AAI Limited t/as GIO v Vardouniotis

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	AAI Limited t/as GIO v Vardouniotis [2022] NSWPIC 248
CLAIMANT:	Olga Vardouniotis
INSURER:	AAI Limited t/as GIO
MEMBER:	Alexander Bolton
DATE OF DECISION:	26 May 2022
CATCHWORDS:	MOTOR ACCIDENTS - Settlement approval under section 6.23 of the Motor Accident Injuries Act 2017; Car v Pedestrian accident; very active elderly claimant pre-accident now aged 88 years; injuries to right arm, right shoulder, neck and back with ongoing pain; settlement for $150,000- no deductions; Held- approved.
DETERMINATIONS MADE:	1. This 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/cl 7.392 to cl 7.411 of the Rules.

Background

The motor accident the subject of this claim occurred on 6 February 2019. More than two years have passed since the date of the motor accident.
The claimant is not represented by an Australian legal practitioner.
The claimant, in a release dated 13 March 2021 has advised that she proposes to accept the settlement.
The claimant requests that the Personal Injury Commission (the Commission) approve the proposed settlement.
This approval conference took place by telephone. The claimant attended and was assisted by her daughter. Also in attendance was an interpreter, Mr Paul Hellander with NAATI accreditation CDN22D22N. Whilst Mr Hellander provided very great assistance with his translation, it was my impression through the course of the conference that the claimant did have an adequate understanding of the English language. Mr Izzard for the insurer attended the conference.
The Commission was established on 1 March 2021 and the Dispute Resolution Service (DRS) was abolished by cl 3 of Part 2, schedule 1 to the Personal Injury Commission Act 2020 (the PIC Act). I am a Member of the Motor Accidents Division of the Commission and cl 148(1) of the Personal Injury Commission Regulations 2020 delegates GIO’s application ‘pending proceedings’ and clause 14B(3) empowers me to determine those proceedings.
Because of the date of the accident, cl 14B(4)(c) provides that the Motor Accident Injuries Act 2017 (the MAI Act) and the Motor Accident Guidelines (the MA Guidelines) continue to apply.

Documents Considered

I have considered the documents provided in the application and the reply and any further information provided by the parties.

Legislative Framework

Section 6.23 of the MAI Act says;
“(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 or of or made under this Act or the Motor Accident Guidelines”
Clause 7.38 of the MA Guidelines says that in considering the settlement I must consider whether:
(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 (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.
Clause 7.294 of the MA Guidelines requires GIO to include in its Application details of:
i.the amount of the proposed settlement and a breakdown of the amount allowed for each head of damage.
The insurer has provided me with a copy of its letter of its letter of a letter sent to the claimant on 29 July 2021 which provides a breakdown of the offer and an explanation of the various components of the offer which the claimant has accepted.
With regard to cl 7.294.2 the amount of any reductions in the proposed settlement:
(a) GIO has confirmed that no amount will be deducted for past statutory benefits, and
(b) GIO has confirmed that there is no payback to Medicare.
Mr Izzard informed me that there is no payback by way of a statutory charge to Centrelink.
Mrs Vardouniotis will receive the entire amount of $150,000 in settlement of the claim.

Reasons

I have considered the documentation lodged by the insurer in support of this approval application. My reasons follow.

Claimant’s injuries and medical evidence

The claimant was born in 1934 and is 88 years of age. The history provided confirms that she was a very active woman immediately prior to the accident.
The accident occurred on 6 February 2019 when the claimant was a passenger on a bus which she had just boarded. The bus driver accelerated, causing the claimant to fall and suffer injuries.
The insurer admitted liability on 2 September 2021.
The claimant had a pre-accident medical history including;
a)    chronic back pain with a background of osteoporosis managed with paracetamol and six monthly injections;
b)    glaucoma;
c)     left subacromial bursitis in 2016;
d)    bilateral subacromial bursitis in 2017;
e)    bilateral shoulder rotator cuff tears in 2017;
f)     bilateral knee osteoarthritis in 2017;
g)    hypertension, and
h)    hypercholesterolaemia.
Prior to the accident the claimant was fully independent in all activities of daily life.
Immediately after the accident the claimant was admitted to Royal Prince Alfred Hospital. She was diagnosed with the following injuries:
(a)   fractures of the superior and inferior endplates of the L3 verterbal body with approximately 30% loss of vertebral height;
(b)   fractured right hand involving the 3rd metacarpal;
(c)   fractured right 6th rib, and
(d)   broken right upper front tooth.
The claimant was discharged from hospital on 11 February 2019 and then was an inpatient at Metro Rehabilitation Hospital for two weeks.
The discharge summary from Royal Prince Alfred Hospital clearly showed that the spinal fracture injury to the claimant was diagnosed shortly after the fall in the bus and was evident on scans taken on 6 February 2019. I am satisfied that the injury is related to the incident in the bus. The claimant had also reported falling on her right arm in the bus and sustaining bruising to the upper arm which seems to have aggravated a pre-existing significant shoulder problem from 2017. This previous problem had been diagnosed as subacromial bursitis and right shoulder rotator cuff tear involving the supraspinatus tendon of the full-thickness nature.
The claimant was reviewed by Dr Smithers on 13 June 2019 who observed that the claimant’s right hand fracture had healed well although there was some residual stiffness. However, it was also observed that the claimant was having increasing problems with her right shoulder for which a CT scan had been performed.
Dr Smithers diagnosed an exacerbation of the claimant’s chronic cuff tear pathology in the right shoulder.
Dr Smithers reviewed the claimant on 12 August 2019 when she was six weeks post right glenohumeral joint injection. The claimant was observed to have had an excellent response to the injection reporting only mild occasional pain. However, the claimant had developed intermittent numbness in the fingers of her right hand which was worse at night. Dr Smithers provided a clinical diagnosis for carpal tunnel syndrome. The claimant was recommended a nocturnal splint and referred for more physiotherapy.
On 24 October 2019, Dr Smithers reported that the claimant was doing well, had no right shoulder pain but felt there was some weakness, was able to attend to housework and had occasional middle finger pain that was short-lived and not usually associated with numbness. Dr Smithers discharged the claimant from his care but recommended a cortisone injection may be helpful should the claimant’s right shoulder become painful or, nerve conduction studies could be considered if numbness progressed.
Dr Robin Mitchell, occupational physician, examined the claimant at the insurer’s request on 17 November 2021. The claimant told Dr Mitchell that she continued to have right shoulder pain that disturbed her sleep at night, continued to experience lower neck pain that affected the right side more and may radiate down the right arm into the hand and thumb, low back pain rated 6-7/10 where pre-accident she reported the pain to be 4/10 and that right hand symptoms had substantially resolved apart from some right thumb symptoms. The claimant also told Dr Mitchell that she was now independent with respect to her usual personal care activities and activities of daily living.
Dr Mitchell reported that the claimant said that she had ongoing back pain. Radiological investigations identified a fracture injury to the superior and inferior endplates of the L3 vertebral body with approximately 30% loss of mid vertebral height. Dr Mitchell said that this compression fracture would result in a DRE III impairment which was attributed as a 10% whole person impairment (WPI). Dr Mitchell also attributed a DRE II impairment with 5% WPI for significant neck pain which was asymmetric in nature.
Dr Mitchell assessed a total WPI of 23%.
Dr Mitchell said that although there was a long history of back pain associated with osteoporosis which required six monthly injections, which would render the claimant prone to sustaining a compression fracture, there was no history of any such fracture prior to the bus accident. She said that investigations carried out on the day of the accident indicated bruising and other acute signs which are indicative that the fracture was fresh. Therefore, Dr Mitchell said the pre-sitting back condition did not constitute grounds for any diminishment of the assessed impairment.
Dr Mitchell said that the claimant had a significant prior history of right shoulder problems including a full thickness tear of the supraspinatus tendon however there are no details available which was sufficient to identify any measurable level of prior impairment. Dr Mitchell said though that with such a history, it would be reasonable to attributed half of the measured impairment to the prior condition and the remaining 50% to the aggravation sustained in the fall in the bus.
The claimant also provided a document which was prepared by her daughter which was 22 pages in length. This very detailed document sets out the claimant’s complaints and ongoing disabilities.
During the course of the conference, the claimant mentioned that she had severe headaches every day. Further enquiry about this made me aware that the claimant had undergone investigations with an ear nose and throat specialist and he suggested that she could further explore this issue with a neurologist. I enquired of the claimant about her intentions to further medical explore the cause of her headaches. In the course of this I explained that there is no medical evidence before me about this nor has it been confirmed that such headaches arise because of the accident.
The claimant confirmed that she is reluctant to pursue neurological examination further. Potentially this would involve an MRI investigation and she has had this form of investigation once previously with an adverse reaction on her part. The claimant is not willing to pursue such investigation again. I informed the claimant that if she did undertake further investigations and if this did involve further treatment, this would be potentially dealt with by the insurer however any potential further damages that might be awarded could not be awarded because the settlement is a once and for all final approval. The claimant acknowledged her understanding of this period.
After discussing the claim with the claimant, I am satisfied that she understands that if
I approve this claim then that will be a final conclusion of the claim as settlement is a once only resolution with no recourse for further damages although further treatment expenses for example, will be paid. The claimant confirmed that she understood this.
I also explained to the claimant that a person who was much younger than the claimant would expect to receive a larger assessment of damages for the same injuries. I explained that damages are awarded from the date of the accident and into the future. The claimant’s pain and suffering into the future, by virtue of her age, will be less than a much younger claimant and for this reason the assessment of damages is smaller than might be awarded to a younger person.
I am also satisfied that the claimant does have ongoing pain in her neck, right shoulder, back and right arm.

Should I approve the settlement?

When considering the provisions of s 6.23 of the MAI Act and cl 7.38 of the MA Guidelines along with the rules and practice directions of the Commission, in deciding whether or not to approve or not approve Mrs Vardouniotis’ settlement, I need to consider:
a)    timing- whether the date of the settlement is more than two years after the accident;
b)    appropriateness- whether the amount of the settlement is just, fair and reasonable, and
c)     understanding- whether Mrs Vardouniotis understands the settlement and its terms and the effect of the settlement in ending her claim for damages.

Timing

I am satisfied that the timing requirements of the MAI Act have been met. It is more than two years since the accident.
I am satisfied that the settlement offer is reasonable.
I am satisfied that the claimant understands the settlement and its terms and the effect of the settlement in ending her claim for damages.

Appropriateness

The amount of the settlement I am asked to approve comprises the following:
Non- economic loss     $150,000
Deductions  $nil
Total  $150,000 inclusive of costs and disbursements.
There is no claim for past and future economic loss. The claimant has retired from work.
I am satisfied that the claim should be approved and so approve it.

Legislation

In making my decision I have considered the following legislation and guidelines:
·the MAI Act, and
·Motor Accident Injuries Regulation 2017.

Alexander Bolton

Member (Motor Accidents Division)

Personal Injury Commission

[2022] NSWPIC 248

26 May 2022