AAI Limited t/as GIO v Wilson
[2022] NSWPIC 386
•18 July 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | AAI Limited t/as GIO v Wilson [2022] NSWPIC 386 |
| CLAIMANT: | Neil Wilson |
| INSURER: | AAI Limited t/as GIO |
| MEMBER: | Shana Radnan |
| DATE OF DECISION: | 18 July 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Settlement approval; 73-year-old male; injuries soft tissue cervical, neuropathic pain thoracic region, sternal and rib pain, bruising recovered; 3% whole person impairment no entitlement to non-economic loss; past and future economic loss; retired; buffer for impairment to intermittent earning capacity; section 6.23 of the Motor Accident Injuries Act 2017; Held – proposed settlement is just, fair and reasonable; settlement approved. |
| DETERMINATIONS MADE: | 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 (the Act). 3.The proposed settlement complies with cl 7.392 to cl 7.411 of the Motor Accident Injuries Guidelines. |
INTRODUCTION
On 26 April 2019 Neil Wilson (the claimant) sustained injury in a motor vehicle accident (the accident).
The claimant has made a claim against GIO (the insurer) of the at fault vehicle, for lump sum damages.
The insurer accepted liability for the claimant’s claim for statutory benefits and has paid her $800 by way of statutory weekly benefits and seeks credit for that sum.
The insurer has accepted that the claimant had non-minor injuries and pursuant to Division 3.4 of the Motor Accident Injuries Act 2017 (the MAI Act) he is entitled to payment of reasonable treatment and care for the rest of his life for his accident caused injuries.
Upon the determination of Dr Courtenay the claimant’s whole person impairment was not greater than 10%. This means the claimant is not entitled to recover damages for non-economic loss. I am satisfied that the medical evidence before me indicates that the opinion of Dr Courtenay is accurate noting the injuries sustained and the recovery as defined in the medical records.
The claimant and the insurer have agreed to settle the claim for lump sum damages for the sum of $11,800. The settlement offer made by the insurer in the sum of $11,800 has been calculated as follows:
· $5,800 for past economic loss’ and
· $6,000 for future economic loss.
Because the claimant is not represented by a lawyer, his settlement must be approved in accordance with the MAI Act.
I have decided to approve the settlement.
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 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 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 (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%.
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) the proposed settlement satisfies the timing requirements in s 6.23(1) of the 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 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.
TELECONFERENCE ON 14 JULY 2022
The insurer lodged the application for approval of the settlement, and it was referred to me for consideration. I held a teleconference on 14 July 2022. The claimant participated in person and the insurer was represented by Brooke Hill.
I discussed the details of the terms of settlement with the parties and it became apparent that the claimant was not really happy with the settlement and was angry with the system.
The claimant was advised that if he considered the settlement unfair, he was welcome to either seek legal representation or in the alternative, provide me with the details which he considered supported his economic loss claim. He referred to numerous emails he held with details of jobs offered to him which he was unable to take due to the injuries from the accident. I asked if he would like to send this material to me and I would review it. He then said with word to the effect: “I’m fed up with this I just want it over”. Again he was advised by me that he was not forced to agree to the terms of settlement and if the material was provided I would look into the economic loss claim.
I confirmed that the settlement was not including non-economic loss as the material before me did not indicate that his injuries were over the whole person impairment threshold of 10%. He then advised me that the report commissioned by the insurer was ridiculous with the doctor talking more about his family than investigating his injuries and whilst the determination was 3% he had obtained a report that determined his injuries at 14%. I then asked him if he held the report and he said he did. I requested that he provide me a copy so that the dispute in relation to whole person impairment could be referred to the medical dispute division of the Commission for a determination of whole person impairment and that if that came in over the threshold of 10% he would be entitled to damages for non-economic loss. Whereupon the insurer offered to make the application on his behalf.
The claimant then asked if he could split the settlement dealing with the economic loss now and whole-person impairment separately and was advised by the insurer that the settlement would deal with all damages at once. It was not likely that the insurer would agree to two settlements. The insurer then offered to make a payment in part to him for financial hardship now with the balance paid once the medical issue of whole person impairment was finalised. The claimant refused this offer indicating that he wanted all the money now not just a bit of it, again that he was fed up and wanting it over.
He stated: “I don’t need the money, its not about the money, I just was it over”.
I explained to the claimant that if he had time to think about it, he may decide to investigate the options given to him and that he did not have to make a decision that day, he could think about it. This option was refused with a comment again to the effect “am fed up with the whole thing, I just want it over, it has ruined my life”.
The claimant mentioned he had been told by someone from the insurer that when the matter settles he will not have any further treatment paid. He then sought confirmation that his treatment would continue and he was informed by the insurer that the statutory benefits would continue and that whilst the settlement finality referred to damages, it did not relate to his ongoing treatment needs and that the person he spoke to may have referred to the earlier legislation and not the MAI Act. He was then invited to make contact either with his case officer or Ms Hill to address ongoing treatment needs.
The claimant was informed that the settlement amount of $11,800 would result in a payment to him of $11,000 nett as the Insurer had already paid $800 in statutory benefits to date. He said he thought he would be getting the whole $11,800 and when I suggested we could check with the case officer and Ms Hill advised the payments he had received of $800 would not be paid again, he confirmed he wanted to settle it once and for all.
The discussion turned to Centrelink payment clearance, and that the claimant had made contact with Centrelink and was advised it would not impact on his pension and entitlements. The insurer then informed him that payment of the settlement would be made within 28 days of the insurer receiving the Centrelink clearance certificate.
I asked the claimant if he wished to go through the evidence before me and he advised he did not. I also asked if he had any questions to which he replied he did not. I confirmed that my reasons would issue with review of all the material and the decision to be reduced to writing.
He asked if I had not read the material to which I advised him that I had reviewed all the documentation contained in the Application before me which constituted some 410 pages including the medical evidence and clinical records and financial records produced.
Again I asked the claimant if there was anything further he wished to ask or any statement he would like to make and he declined to provide any further material.
The insurer was also asked if any further information or statement was to be made and the representative said “No”.
The teleconference concluded with me advising I would make my decision and reduce it to writing. The parties were thanked for their assistance.
DOCUMENTS CONSIDERED
I had regard to the following relevant documents:
· Liability
Application for Personal Injury Benefits dated 15 June 2019;
Application for common law damages 1 July 2021 ;
liability notice 22 September 2022, and
non minor injury determination date 4 May 2020 upon review of earlier decision 6 August 2019.
· Treating Medicals
Certificates of Capacity dated 9 May 2019,22 April 2021 and 22 July 2021;
Allied Health Recovery ReportsT dated 17 July 2019, 18 February 2020, 14 September 2021;
referral to Dr Wallace dated 10 November 2020;
report of Dr Golowenko dated 3 August 2021;
reports of Dr Laurent Wallace 24 October 2019, 20 November 2019, 19 February 2020, 29 April 2020, 20 May 2020, 9 July 2020,16 December 2020, 24 February 2021,17 November 2021and 23 February 2022;
clinical records of Eastbrooke Medical Centre as at 19 May 2020and 9 March 2022;
clinical records of Movement Therapy as at 1 September 2021,and
clinical records of Oaks Medical Practice as at 15 March 2022.
· Medico-Legal Reports
report of Dr Courtenay dated 9 April 2022;
· Economic Loss
letter from Illawarra Festival of Wood 18 October 2019, and
Individual Tax Returns 2014-2020
· Settlement documents
claimant’s reply to request for particulars 26 October 2021;
email to claimant – offer 13 May 2022;
email from claimant – Centrelink 13 May 2022;
email to claimant – offer 13 May 2022, and
signed Agreement for Release 23 May 2022.
REVIEW OF THE EVIDENCE
The claimant is currently 73 years of age.
The claimant was travelling in his vehicle towing a horse trailer when the GIO’s insured collided with the driver’s side of the vehicle causing the trailer to jack-knife.
Police and ambulance did not attend the accident scene.
Liability was admitted in the claimant’s common law claim on 22 September 2021.
Pre-existing injuries and unrelated conditions
The clinical notes from Oaks Medical Practice commencing on 24 November 2017 to 15 March 2022 were reviewed. The records reveal the following pre-existing injuries and conditions:
(a) The claimant suffered from Gasto Oesophageal Reflux Disorder requiring the use of Nexium (as recorded on 24 November 2017, 17 April 2018, 25 June 2018, 6 September 2018, 15 October 2018 and 14 January 2019).
(b) The claimant suffered from osteoarthritis requiring the use of Mobic and Prednisolone (as recorded on 24 November 2017, 15 January 2018 and 17 April 2018).
(c) The claimant suffers from ‘nerve pain’ of the right hip and inner thigh. On 14 August 2018, Dr Golowenko noted no history of trauma, a tender lumbar spine as a result of a previous crush injury, noting possible pain from the lumbar spine. Dr Golowenko prescribed Lyrica and referred the claimant to Bounce Back Physio Chiro & Osteo. Dr Campbell recorded chronic ‘lbp’ on 7 February 2019 for which the claimant consulted with a chiropractor.
(d) The claimant suffers from hearing loss requiring the use of hearing aids (as recorded on 29 November 2018 and 7 December 2018).
(e) The claimant sustained injury to his 4th and 5th right fingers on 11 November 2018 as a result of an incident involving horse reigns being pulled through his fingers (as recorded on 14 and 15 January 2019). He was diagnosed with a ‘fracture at head middle phalanx’ resulting in fixed flexion deformity (as recorded on 6 February 2019). The claimant was ultimately referred to Dr Christopher Scott, hand surgeon on 6 February 2019.
The clinical notes from Eastbrooke Medical Centre commencing on 26 February 2019 were reviewed. The records confirm the pre-existing history of GORD and injury to the claimant finger, as well as elevated blood pressure and urinary issues.
INJURIES
Following the accident, the claimant attended upon his doctor Dr Golowenko at Bowral.
As a result of the accident the claimant claimed he sustained the following injuries:
(a) injury to knee;
(b) injury to neck;
(c) injury to shoulders;
(d) bruising to ribs;
(e) injury to right leg, and
(f) headaches.
The claimant consulted Dr Golowenko who referred him for investigations and specialist care.
It is noted that the claimant first consulted his general practitioner, Dr Golowenko, on 26 April 2019, the day of the accident. At that time, he reported:
“pain + tenderness c spine, R scapula, shoulder and arm “ following the motor accident.
It was also noted by the claimant’s NTD that he had bruising to the right medial thigh. He was referred for physiotherapy in respect of the cervical spine, right shoulder, arm and scapula. The claimant subsequently complained on sternal and left rib pain on 9 May 2019. Dr Golowenko referred the claimant for an X-ray of the sternum and left ribs, and recommended he continue physiotherapy. “The X-ray revealed no abnormality.”
The claimant underwent treatment for his injuries at Bounce Back (now Movement Therapy) during the period 10 July 2019 to 3 November 2020, funded by GIO.
The claimant attended upon Dr Laurent Wallace for pain management on 15 October 2019. History of presenting symptoms recorded by the doctor were as follows,
“Left Chest pain, predominantly anteriorly, predominantly T4-7 dermatomes, occasionally going higher up to T 2 or lower to T10 and occasionally radiating posteriorly.”
Investigations
Bone scan, x-ray and CT of the chest do not show bony injury, but is consistent with neuropathic pain”.
Impression:
The pain likely represents intercostal neuralgia and it has been caused by the motor vehicle accident in April 2019. The mechanism of injury of seatbelt compression of the chest is entirely consistent with the pain and dysaesthesia that he is feeling in this area.”
The claimant was reviewed again by Dr Wallace, on 9 July 2020 and he reported that on 29 June 2020 the claimant has undergone a T4-T7 nerve block and pulse radiofrequency. He reported that his sleep had improved, he had stopped using medications for pain and his pain was “70% better than it was previously - all very pleasing. I hope it lasts”.
By 16 December 2020 the pain has returned and the ongoing complaints were:
(a) left T4-T7 intercostal neuralgia with shortness of breath;
(b) tenderness at T6, and
(c) left posterior hip/sacroiliac joint pain bothering him for a while but not as severe as rib pain.
Dr Wallace again performed radiofrequency T3-T7 and at review on 24 February 2021 the claimant reported 20% improvement but improvement was continuing. The claimant had returned to horse riding which the doctor note “is promising”.
A further report dated 11 November 2021 advised that symptoms continued in the thoracic region. The T6 specific tender spot had resolved after radiofrequency in June 2020. Possible chronic pain for cartilaginous injury left mid lower ribs contributing to pain and left posterior hip/sacroiliac joint pain no longer bothering him.
The final report dated 23 February 2020 recorded the same ongoing issues with the addition of mental fogginess and poor sleep due to chronic pain. Recommendation was a trial of Amitriptyline possible spinal cord stimulator trial and ongoing physiotherapy with high levels of physical activity “generally beneficial for him”.
Clinical records of Dr Golowenko provided the reporting of symptoms on the day of the accident and management of his injuries including X-ray and physiotherapy. There were numerous attendances for other unrelated conditions
Dr Donnely performed a SPECT CT scan which found “No focal abnormality in the chest wall to explain the current symptoms and Low grade arthritis at various sites.”
Medico-legal opinion: Dr Courtenay qualified by the insurer
Associate Professor Courtenay, orthopaedic surgeon, assessed the claimant on 28 March 2022. He opined:
“Mr Wilson had a fairly significant motor vehicle accident although he was able to drive the vehicles home afterwards, although that was not at a long distance. He has ongoing problems with his neck and nerve pain around his chest. It is a little unclear the origin of this. may well be that it is referred from his neck. There was certainly no neurology that I saw on that day but he said that he had tendemess at the T7 level.
There were previous x rays to confirm that he has had arthritis in these areas before and his symptoms are worse as a result. He also has had that soreness around the front of his right thigh and I suspect that that is related to the osteitis pubis which was present in the past and not an uncommon thing to find from a man who has done a lot of horse riding in the past. That requires no specific treatment and is not associated with any nerve damage.
With respect to his right knee, there are some degenerative changes in his medial meniscus with some chondral changes as well and they appear to have been flared as a result of the accident although the timing of the investigation of those seems to be quite a long time after the original accident and I cannot find records in the notes to confirm that it was directly from the accident. It may well just be general age-related changes.” (p 5)
His assessment of whole person impairment was recorded as follows:
“The problem that I found was with regard to physical load to his cervical spine and I made that assessment. There was no evidence of radiculopathy and I have made a 50% deduction for the pre-existing changes on the x ray.
The reason I believe it is appropriate to make a deduction for pre-existing is that although he said he did not have many symptoms, there was clear evidence in the records that he had been investigated by way of bone scan prior to his accident and that would indicate to me that there actually had been symptoms.
In my opinion the cervical spine is assessed as DREII as per Table 41 p 78 there was a specific injury, there is no radiculopathy and there is nonuniform loss of range of motion.
I have assessed the ADLs at 1% as per table p 317. I added ADLs to Cervical Spine and deducted 50%
| Body Part Motor Accident Reference %WPI %WPI Sub Total
Guidelines AMA4 deduction WPI%
Cervical Spine 5% 50% 3%
Right Lower Limb
See below 0% 0%
ADSLs 1% 0% 0%
Total % WPI using Combined Table page 3%
I have assessed his knee as it has a full range of movement but there was a complex meniscal tear on MRI which is possibly new. However, Table 64 p 85 only allows impairment for partial meniscectomy. Given there is a full range of movement, there is no assessable impairment of his knee.” (p 9)
Having reviewed the medical evidence I am satisfied that the claimant’s injuries would not exceed the statutory threshold and that non-economic loss would not have been available to the claimant.
I accept that the claimant is still symptomatic and frustrated by the impact of his injuries upon his daily life. He has reported return to horse-riding and other strenuous activities and this is commendable and evidence of some significant recovery. There is ongoing treatment and the insurer is assisting the claimant with the necessary treatment supported by his specialist or general practitioner.
The injuries sustained have resulted in a claim for economic loss on the basis that the injuries have impacted on the claimant’s earning capacity. This is determined below.
ECONOMIC LOSS
In his Application for Personal Injury Benefits, the claimant indicated that he was retired at the time of accident. He is in receipt of the aged pension. The claimant subsequently provided correspondence from Suzanna Montague of Illawarra Festival of Wood dated 18 October 2019 indicating that the claimant was employed to demonstrate his craft as a ‘Wheelwright’ at the Illawarra Festival of Wood on 12 and 13 October 2019. He was unable to attend due to ill health and was to be paid $800 in total.
Dr Courtenay reported:
‘He retired about seven years ago as a qualified coach builder and wheelwright. He still does some of this work on and off and he loves to keep himself involved, so he certainly even though he has retired, still keeps himself very active.’
In his particulars dated 26 October 2021, the claimant indicated that, notwithstanding that he was in receipt of a pension, he undertook some paid work from Stewart Manufacturing and other sources. He indicated that he is/was a wheel wright coachbuilder and was regularly asked to demonstrate such skills at heritage fairs.
The estimate of losses claimed by the claimant was $16,050 based upon the following sourced of work and the amount to which the claimant claims he could not do the work due to his injuries.
(a) Camden show $800;
(b) Stuart Manufacturing $1,500;
(c) Bathurst Heritage trail $750;
(d) Illawarra Festival of wood $1,200;
(e) Canberra Woodwork guild $4,500;
(f) RAS five day demonstration $3,000;
(g) Bi Centennial Gun Carriage pole replacement $1,800;
(h) Canberra Show $1,100, and
(i) Beauwood Stud carriage restoration $1,400.
The claimant confirmed that as a result of the combination of Covid and his medical condition has meant he was in receipt of no income for the last financial year.
The claimant supplied his taxation records to the insurer to support his economic loss claim and the taxation return and ATO assessments evidenced his gross and nett yearly income for the below financial years as follows:
Pre-accident
Financial year Gross Expenses Nett Yearly in
2013/2014 $2,000 $1,869 $131
2014/2015 $2,400 $2,110 $290
2015/2016 $1,500 $735 $765
2016/2017 $1,500 $598 $902
2017/2018 $1,500 $485 $1,015
2018/2019 $1,500 $395 $1,105
Post-accident
2019/2020 $1,200 $9 $1,191
The insurer submitted that the claimant’s estimate of income as outlined in paragraph 59 failed to take into account the business expenses (which have been claimed in previous taxation returns) into consideration. Further, the claimant acknowledged that the Covid-19 pandemic had also contributed to his inability to earn an income since the accident.
The claimant’s pre-accident earnings in the two years prior to the accident equated to an average of $1,060 per annum.
Accordingly, the insurer has allowed a buffer of $5,800 for past economic loss on the basis that the accident related injuries caused a reduction in the claimant’s earning capacity since the accident.
I am satisfied that the provision made in the settlement and agreed to by the claimant accords with the losses in past earning capacity. He was not able to provide any evidence of the losses initially claimed.
FUTURE ECONOMIC LOSS $6,000
Dr Courtenay did not provide opinion on capacity for employment in circumstances where the claimant had retired. He did however note he was back essentially doing all his activities although a little slower than normal.
Nonetheless, GIO has made an allowance for future economic loss, noting the claimant’s view that his ability to earn an income has in part been affected by accident-related injuries.
Whilst the claimant is 73 years of age and is retired, the insurer accepted that the claimant’s most likely future circumstances but for the injury (as required by s 4.7 of the MAI Act) is that the claimant would have continued to demonstrate his skills at heritage fairs and the like from time to time.
The parties have agreed on a future loss of $6,000 on the basis that accident-related injuries continue to cause a reduction in the claimant’s earning capacity. It was based upon losses continuing for a further six years will an allowance of $1,000 yearly.
The insurer noted that the claimant was advised on 12 May 2022 that his Centrelink payments may be affected by the settlement in that Centrelink may require a certain amount to be paid to them out of the settlement. The claimant confirmed in the teleconference held that he had made contact and was assured there would be no impact on his entitlements.
SHOULD I APPROVE THE SETTLEMENT
I am satisfied that the amounts allocated in the settlement for past and future economic losses accord with the financial records produced in this matter.
The sum of $5,800 for past economic loss is appropriate. The insurer is to have credit for the sum of $800 paid in weekly statutory payments to date.
In assessing future economic loss, I must have regard to the provisions of s 4.7 of the MAI Act which states no allowance may be made for future loss of earning capacity The unless the claimant establishes that the accident has caused a change in her most likely future circumstances.
In cases such as Medlin v State Government Insurance Commission (1995) 185 CLR and Husher v Husher (1999) 197 CLR 138, the High Court confirmed that the fundamental questions to be determined in a case such as this, are whether the claimant has sustained a loss or diminution in his earning capacity and, if so, whether that loss or diminution will result in economic loss.
Further, it is appropriate to award a buffer when the impact of an injury upon the economic benefit from exercising earning capacity after injury is difficult to determine, as per Penrith City Council v Parks [2004] NSWCA 201. I agree that this is an appropriate case for the award of a buffer.
I also agree that a buffer of $6,000 for the future impairment of the claimant’s earning capacity is appropriate having regard to information before me.
I am satisfied that the claimant is aware of his right to have his reasonable treatment expenses paid and he will continue to approach the insurer when such is required.
Ms Hill advised that the insurer would not deduct and pay monies to Medicare under the Health and Other Services (Compensation) Act, 1995 (Cwlth) from the settlement sum. If any charge is raised the insurer will pay the charge as a treatment expense in addition to the settlement sum.
I advised the claimant if a charge is raised by Medicare in respect of treatment expenses paid by Medicare relating to the injury, he should refer the matter to the insurer to pay that charge as part of their obligation to pay reasonable treatment costs.
CONCLUSION
I find the timing requirements of s 6.23(1) of the MAI Act had been satisfied. The settlement has taken place more than two years since the date of accident.
I am satisfied the proposed settlement is just, fair and reasonable and within the range of likely potential damages assessments if the claim was to proceed to assessment taking into account the nature and extent of the claim, the injuries, disabilities, impairments and losses sustained by the claimant.
I am satisfied the claimant was aware he could seek legal advice but chose not to avail himself of legal representation.
I am satisfied the claimant was given an opportunity to change his mind, seek an assessment of his injuries and was definite in his desire to accept the settlement and conclude the matter.
I am satisfied the claimant understands the binding nature of the settlement and that he will be precluded from making a further claim for damages arising out of the accident.
I am satisfied the claimant was willing to accept the proposed settlement and his decision to accept it was of his own volition.
Accordingly, pursuant to s 6.23(2(b) of the MAI Act I approve the settlement of the claimant’s claim for damages.
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, and· Motor Accident Guidelines 2017/Personal Injury Commission Rules 2021.
Shana Radnan
Member (Motor Accidents Division)
Personal Injury Commission
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