AAI Limited t/as GIO v Hodge

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	AAI Limited t/as GIO v Hodge [2022] NSWPIC 500
Claimant:	Carol Hodge
insurer:	AAI Limited trading as GIO
Member:	Alexander Bolton
DATE OF DECISION:	2 September 2022
CATCHWORDS:	MOTOR ACCIDENTS - Settlement approval; claimant 56 years old and not legally represented; claimant injured when she boarded a bus which moved before she was seated, causing her to fall and hit her head; claimant suffered a short term subdural haematoma and acute subarachnoid space haemorrhage; claimant working full time at time of accident; Off work 7 weeks but complete recovery took approximately 9 months while claimant on graduated return to full time working hours; insurer offered to settle claim for $45,500 less statutory benefits paid and including top up allowance for past economic loss of $9,000 and an allowance of $15,000 for future economic loss; settlement approved.

STATEMENT OF REASONS

Introduction

This is a claim for damages made by Ms Hodge which comes before me for approval. Ms Hodge is not represented by an Australian legal practitioner.
Ms Hodge was involved in an accident on 23 August 2019 when she was a passenger on board a State Transit Authority bus. There was some dispute initially about whether Ms Hodge rose from a seated position and lost her balance or whether the bus driver commenced travelling before Ms Hodge was properly seated. Subsequent viewing of CCTV footage, which I did not have but which is referred to in the police report, confirms that the bus driver proceeded before Ms Hodge had a chance to be seated.
GIO, as insurer of the bus, has fully admitted liability.
As a result of Ms Hodge losing her balance and falling, she suffered a head injury which was diagnosed as a subarachnoid haemorrhage anteriorly.
Ms Hodge was away from full time work for approximately nine months because of headache and fatigue.
At the time of the accident Ms Hodge was employed on a full-time basis in a customer service role earning $970.30 net per week. Initially Ms Hodge took seven weeks off work and then returned to work on reduced hours on a graduated basis. She resumed her pre-injury hours on 7 May 2020, approximately nine months post accident.
The insurer has sought to point out a number of pre-existing disabilities of the claimant. However, I am not satisfied that these have any impact on the injuries suffered by her in the accident as these pre-existing disabilities are effectively unrelated to the injury suffered by her in the accident.
The insurer has offered to settle this matter with Ms Hodge for $45,500. Of this amount, a deduction will be made of $30,486.17 representing the amount of weekly benefits paid on the statutory benefits claim. The claimant will receive the balance of $24,039.53.
Ms Hodge has agreed to accept the insurers offer of settlement and the matter comes before me for approval of the settlement.

Legislative background

The Personal Injury Commission (the Commission) was established on 1 March 2021 and the Dispute Resolution Service was abolished by cl 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act 2020. I am a member of the Motor Accidents Division of the Commission. Clause 14B (1) of the Personal Injury Commission Regulations 2020 designates GIO’s application “pending proceedings” and cl 14B(3) empowers me to determine those proceedings.
Because of the date of the accident, cl 14B(4)(3) provides that the MAI Act and the Motor Accident Guidelines (the MA Guidelines) continue to apply.
Section 6.23 of the of the MAI Act says;
“(1)    a claim for damages by an injured person cannot be settled within two 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 this is the settlement complies with any applicable requirements of or made under this Act or the Motor Accident Guidelines”.
Clause 7.38 of the Guidelines says that in considering the settlement I must consider whether:
(a)     the proposed settlement satisfies the timing requirements in s 6.23(1) of the MAI 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 a (member of the Commission), 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.
Clause 11 of the Commission’s Procedural Direction MA3 provides that the Application must include:
(a)    the amount of the proposed settlement and a breakdown of the amount allowed for each head of damage;
(b)    the amount of any reductions in the proposed settlement;
(c)    the amount of any advance payments made, and
(d)    the evidence, documents and materials relevant to the assessment of the proposed settlement figure.

REVIEW OF THE EVIDENCE

Immediately following the accident the claimant was transported by ambulance to the emergency department of Northern Beaches Hospital. The ambulance records note a Glasgow Coma Score of 15 (GCS). This was confirmed also at the hospital.
At hospital on initial assessment the claimant was described as “well”. She complained of a mild headache and had a 4cm wide and 5mm deep laceration to her head. She denied any neck pain or neurological symptoms during admission.
The claimant underwent to CT scans of the brain on 24 and 25 August 2019. She was diagnosed with a subdural haematoma and acute arachnoid haemorrhage.
On discharge on 26 August 2019 from the hospital, Ms Hodge was advised to undergo a follow-up CT scan in 46 weeks and to avoid driving for three months.
The insurer arranged for the claimant to be examined for medico-legal purposes by Dr Mellick who provided a report of 10 May 2022 and Dr Sekel who provided a report of 11 May 2022. Both doctors assessed the claimant has having nil impairment.
Dr Mellick, neurologist, was satisfied that the claimant had not sustained a brain injury in the accident and that her only ongoing complaint was headaches. These were said to be well-controlled and originated from tension in the jaw.
Dr Sekel, an occupational specialist, also concluded that the only ongoing complaint was intermittent tension headaches which he considered were not causally related to the accident.
Relying on the report of Dr Seckel, GIO submits that I should be comfortably satisfied that the ongoing balance issues of Ms Hodge and complaints in respect of the TMJ, cervical spine, thoracic spine and left shoulder do not result from the accident, noting the substantial delay in record of complaints in these areas.
Dr Mellick referred to the claimant’s complaint of headaches as being the only specific symptom now reported. He said this is well-controlled, occurring three to four times a week and lasting generally a couple of hours responding to your phone.
Dr Mellick said that the small subdural and subarachnoid haemorrhage should not now be regarded to be producing any significant contribution to Ms Hodges headaches.
Dr Mellick said that there was no evidence of a brain injury. He said that the claimant’s existing symptoms are due to a variant of chronic tension headache associated with increased muscle tension and teeth grinding.
Dr Sekel discussed the following evidence regarding post-accident clinical status of Ms Hodge;
a.     Ms Hodge sustained minor bleeding outside of the brain (ie between the dura and arachnoid, and between the arachnoid and the brain), but evidence that the bleeding had resolved, and that there had been no relevant damage to the brain or its function, includes the following:
b.     The Hospital Admissions Nurse recorded that, at the time of first attendance at the hospital, Ms Hodge had a GCS of 15, ie a perfect score (15/15) when assessing for traumatic brain injury.
c.     The subdural haematoma was described as only “thin”, ie minor.
d.     The subarachnoid blood was similarly described as only a “small amount”.
e.     There was “No midline shift or mass effect”, ie no evidence of pressure on the brain itself.
f.     There was “No acute displaced skull fracture”.
g.     There was “No acute displaced cervical spine fracture”.
h.     There was only pre-existing “Degenerative spondylosis in the cervical spine”, without evidence of recent acute trauma.
i.     The hospital doctors discharged Ms Hodge home three days after the claimed incident.
j.     The hospital doctors advised that Ms Hodge did not need to return to them for the next four to six weeks, and that she did not need to attend her general practitioner immediately, only within the initial three to five days.
k.     The third CT scan of the brain, performed on 26 September 2019 (five weeks after the fall) confirmed that all the blood had disappeared, and that there was only “some very subtle” density which could be calcification, ie the normal change that occurs after the blood has disappeared, which is of no clinical significance.
l.     The radiologist who performed that third CT scan five weeks after the bus incident specifically recorded “I don’t think further follow-up would be indicated radiologically”.
m.    Ms Hodge states she only attended the Hospital Neurosurgical Outpatients on a single occasion, many weeks later, but apparently this was primarily to obtain a specialist report that she was by that stage fit to drive (and she did receive that certificate).
n.     Physical examination revealed no abnormal objective signs.
o.     Specifically, Ms Hodge demonstrates a completely normal range of pain-free movement of the neck and of both shoulders.
p.     Physical examination revealed no abnormal objective signs, and specifically no abnormal neurological signs to suggest traumatic brain injury.
q.     Ms Hodge has continued to undertake all normal hours of all normal work for the past two years (other than requiring time off for unrelated physical and psychiatric disorders).
With regard to the claimants employment, Dr Sekel noted:
(a) Ms Hodge states that she cannot recall details regarding periods that she was off work, and then gradually upgrading until she returned to her pre-injury hours of pre-injury duties. Unfortunately, the documents from the referrer do not include any information regarding those periods.
However, based on the extensive evidence recorded above, Dr Sekel said:
a.     It is reasonable for Ms Hodge to have required four weeks, and perhaps even six weeks, completely off work following the minor subdural and subarachnoid bleeds.
b.     As there was no evidence of traumatic injury of the brain itself, only of small regions surrounding the brain, and no evidence of any genuine physical disability, she would have been fit to return to her pre-injury work within four to six weeks after the fall.
c.     Although presumably she would have been immediately fit for normal hours of her pre-injury work by four to six weeks after the accident, it is also reasonable for her to have undertaken a rapid upgrading of number of hours, eg starting at four hours per day, five days per week and reaching unrestricted hours and days of work by a maximum of four weeks after her return to work, ie by 8 to 12 weeks after the claimed bus incident. Beyond that period, Ms Hodge has remained fit for unrestricted hours and days of normal work, only requiring time off work at other times because of unrelated physical or psychiatric disorders.

The settlement

GIO has accepted liability for Ms Hodges claim for statutory benefits and has paid treatment and care benefits to or on behalf of Ms Hodge.
I am satisfied having read all of the medical documentation that Ms Hodge would not be entitled to a claim for non-economic loss.
I am satisfied that the offer made by GIO of $45,500 is an appropriate offer of settlement.
The insurers offer includes paid weekly benefits to the claimant in the statutory benefits claim of $21,460.37.
The insurer has made an allowance for an amount of $30,486.17 for past economic loss on the basis of the following;
(a)    rounded up the amount of weekly benefits paid on the statutory benefits claim of $21,460.37 to $24,237.44;
(b)    superannuation at 12.5%, being $3,029.68;
(c)    Fox v Wood at 15% of past paid weekly benefits, being $3,219.05;
TOTAL: $30,486.17
The insurer submits that allowance of $30,486.17 for past economic loss ensures that the claimant will receive over $9,000 for past economic loss clear of deductions for weekly payments already made to the claimant in the statutory benefits claim. I accept that.
There is no deduction for Centrelink. Ms Hodge confirmed she received no payments from Centrelink from the date of accident to now.
Regarding future economic loss, Ms Hodge has 14 years of working life remaining. She told Dr Sekel that she has always worked in administrative roles. She had commenced her pre-injury employment in 2014, five years prior to the motor accident
The insurer submits that the claimant’s most likely future circumstances are that she will continue to work on a full-time basis in an administrative role until retirement age.
Both of Drs Sekel and Mellick concluded that the claimant was fit to continue in her pre-injury duties and hours.
The insurer has made an allowance of $15,000 for future economic loss which I accept as reasonable in the circumstances of Ms Hodge arising out of this accident.
I enquired of Ms Hodge will this and memory loss she had similar plants for the accident Ms Hodge suitable she thought and acts a little worse and she did have with her memory. Based on medical evidence however, I am satisfied that Ms Hodge has not suffered a worsening of her pre-accident condition in this regard.

CONCLUSION

Having spoken with Ms Hodge, I am satisfied that she:
a.       Accepts she could negotiate with the Insurer but has chosen to settle the matter on the basis of the only offer made by the Insurer.
b.       Is aware she can seek legal advice but that she does not wish to do so.
c.        Understands the binding nature of the settlement and this approval and that she may not be able to make a further claim for damages in the future.
d.       The insurer has confirmed that the claimant will not be out of pocket for any amount that has to be repaid to Medicare.
I am therefore satisfied that the proposed settlement figure of $45,500 less $21,460.37 leaving a balance to Ms Hodge of $24,039.63 is an appropriate one and that it complies with the requirements of clause 7.304.2 of the Guidelines, in that it 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 the claimant, and taking into account any proposed reductions or deductions in the proposed settlement”.
Accordingly, pursuant to s 6.23(2)(b) of the MAI Act, the proposed settlement of the claimant’s claim for damages is approved.

[2022] NSWPIC 500

2 September 2022