking, and had to hold on to a chair when standing on alternative legs. The letter records that the claimant experienced restriction of movement in her left arm and was unable to straighten her left arm from elbow to shoulder. The letter records that she experienced persistent pain. She also said that she was anxious and tearful at times, when unable to move properly.
PRELIMINARY CONFERENCE
A preliminary conference was held on 19 July 2022. The claimant attended with her son, Adrian. The insurer was represented by Brooke Hill. I confirmed with the parties that the proposed settlement sum was $200,000. Ms Hill confirmed that no deductions were to be made to the settlement sum. Ms Hill told me that no amount was payable to Centrelink or Medicare and confirmed that no weekly payments of statutory benefits had been paid by the insurer to the claimant.
The claimant told me that she understood she was entitled to be represented in respect of the claim by an Australian legal practitioner. She said that she did not want to be legally represented.
The claimant confirmed that she understood that the proposed settlement sum was $200,000 and that she wanted to accept that sum in full and final settlement of her damages claim arising from the accident. She confirmed that she understood that her damages were to be paid as a lump sum on a once and for all basis. She understood that she was still entitled to claim, as statutory benefits, treatment and care expenses. She also understood that as a result of settling her damages claim she would not be entitled to weekly payments of statutory benefits. This last matter was raised for completeness, the claimant having confirmed that she had not worked since she was in her 60’s, and was retired at the time the accident occurred. In short, the claimant confirmed that she understood the nature and effect of the proposed settlement and was willing to accept the proposed settlement.
The claimant told me that she continued to experience problems with her left upper arm. She is unable to lift, cannot rotate her left arm or reach backwards. Her arm seizes up between her shoulder and elbow. She experiences aches and pains from time to time. She also experiences problems relating to the injury to her pelvis. She explained that she experiences sharp pain in the pelvic region when she bends. She also experiences problems with balance. She found the accident and post-accident recovery period traumatic.
Despite the ongoing effects of her injuries, the claimant told me that she was able to use public transport, both buses and trains. She is able to walk, although not for the same distance as she could before the accident. She experiences difficulties on rough surfaces and uses a stick. She is concerned about falling. The claimant told me that she is still involved in Probus, attending meetings and outings. She lives in a two bedroom, two bathroom, apartment. She can perform all housework, although it takes time. She is able to shop and cook independently.
The claimant told me that she was not as active as she was prior to the accident. She was not able to run, nor could she walk the same distances. She also experiences anxiety, particularly when crossing driveways. She has discussed her anxiety with her doctor. She is not taking any medication, managing the anxiety with meditation.
DETERMINATION
As a result of the injuries she sustained in the accident the claimant is entitled to damages for non-economic loss. The claimant was retired at the time of the accident, having last worked when she was in her 60’s. She makes no claim for economic loss.
The MAI Act defines ‘non-economic loss’ as pain and suffering, loss of amenities of life, loss of expectation of life, and disfigurement: s 1.4 MAI Act.
The claimant is presently 78 years of age. She was 75 years old when the accident occurred. The evidence establishes that as a result of the accident she suffered a fracture of the left surgical neck of her humerus, left superior and inferior pubic rami fractures, and a left sacral fracture. She found the accident and subsequent period of recovery traumatic.
Although she did not require surgical intervention, the claimant was hospitalised for four weeks, one at Royal Prince Alfred and three at Balmain, and required both inpatient and outpatient rehabilitation.
The fracture of the left humerus was treated with immobilisation in a sling for seven weeks. The pelvis and sacrum fractures restricted the claimant’s mobility, requiring the use of a frame and then a stick. The claimant experienced significant pain in her left shoulder and lower back and continues to experience pain in those regions. A frozen left shoulder developed.
The material lodged by the insurer includes a Home Support Assessment dated 30 June 2017, some two years prior to the accident. The report records that the claimant had contacted My Aged Care seeking help with housework tasks. It is recorded that the claimant was independent with mobility and transfers, although she experienced some pain in the left knee when standing to weight bear. It is recorded that the claimant can catch public transport. The assessment states that she struggles with heavier housework tasks such as cleaning and vacuuming floors and would benefit from regular help with these tasks. The assessment records that the claimant was managing independently with all her other activities of daily living, including meal preparation, grocery shopping, personal care, dressing, undressing, toileting, banking and bill paying. The claimant was referred for domestic assistance with respect to heavier household tasks.
It is evident from the material lodged by the insurer that the claimant experienced a number of pre-existing injuries and conditions. I do not propose to include details of those injuries and conditions in these reasons.
I have taken into consideration the pain and restrictions the claimant has experienced and continues to experience, particularly in relation to her left arm. She also suffers from ongoing pain and restriction arising from the injury to her pelvis and consequential restrictions in terms of mobility. I have considered the impact that the injuries she suffered in the accident have had on her way of life and ability to exercise.
In addition to the physical injuries she sustained in the accident, the claimant experiences anxiety associated with crossing driveways.
I am satisfied that 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 the Commission, taking into account the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by the claimant. I note that there are no proposed reductions or deductions to the proposed settlement. The timing requirements in s 6.23(1) of the MAI Act are satisfied as the degree of impairment suffered by the claimant as a result of the injuries caused by the motor accident is greater than 10%.
I am satisfied that the claimant understands that she is entitled to be represented in respect of the claim by an Australian legal practitioner and that she does not want to be. I am also satisfied that the claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.
Having considered the material provided by the insurer, and what the claimant told me at the preliminary conference, the proposed settlement is approved.
Brett Williams
Member (Motor Accidents Division)
Personal Injury Commission
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