AAI Limited t/as GIO v Mitchell
[2023] NSWPIC 205
•8 May 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | AAI Limited t/as GIO v Mitchell [2023] NSWPIC 205 |
| Claimant: | Suzanne Maree Mitchell |
| insurer: | AAI Limited t/as GIO |
| Member: | Shana Radnan |
| DATE OF DECISION: | 8 May 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval; $27,000; 57 year-old female; right shoulder high grade supraspinatus tear, surgical decompression and rotator cuff repair; successful; whole person impairment 6%; past and future economic losses only; section 6.23; Held – proposed settlement is just, fair and reasonable; settlement approved. |
| determinations made: | Settlement Approval Issued under s 6.23 of the Motor Accident Injuries Act 2017 1. The proposed settlement is approved. 2. The proposed settlement is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017. 3. The proposed settlement complies with cl 7.392 to cl 7.411 of the Motor Accident Injuries Guidelines. |
STATEMENT OF REASONS
INTRODUCTION
The claimant was driving south along Samdon Street, Hamilton when the insured’s driver failed to stop at a stop sign and collided with the front side of the claimant’s vehicle.
The claimant sustained injury in the motor vehicle accident. She contends she suffered extensive bruising to her right arm, injury to her right shoulder, right ear, neck, chest and right hip.
A claim for common law damages was lodged by the claimant on 31 August 2022.
GIO (the insurer) admitted liability on 18 October 2022.
The claimant was diagnosed with a high grade tear of the supraspinatus and recommended arthroscopic decompression and rotator cuff repair which was performed on 6 November 2020.
The claimant was reviewed by Dr Petrelis and her general practitioner Dr Haydon.
The claimant was certified fit to return to work on 7 December 2020.
Upon further review by Dr Petrelis on 12 April 2021, the claimant at this point reported no ongoing pian and a return to Zumba and bike riding.
A further review by Dr Harrington at the request of the insurer took place on
2 November 2022 whereupon the specialist confirmed some mild adhesive capsulitis as well as reduction in strength and stamina in the right shoulder. The neck injury of soft tissue nature had abated.The insurer made an offer of settlement on 12 January 2023 and the claimant accepted the offer on 31 January 2023.
The claimant and the insurer have agreed to settle the claim for lump sum damages for the sum of $27,000 for past and future economic losses only. Past losses in the sum of $12,000 and future losses in the sum of $15,000. Of this sum the statutory payment already made in the sum of $8,808.31 would be deducted leaving a balance of $18,191.69 to be paid to the claimant.
There were no damages for non-economic loss as whole person impairment did not exceed the statutory threshold of 10% whole person impairment.
Because the claimant is not represented by a lawyer, her settlement must be approved in accordance with the Motor Accident Injuries Act 2017 (MAI Act).
JURISDICTION OF THE PERSONAL INJURY COMMISSION
The Personal Injury Commission (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 (the 2020 Act).
I am a Member of the Motor Accidents Division of the Commission. Clause 14A (1) of the Personal Injury Commission Regulation 2020 designates the application “pre-establishment proceedings” and cl 14D empowers me to determine those proceedings.
Because of the date of the accident cl 14D(3)(b) provides that the MAI Act and the Motor Accident Guidelines 2017 (the Guidelines) continue to apply.
THE RELEVANT LAW
Sections 6.23(2) and (3) of the 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 Guidelines.
Clause 7.38 of the Guidelines states I must be satisfied as to the following:
(a) I note the repeal of s 6.23(1) of the Act; the timing is no longer an issue to be taken into consideration;
(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 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 Teleconference on 24 February 2023
I held a preliminary teleconference on 24 February 2023 with the claimant and a representative of the insurer, Mr Izzard.
An overview of the history of the matter was provided on this occasion with an explanation to the claimant as to what I required to ascertain that the claimant understood the nature and effect of the proposed settlement.
I asked the claimant questions as to her ongoing symptoms and considered that the claimant should be given a further opportunity to seek medical advice from her general practitioner and specialist as to the likelihood of any ongoing medical problems she has with her right shoulder and neck to ascertain if there would be any long-term complications or further deterioration.
The claimant was advised should she wish to retain legal representation she was able to consider this option in the interim. The finality of the nature of a settlement was discussed and a further opportunity for the claimant to double check if there were ongoing issues that needed to be addressed with the insurer.
The matter was adjourned to enable further investigations to be undertaken by the claimant.
Further teleconference on 14 April 2023
The claimant was present as well as Mr Izzard for the insurer.
The claimant confirmed that whilst she had been given an opportunity to address any ongoing concerns, she decided not to seek further medical opinion and nor did she wish to retain legal representation. She had decided that she was happy to take the settlement as offered and requested that I proceed to approve the settlement.
I clarified the nature of the settlement and the finality of the proceedings, should the application be approved. The claimant confirmed she understood the nature of the settlement and was aware that the settlement sum was for past and future economic loss only as her injuries did not entitle her to damages for pain and suffering.
Noting s 4.11 of the MAI Act provides that no damages may be awarded for
non-economic loss may be awarded in respect of injury unless the degree of permanent impairment is greater than 10%. The report of Dr Harrington qualified by the insurer opined whole person impairment as 6% for the right shoulder injury with no assessable impairment for the scarring or cervical spine.I went through the information as to her injuries and the medical information before me.
The teleconference concluded with me advising the parties that I would make my decision and reduce it to writing.
DOCUMENTS CONSIDERED
I had regard to the following relevant documents contained in a bundle of documents of some 353 pages annexed to the application:
(a) Liability and quantum:
(i)A4 Application for Personal Injury Benefits dated 29 June 2020;
(ii)A5 Application for Common Law Damages dated 31 August 2022;
(iii)A6 Liability Notice dated 18 October 2022;
(iv)A10 Police report dated 22 July 2020, and
(v)A11-13 diagrams and photographs
(b) The insurer relied upon the following medical records uploaded to the Commission’s portal:
(i)A14 Certificate of fitness dated 26 June 2020;
(ii)A21 Certificate of fitness dated 25 March 2020;
(iii)A15-23 Reports of Dr Petrelis dated 3 August 2020 to 26 April 2021;
(iv)A25 X-ray of the right shoulder dated 15 June 2020, and
(v)A26 clinical records of Brunker Road Medical Centre dated
15 June 2021.(c) Economic loss material
(i)A27 Payslips – Various.
(d) Settlement documents:
(i)A4 offer of settlement dated 12 January 2023, and
(ii)signed agreement for release dated 31 January 2023.
REVIEW OF THE EVIDENCE
The medical records provided the claimant’s initial injuries as:
(a) injury to right shoulder requiring decompression surgery;
(b) cuts and abrasions to right arm and right ear (now healed);
(c) cervical soft-tissue injury (now healed), and
(d) tinnitus which resolved within two weeks.
I was able to ascertain the extent of injuries relevant to the claim as contained in the various records pertaining to the treatment of the claimant that she has the following ongoing issues:
(a) she has ongoing loss of strength in her right shoulder;
(b) her cervical problems have resolved, there is no ongoing impairment;
(c) she has returned to most of her pre-accident recreational activities with the exception of playing violin, maintaining topiary and hedges in her garden, and
(d) she has retuned to work after a period of some six weeks off.
The report of Dr Petrelis treating orthopaedic surgeon dated 12 April 2021 reported:
“She has had a great result with her decompression, biceps tendonesis and application of Regeneten patch. She has no pain, She is back at work and Zumbo, bike riding a distance and the shoulder is not having any pain.” (document A22.)
Dr Petrelis confirmed on 26 April 2021:
“Suzanne was seen in my rooms today, so far we had a great response from her shoulder surgery in terms of pain, she is feeling good with her shoulder.”
The medical information confirms that the claimant has recovered from her shoulder surgery, continues to have some ongoing loss of strength.
Statement of the claimant
The claimant’s statement confirmed that she was attended by Ambulance at the time of the accident and reported the bruising, cuts, right shoulder and neck pain and was advised that her injuries appeared minor and was common after such a collision. She did not attend hospital. She attended upon her local medical practitioner on 15 June 2020 and was referred for imaging. There was delay in attending her doctor due to Covid -19 restrictions.
The major issues reported as at 17 October 2022, were ongoing difficulty sleeping on her right side due to pain. A sensation of “pinching feeling in her right upper arm is intermittent. There is difficulty with forward motion and above shoulder height activities.
Her ongoing pain relief consists of taking Nurofen or Panadol.
NON-ECONOMIC LOSS
There is no award for non-economic loss as injuries were assessed at 6% whole person impairment as it related to the right shoulder. All other injuries had resolved or were not rating any permanent impairment according to Dr Harrington.
Whilst the claimant was given an opportunity to check this with her medical team, she elected not to investigate further, although she was provided an opportunity to investigate further.
I am satisfied that the information before me supports the position that the claimant is not entitled to this head of damage.
THE SETTLEMENT
The amount of damages agreed in the sum total of $27,000 for past and future economic loss.
At the date of the motor accident the claimant was working full-time as a secretary/assistant in her husband’s electrical company, Eltrec Pty Ltd, earning an estimated $2,250 gross per week.
The claimant took approximately six weeks off work, the parties agreed that past economic loss amounted to the sum of $12,000.
The insurer made an allowance for occasional time off work over the remaining 10 years of the claimant’s working life. A buffer of $15,000 was conceded.
Noting the limited period of time off work to date, the buffer anticipated intermittent days off in the event her symptoms flared.
The insurer also relied upon the opinion of Dr Harrington that he did not find any future restrictions to the claimant’s work capacity despite the claimant complaining of reduced shoulder strength and stamina in the right shoulder.
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 MA Guideline.
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 past economic loss is $12,000 and the amount for future economic loss is $15,000;
(ii)sub clause 7.389.2 requires the amount of any deductions in the proposed settlement.
The offer made excluded any Medicare reimbursement or other payments made on behalf of the claimant by the insurer. There is a deduction of $$8,808.31 representing statutory weekly payments made to date. The amount in hand to the claimant is $18,191.69. This was confirmed in the teleconference;
(iii)sub clause 7.389.3 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, and
(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 medico-legal opinion and those of the claimant’s general practitioner and specialist. I have also received a written statements of the claimant dated
23 July 2020 and 17 October 2022 as well as the oral information presented by the claimant at the teleconferences.(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 satified that the nature of the ongoing injuries have been identified and that the sum agreed upon is 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 his claim for damages and is willing to accept the proposed settlement.
The claimant was made aware in the teleconference that in the event she took the settlement, she could not seek any further damages for non-economic losses and economic losses. She was advised that the insurer would still provide ongoing medical treatment, 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.
I am satisfied that the claimant was aware of her rights and had freely agreed to the terms of settlement with an understanding of the settlement and its implications.
Determination
This settlement is approved.
The proposed settlement is approved under s 6.23(2)(b) of the MAI Act.
The proposed settlement complies with cl 7.392 to cl 7.411 of the 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;
· the Guidelines, and
· Personal Injury Commission Rules 2021.
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