AAI Limited t/as GIO v Jamenis
[2022] NSWPIC 645
•21 November 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | AAI Limited t/as GIO v Jamenis [2022] NSWPIC 645 |
| Claimant: | Varsha Jamenis |
| insurer: | AAI Limited t/as GIO |
| Member: | Shana Radnan |
| DATE OF DECISION: | 21 November 2022 |
CATCHWORDS: | MOTOR ACCIDENTS - Settlement approval; 67-year-old female; injuries to left and right leg, internal fixation of fractures and right knee total replacement; non-economic losses only; section 6.23 of the Motor Accident Injuries Act 2017; Held – proposed settlement in the sum of $300,000 is just, fair and reasonable; settlement approved. |
| determinations made: | Settlement Approval 1. The proposed settlement is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017 (the Act). 2. The proposed settlement complies with cl 7.392 to cl 7.411 of the Motor Accident Injuries Guidelines. |
BACKGROUND
GIO (the insurer) referred the proposed settlement to the Personal Injury Commission (the Commission). The application was allocated to me for consideration and I have held a teleconference in the matter as follows:
(a) On 7 October 2022 with Varsha Jamenis (the claimant) her son Tushar Jamenis for the claimant and the insurer represented by Melanie Gazdag. During the lengthy teleconference I obtained particulars and an update as to the claimant’s current medical status, discussing the nature and extent of her ongoing injuries, as well as determining from questioning the claimant her understanding of the settlement, its finality and assurance that she was satisfied with the settlement.
(b) The claimant confirmed during the teleconference that she continued to have issues with physical and psychological injuries. I suggested she provide me with a written impact statement and consider her options.
(c) I considered it appropriate at that time, that if she wished to seek further medical opinion as to the prognosis, she should investigate the ongoing impact and how it may affect her. She confirmed she had an appointment with treating surgeon in February 2023. I gave her the option of waiting for this appointment to take place before we concluded the application. She subsequently decided not to wait and to accept the proposed settlement.
(d) I requested the production of up to date treating doctor’s clinical records to satisfy myself of the current status of the claimant’s injuries and any report the claimant wished to obtain.
(e) I received an updated statement from the claimant which addressed the impact of her injuries on her quality of life dated 7 October 2022.
(f) On 3 November 2022, I received clinical records of Pendle Hill Family Medical Practice.
(g) I sought further particulars from the claimant on 8 November 2022 and in response dated 9 November 2022, I was advised the claimant wanted to accept the settlement, did not want to seek further psychological treatment and did not want to wait until she had seen the treating surgeon Dr Fox in February 2023.
(h) I was requested to finalise my determination on the basis that the claimant accepted the sum offered and did not want to pursue the matter further.
(i) The basis of the settlement was solely for non-economic loss in the sum of $300,000. There were no economic losses claimed.
(j) It was confirmed by the insurer that would cover all reasonable and necessary treatment expenses for the period of five years post-accident and that contact should be made in the event ongoing treatment was required. The claimant confirmed she understood this.
(k) I questioned the claimant as to whether she was aware she could seek legal representation and obtain advice as to her rights and the appropriateness of the settlement sum. The claimant responded to me she was happy with the settlement and wanted to have the matter completed and did not wish to retain legal representation. Whilst she had considered seeking a greater sum, she decided that she would accept what has been offered.
The accident
The claimant was a pedestrian now aged 67 years, who was struck by the insured sustaining significant injuries. She was taken to Westmead Hospital and underwent surgical repair of a left distal fracture with open reduction and fixation as well as right tibial fracture with open reduction and fixation. She remained in hospital until 25 June 2020.
She later was transferred to Lakeview Private Hospital for intensive rehabilitation between 25 July 2020 to 7 August 2020.
At the time of the accident, the claimant was in Australia on a holiday visa coming from India and due to the accident and her injuries sustained, has been permitted to extend her stay due to the medical issues. The visa has been extended and due to the injuries sustained she has applied for a permanent resident visa as she requires the assistance of her son to care for her now.
The claimant has undergone further surgical intervention on 28 October 2020, and on 11 November 2020 further surgery - debridement to right knee. Then to remove the hardware and had a total right knee replacement on 2 February 2022.
Dr Fox in his report of 3 May 2022 which was 8 weeks post-surgery commented that:
“now much better than where she was prior to the knee replacement but is still reporting stiffness and discomfort which needs bit further work”.
The claimant continues to date with physiotherapy to assist in reduction of stiffness in her right knee.
Liability
Liability was admitted on 29 August 2021.
Ongoing injuries/disabilities
The claimant has been under the care of her treating surgeon Dr Fox and has further follow up scheduled for February 2023.
The claimant’s statement of 7 October 2022 detailed the impact of her injuries from a physical and emotional perspective.
She confirmed that she post accident has lost her independence and relies heavily on the assistance of her son and daughter-in-law. Initially, post hospitalisation she was wheel-chair bound. Her pain in the following months brought sleepless nights. The necessity to ingest pain medical brought about gastric issues which required a colonoscopy and gastroscopy.
She suffered wound problems and required further periods of hospitalisation to assist in the management of her wounds.
The pandemic impacted on the assistance and treatment regime, she reported that this resulted in loneliness, stress and anxiety with Covic 19 restrictions.
Her ability to perform yoga is restricted now by stiffness in her legs. She has subsequently gained weight due to her inactivity which impacts on her sense of wellbeing.
Socialising is now difficult, and due to her changed gait, her walking is slower. She now depends on her son to assist her with her travel arrangements and is no longer confident to take public transport.
She feels vulnerable and lost her confidence. Whilst she suffers psychological symptoms, they are not so significant to warrant undertaking of further treatment. She feels she can manage the condition herself.
She now intends to remain in Australia as she does not have family support back in India.
Whole person impairment
On 3 August 2022 the insurer conceded that the claimant’s injuries exceeded the 10% whole person impairment threshold, thus entitling the claimant to receive damages for non- economic loss.
The insurer acknowledged the severity of the injuries sustained by the claimant in the motor vehicle accident, including the need to undergo multiple surgeries, the likely possibility of the development of osteoarthritis as well as ongoing pain and suffering the claimant is likely to endure as a result of the accident-related injuries
Information considered
I have considered the documents provided in the application as well as the additional information provided by the claimant and the further clinical records supplied by the insurer. I have reviewed the additional medical records to satisfy myself of the claimant’s current condition, her ongoing injuries and disabilities.
I received a written impact statement of the claimant after the first teleconference.
I have considered the medical information provided and am satisfied that on the evidence of the claimant that there is ongoing impact to the claimant’s quality of life as the injuries to both legs continue to result in limited pain from time to time and stiffness. This restricts her ability to walk for extended periods, so it impacts on the ability to travel and socialise. She continues to suffer pain and stiffness, although her condition is much improved. Her left leg is much better. Her right leg continues to require physiotherapy.
The clinical records produced confirm that the claimant is not receiving any significant treatment for her injuries from her general practitioner.
The claimants treating orthopaedic surgeon Dr Fox, in report dated 3 May 2022, recorded in respect of the claimant’s left leg:
“the more straight forward site was her left side…that side has done well”
In respect of the right leg, following a total right knee replacement in February 2022, Dr Fox noted in report dated 1 March 2022 (document A9, page 81):
“…four weeks following her right total knee replacement…I am delighted to report she is happy with the knee, it is straight, it is derotated and she has actually got active quads extension lacking on the last five degrees which is pretty good at four weeks…I am happy with her progress, she is happy with her progress”
And further, in report dated 3 May 2022 (document A9, page 82);
“she is now two months following the procedure and she has easy 90 degree of bend but still says that it is a bit stiff. She has got a bit of soreness posteriorly if she walks for say more than ten minutes but that actually is a very good outcome and definitive improvement from where she was pre-operatively”…
“she has got another ten months of improvement to come”
I accept that the claimant has further recovery ahead. I acknowledge that her condition is sufficiently known to be considered medically stable to make a determination on the settlement offered and agreed to.
The claim
I am to determine whether the proposed settlement complies with any applicable requirements of the Act or cl 7.392 to cl 7.411 of the Motor Accident Guidelines.
The insurer accepted liability for the claim. The insurer, has accepted that the claimant’s injuries are non-minor in nature and that the claimant is entitled to treatment and care relating to the accident caused injuries pursuant to Division 3.4 of the Act.
“Treatment” is widely defined and includes medical treatment (including reviews by the claimant’s general practitioner and specialist), and allied health treatment (including physiotherapy and exercise physiology). Medication (over the counter as well as prescribed) and extends to therapies helping recovery and management of injuries.
The damages the claimant is entitled is non-economic loss as her whole person impairment exceeded the statutory threshold of 10% whole person imapirment. Non economic loss is to compensate the claimant for impairment to her quality of life, her pain and suffering for the duration of her lifetime caused by the injuries sustained in the motor vehicle accident.
Condition of the claimant at the time of settlement
The claimant reported at the teleconference that “she is still in pain at times and her life has changed considerably.”
When I question what she suffers most? She responded “I suffer from pain and stiffness. I am not the same as I was before the accident”.
When questioned about medications she took, she replied “because of gatric problems I do not take medications that impact on my stomach.”
She reported, “ I suffer stress and anxiety as I am now a burden on my family. I used to be independent now I am not”.
The claimant also confirmed she intended to stay in Australia where she could benefit from her son caring for her.
The clinical records of Dr Sivakumar her general practitioner reveaedl as at 1 January 2022 “…knee pain better with mobic and can walk long distances, not taking regularly.. no other complaints”.
The clinical records of Dr Sivakumar her general practittioner revealed as at 30 March 2022 “…she is not taking any pain medications. She continued to undertaken hydrotherapy and physiotherapy.”
Thereafter she consults for other conditions. There are regular attendances for other medical conditions unrelated to the accident.
The claimant confirmed she will continue her physiotherapy to her right knee symtpoms to assist in mobility.
I am satisfied that the information provided by Dr Sivakumar and Dr Fox that the claimant has made quite a significant recovery. She still has ongoing symptoms which require conservative treatment such as physiotherapy and hydrotherapy.
The claimant will continue to suffer these symptoms however, Dr Fox is still optimistic of further recovery.
Approval of settlement
Section 6.23 of the Act provides the following restrictions on settling claims for damages:
(a) Unless a claimant has a whole person impairment of greater than 10%, the claim cannot be settled within two years. The timefrarme of the Act has been complied with.
(b) The settlement must be approved by a Member and I am not to approve the settlement unless I am satisfied there is compliance with any of the requirements of the Act or the Commission Guidelines.
I am satisfied that there has been compliance with the Act and Guidelines.
(c) Clause 7.389 of the Guidelines requires the insurer to include in its application details of the following:-
(i)Sub-cl 1 requires the amount of the proposed settlement and a breakdown of the amount allowed for each head of damage.
The amount of $300,000 is for non economic loss.
(ii)Sub-cl 2 requires the amount of any deductions in the proposed settlement.
The offer made does not include any deductions.
(iii)Sub-cl 3 requires the amount of any advanced payments made.
There have been no advanced payments in this matter apart from medical expenses and these do not form part of the settlement.
(iv)Sub-cl 4 requires the evidence, documents and materials relevant to an assessment of the proposed settlement figure.
I have received as much information as the insurer and the claimant have been able to provide to establish the nature and extent of the claimant’s injuries and current ongoing disabilities. I am satisfied with the material provided that I can make a determination.
(d) Clause 7.399 of the MA Guidelines, requires me to consider the following:-
(i)Sub-cl 1 Timeliness – the proposed settlement satisfies the timing requirements in the Act.
This has been satisfied. The date of accident was 5 June 2020 and the application for settlement approval was made on 29 August 2022.(ii)Sub-cl 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, into account any proposed reductions or deductions in the proposed settlement.
Having reviewed all of the medical evidence produced in this matter and having spoken to the claimant, I accept her evidence of her ongoing restrictions. The pain and stiffness in her right knee impacts on her ability to undertake activities of daily living. I accept there may be some deterioration over time of post traumatic osteoarthritis. I am satified that the nature of the claimant’s injuries and the ongoing disabilities are known and have stabilised, the extent of past and future treatment is known and apart from limited ongoing symptoms and there is no evidence before me to suggest the claimant is likely to undertake any further surgical intervention.
I find that the medical evidence supports significant recovery to her left leg and the that her right leg, in particular her right knee is on the road to further recovery.
I consider that the agreed sum of $300,000 for non economic loss is just, fair and reasonable and within the range of likely potential damages assessments had the matter been assessed by a Member of the Commission taking into account the extent of recovery, the claimant’s age and limited ongoing symptoms which now requires minimal medical intervention. I am satisfied that the treating surgeons report provide the evidence of marked recovery. So too the general practitioner’s clinical records.
(iii) Sub-cl 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 advised in the teleconferences held that in the event she took the settlement, she could not seek any further damages for losses. She was advised that the insurer would still provide ongoing medical treatment, if required and approved by the insurer and the ongoing care if required and upon the expiry of the fifth year anniversary any further treatment would required an application to ICare.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 HIC separately to the sum stipulated in the terms of settlement.
I am satisfied that the claimant is aware of her rights and had freely agreed to the terms of settlement with an understanding of the settlement and its finality to her claim for damages.
Determination
The proposed settlement is approved under s 6.23(2)(B) of the Act.
44.The proposed settlement complies with cl 7.392 to cl 7.411 of the Motor Accident Injuries Guidelines.
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