AAI Limited t/as GIO v Skrabut
[2022] NSWPIC 215
•13 May 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | AAI Limited t/as GIO v Skrabut [2022] NSWPIC 215 |
| CLAIMANT: | Andre Skrabut |
| INSURER: | AAI Limited t/as GIO |
| MEMBER: | David R Ford |
| DATE OF DECISION: | 13 May 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Settlement approval; insurer arranged for the claimant to be assessed in respect of his whole person impairment by a medico-legal expert however, there was no assessment of the claimant’s surgical scars under the TEMSKI scale; claimant is unrepresented; insurer failed to request claimant to provide it with clear colour photographs of the surgical scars upon his body; Member concerned the surgical scars may attract a whole person impairment of some significant degree; section 6.23 of the Motor Accident Injuries Act 2017 (MAI Act) considered; Held- proposed settlement is rejected as Member is not satisfied the settlement complies with the applicable requirements of the MAI Act or the Motor Accident Guidelines 2017. |
| DETERMINATIONS MADE: | The proposed settlement is rejected. |
Introduction
On 31 August 2018 Andre Skrabut (the claimant) was walking across Hannon Street, Maroubra at the intersection of Maroubra Road when the driver of the insured motor vehicle turned into Hannon Street from Maroubra Road and collided with the claimant causing him to fall to the ground and sustain serious injuries. An ambulance attended the scene of the accident, and the claimant was conveyed to Prince of Wales Hospital.
The claimant sustained the following injuries:
(a) Dislocation of the right shoulder.
(b) Valgus type injury with medial ligament tear and bruising over the lateral tibial plateau of the left knee.
The claimant subsequently underwent arthroscopic rotator cuff repair surgery on 25 September 2018.
The claimant remained unfit for any work until 26 April 2019 whereupon, he was to return to work on reduced hours and light duties.
The claimant was certified fit for pre-injury duties on 3 June 2019 however, on 23 June 2019 he was certified for full pre-injury duties but restricted to light duties involving the right arm.
Furthermore, the claimant was certified totally unfit for any work from 1 September 2019 until 30 September 2019. The claimant was again certified for full pre-injury duties from 4 October 2019.
The claimant was subsequently certified on 6 February 2021 fit for pre-injury work but also reduced capacity in terms of duties required.
The claimant was examined at the request of the insurer by a medico-legal expert who assessed the claimant as having a fracture dislocation of the right shoulder requiring surgical repair and a left knee medial collateral ligament strain.
The medico-legal expert assessed the claimant’s whole person impairment at 7% in total, based upon 4% whole person impairment for the right shoulder due to reduced range of motion and 3% whole person impairment for mild collateral ligament laxity in the left knee.
The solicitor for the insurer proposed the following settlement:
(a) No amount for non-economic loss.
(b) Past economic loss of $135,000 comprised of:
(i)Loss of earning capacity $110,720.
(ii)Loss of superannuation $11,535.
(iii)Fox v Wood (1981) 148 CLR 438 $12,745.
(c) Amount proposed for future economic loss $135,000.
(d) Total settlement amount to be approved $270,000, the amount to be paid to the claimant after deductions $210,961.53.
The claimant was born in November 1976 and is presently 45 years of age. The claimant has only sought damages for past and future economic loss. The claimant is not represented by a lawyer and accordingly, his settlement must be approved in accordance with the Motor Accident Injuries Act 2017.
I have decided not to approve the proposed settlement as submitted in this application.
Jurisdiction of the Personal Injury Commission
The Personal Injury Commission (the Commission) was established on 1 March 2021 and the Dispute Resolution Service was abolished by clause 3 of Part 2, Division 2, Schedule 1, to the Personal Injury Commission Act 2020.
I am a General Sessional Member of the Motor Accidents Division of the Commission. Clause 14 (A) (1) of the Personal Injury Commission Regulation 2020 designates the application “pre-establishment proceedings” and clause 14 (D) empowers me to determine those proceedings.
Because the date of the accident clause 14 D (3) (b) provides the MAI Act and the Motor Accident Guidelines 2017 (The Guidelines) continue to apply.
The relevant law
Section 6.23 (1) of the MAI Act provides a claim for damages cannot be settled within two years after the accident unless the degree of permanent impairment of the injured person caused by the accident is greater than 10%.
Section 6.23 (2) (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) the proposed settlement satisfies the timing requirements in section 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 claims assessor, taking into the 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 proposed settlement and was willing to accept the proposed settlement.
Teleconference 6 May 2022
The insurer lodged the application for approval of the settlement, and it was referred to me for consideration. I held a first teleconference on 6 May 2022.
The claimant participated in person; the insurer was represented by a solicitor for the insurer.
At the teleconference I asked the claimant did he have any surgical scars upon this body as a consequence of the arthroscopic rotator cuff repair surgery undertaken on 25 September 2018. The claimant responded that under his right armpit he had a number of surgical scars, the largest being the size of a fifty-cent piece. He advised there was some further five or six scars associated with the surgery ranging in size from 5 cent to 10 cent pieces in size.
The claimant further advised me that when he was examined by the medico-legal doctor appointed by the insurer, the said doctor did not request the claimant to remove his shirt during the entire examination. Accordingly, the medico-legal doctor did not view the claimant’s scars nor is there any reference to the claimant’s surgical scars in the medico-legal report of the expert dated 22 March 2021.
Furthermore, the insurer, at no time, had requested the claimant to provide them with clear photographs of his surgical scars for their perusal.
I am concerned the surgical scars should have been assessed under the Temski scale and included in the assessment of the claimant’s whole person impairment. Furthermore, at the teleconference, the claimant stated his range of movement of his right shoulder had decreased since the date of his examination by the medico-legal expert appointed by the insurer.
Should I approve the settlement
I am not satisfied it is appropriate to approve settlement of this matter, having regard to the fact there has been an assessment of the whole person impairment by a medico-legal expert of the claimant however, there has been a failure to assess the whole person impairment of the claimant in relation to his various surgical scars and therefore, based upon the documentation available to me at the present time, it is not possible to determine whether or not such surgical scars may attract a whole person impairment of some significant degree.
Conclusion
I therefore reject the proposed settlement in this claim as I am not satisfied the settlement complies with the applicable requirements of the MAI Act or the Guidelines.
David Ford
Sessional General Member
Personal Injury Commission
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