Aaq v QBE
[2021] NSWPIC 100
•28 April 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | AAQ v QBE [2021] NSWPIC 100 |
| APPLICANT: | AAQ |
| RESPONDENT: | QBE |
| MEMBER: | Ms Shana Radnan |
| DATE OF DECISION: | 28 April 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS- Claims assessment; settlement approval under section 6.23 of the Motor Accident Injuries Act 2017; additional information; assessment of non-economic loss; passenger; collision at high speed; aged 77 at the time; extensive injuries; multiple fractures of cervical spine, ribs and sternum; humerus fracture; comminuted tib/fib fracture; fractures of the right ankle and left mid foot; significant recovery from her initial injuries; lifetime Care and Support; Held- $130,000 is just, fair and reasonable. |
| DETERMINATIONS MADE: | 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 clause 7.392 to clause 7.411 of the Motor Accident Injuries Guidelines. |
STATEMENT OF REASONS
Legislative background
The Personal Injury Commission (the PIC) was established on 1 March 2021 and the Dispute Resolution Service (DRS) 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 PIC and cl 14B (1) of the Personal Injury Commission Regulations 2020 designates the Insurer’s application “pending proceedings” and cl 14B (3) empowers me to determine these proceedings.
Because of the date of accident, cl 14B(4)(c) provides that the Motor Accident Injuries Act 2017 and the Motor Accident Injuries Guidelines continue to apply.
Background
QBE (the Insurer) referred the proposed settlement to the DRS which was part of the State Insurance Regulatory Authority on 20 November 2020 for approval. The application was allocated to me for consideration and I have held five teleconferences in the matter as follows:-
(a) 10 December 2020 with the Claimant and Insurer a lengthy teleconference of one hour obtaining particulars and discussing the process of how the matter would be determined.
(b) 21 December 2020 with the Claimant and Insurer seeking additional information on ongoing injuries and disabilities for the assessment of non-economic losses and what additional information would assist me.
(c) 5 February 2021 with the Claimant and Insurer following up on statements to be provided and medical records to be produced.
(d) 5 March 2021 with the Claimant and Insurer again seeking medical particulars to be provided.
(e) 28 April 2020 with the Insurer to correct an error on the face of the offer document.
The Claimant was involved in a motor vehicle accident on the Kamilaroi Highway near Wee Waa on 23 May 2019 at 11.00am. The Claimant was a passenger in the vehicle restrained by a seatbelt. The collision was at high speed with the vehicle rolling and the Claimant being dragged from the damaged vehicle by a passer-by. The Claimant was aged 77 at the time. She was taken by Ambulance to John Hunter Hospital from Narrabri suffering extensive injuries.
Whilst the accident is within the two year period of the motor accident, this claim can proceed as the injuries sustained in the motor vehicle accident were considerable and the Claimant is entitled to non-economic loss, the Insurer having conceded that the Claimant’s whole person impairment would exceed 10% upon the determination made by its injury manager DKT.
The Claimant is not represented by an Australian legal practitioner. She was given the opportunity to obtain legal advice and has chosen not to.
The Insurer made an offer of settlement by letter dated 23 October 2020 in the sum of “$143,000.00 exclusive of Medicare and exclusive of payments made to date.” This represented a payment of $13,000 for past economic losses and $130,000 for non-economic loss.
I reviewed the offer and confirmed with the Insurer that the initial offer of 23 October 2020 referred to no deductions and so the stated sum of $10,877.71 as a likely deduction, could not be deducted as proposed in their letter of offer. A further teleconference took place with the Insurer on 28 April 2021, the Insurer agreed to revise the letter of offer to make it clear that there would be no deductions and the total sum to be paid to the Claimant would be $143,000.
The Claimant, in an email response dated 12 November 2020 has advised that she proposes to accept the settlement if she received the sum of $143,000.
The Claimant requests that the Personal Injury Commission approve the proposed settlement.
The Claimant is scheduled to see Dr Morrissey, Rehabilitation Aged Care Services at Tamworth Hospital on 7 July 2021 in relation to a further rehabilitation assessment. She was given an opportunity to wait for this medical opinion before I determined the matter in case a further deterioration in her condition occurred and she has chosen not to wait for this opinion prior to accepting the settlement.
Information considered
I have considered the documents provided in the matter by the Insurer and the additional information provided by the Claimant and the further information provided by the Insurer which updated medical records. There were five teleconferences held and I requested the provision of additional information to ascertain the ongoing effect of injuries sustained upon the Claimant, details of ongoing treatment, the likelihood of any further surgery, and clinical records from treating general practitioner and her treating specialist.
I received an impact statement of the Claimant undated, updated clinical records of Dr Sivanathan as 3 March 2021 and Report of Dr Morrissey dated 27 February 2020 as to the Claimant’s ongoing rehabilitation and her significant recovery from her initial injuries.
This information was called for to assist in assessing the ongoing impact of injuries as it related to the assessment of non-economic losses. The report of the treating doctor Dr Sivanathan of Wee Waa Medical Centre was received on 26 April 2021. This report was certainly not extensive, but enabled me to ascertain the progress made by the Claimant to date.
The Claimant also provided an additional written statement following the third teleconference which recorded the following:
“My injuries sustained from the accident were very severe with 13 breaks on the right side of my body. Of these breaks, 5 were in the neck. Luckily for me in the breaks in the neck were not in crucial places and I didn’t end up paralysed. I wore a surgical collar for 14 weeks in hospital and I had to learn to walk again after having 2 broken feet and a broken ankle. I spent a long time in rehab in Tamworth hospital. I am still on a walker but I was on a walker before the accident. My right leg is currently very stiff and sore and I have ongoing back pain. I am not as mobile as I was 12 months ago but I am also older than I was 12 months ago. When I go out, I am not able to use steps, I have to look for a disabled toilet and these aren’t easy to find where I live. Getting in and out of a vehicle is difficult. I appreciate the ICare help I am receiving at the moment in the form of showers and some domestic help. ..I have to wear special kind of footwear now after having 2 broken feet and I miss not being able to wear fashionable shoes ..”
Injuries sustained
According to the report of Dr Morrisey, Staff Specialist at Tamworth Hospital the following was recorded in report dated 27 February 2020. The multiple injuries sustained by the Claimant in the accident of 23 May 2019 more specifically were described as:-
“Small subdural haematoma, multiple fractures of cervical spine, her ribs and her sternum. She required a Miami J collar for an extended period of time due to unstable cervical fractures. She required an ORIF of her comminuted right proximal humerus fracture and ORIF of her comminuted tib/fib fracture. She also had fractures of the right ankle and left mid foot which were managed conservatively.
She also had complications including seizures on a background of known epilepsy….. She sustained a left leg DV.
On discharge she was mobilising on a four wheeled walker… Fortunately she was eligible for Lifetime Care and Support who have provided a lot of additional therapy and assistance… since discharge which has helped her a lot….
She reported a good recovery in relation to her neck and I noticed on general observation that she had fair range of movement and didn’t appear to be too restricted. She has ongoing lower back pain but uses a heat pack which is effective for her pain. The range of movement in her right shoulder has improved significantly and she is now able to reach above head which is making personal care easier…. she is receiving massage therapy on her right arm and shoulder and I think this is helping a lot with her range of movement.
In summary, AAQ has made an excellent recovery following the motor vehicle accident last year. It is great to see her getting back to doing things around the home and not being in too much pain which I was concerned about given the extent of her injuries.”
I have reviewed the available medical evidence before me and accept there has been significant recovery since the accident, however there are some ongoing limitations which require specialised footwear, domestic assistance and ongoing conservative modalities of treatment, such as massage therapy from time to time.
The Claimant made an application to the Dispute Resolution Service in relation to the assessment of the Claimant’s pre-accident weekly earnings and this was determined on 20 December 2019 by Stavros Georgiadis, DRS Merit Reviewer. His determination was:-
“the amount of the Claimant’s Pre-Accident Average Weekly earnings is $248.86”.
This was adopted by the Insurer in the terms of settlement and I am satisfied that the sum of $13,000 allowed for as past economic losses is a fair estimate of losses for the period claimed.
Damages for non-economic losses is agreed in the sum of $130,000. These damages are to compensate for pain and suffering as a consequence of the injuries sustained, the loss of amenities in life and the likely impact of any ongoing problems for the remainder of the Claimant’s life expectancy. Noting the Claimant will turn 80 this year, she has (relying on the medium life expectancy table for Australia 2020) a life expectancy of 10.62 years. Her injuries were significant. Her recovery has also been remarkable.
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 Claim
The Insurer accepted liability for the claim ongoing post 26 weeks on 22 August 2019. 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 for the rest of the Claimant’s life pursuant to Divisions 3.4 of the Act.
“Treatment” is widely defined and includes medical treatment (including reviews by the Claimant’s general practitioner, 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. There has also been provision for a certain amount of ongoing domestic assistance to help the Claimant as she has difficulty performing those tasks and Icare is reviewing her ongoing needs.
An application has been made by the Insurer under section 8 of the Motor Accident (Lifetime Care and Support) Act 2006 and medical investigations are being undertaken by KW at Icare, whether the Claimant continues to meet the elegibility criteria for participation in that scheme. The application was endorsed by the Claimant on 3 March 2021.
The claim is confined to past economic loss and non economic loss.
Further investigation
I advised the Claimant and Insurer in the first teleconference, that I required additional information to establish the extent of ongoing injuries and disabilities, the likelihood of further surgery and the ongoing impact of the injuries to the Claimant. I considered the material filed with the application was insufficient for me to be satisfied that the settlement was fair and reasonable.
I issued directions on 21 December 2020 that the Claimant provide to me the following:-
(a) Impact statements - detailing the impact of her injuries upon her and the ongoing impact of such injuries as it effects her daily life, onoing disbaiities, details of pain and suffering, loss of amenities and disfigurement.
(b) Statements from family member or friend, identifying the impact of the injuries upon the Claimant. Details to include the Claimant both before and after the accident.
(c) Opinion from treating GP and specialist as to the the impact of her injuires and the likely ongoing treatment/or future surgery,
(d) Clinical records of the GP.
(e) The Claimant advised she would obtain additional information as to the current treatment she was receiving, but advised that as her location was remote and due to this factor attending doctors was difficult.
(f) The Insurer was requested to produce all medical report it had obtaned in the matter.
A report was requested from the Claimant’s treating general practitioner, Dr Subramaniam Sivanathan of Wee Waa, in December 2020 and his report followed dated 1 March 2021. The total contents of his report recorded the following:-
“1. 26/09/2019 discharged from rehabilitation.
2. Remedial massage twice a month
3. Ongoing massage
4. Domestic working capacity is very limited and relying on support services. Prior to her MVA she was able to perform her daily domestic activities.
5. Neck and lower bak pain and also right arm is weak from her injury she sustained during the MVA. Prognosis is poor, she will need ongoing support”.
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 Insurer in this matter conceded injuries sustained left the Claimant with a whole person impairment exceeding 10%. The Claim could be made.
(b) The settlement must be approved by DRS 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 MA 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 clause 1 requires the amount of the proposed settlement and a breakdown of the amount allowed for each head of damage.
The amount has been broken down as $13,000 for past economic loss and $130,000for non-economic loss.
(ii)Sub clause 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 are no deductions to the settlement sum. This was confirmed in update letter of offer dated 28 April 2021.
(iii)Sub clause 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 clause 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 diasabilities. Whilst the Claimant was given an opportunity to provide an orthopaedic opinion and statements of family, this opportunity was declined.
(d) Clause 7.399 of the MA Guidelines, requires me to consider the following:-
(i)Sub Clause 1 Timeliness – the proposed settlement satisfies the timing requirements in the Act.
Whilst the settlement is within the two year period since the date of the accident, settlement approvals are permitted where injuries have resulted in whole person impairment exceeding 10%.
(ii)Sub Clause 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 of the medical evidence produced in this matter, having spoken to the Claimant on a number of occasions, 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 as it related to ongoing pain and suffering and there is no evidence before me to suggest the Claimant is likely to undertake any further surgical intervention. I find that having regard to the information made available I consider that the agreed sum of $130,000 is just, fair and reasonable and within the range of likely potential damages assessments had the matter been assessed by a claims assessor taking into account the considerable recovery, the Claimant’s age and limited ongoing symptoms.
The Claimant was advised by me, at the first and second teleconference that should she wish to, she was at liberty to seek independent legal advice and that in the event that further medical evidence was provided to establish any deterioration, since the Insurer’s medical investigation were undertaken, that such information could impact on the non-economic losses. At first, the Claimant indicated she may wish to obtain this additional advice. The Claimant confirmed in the third teleconference that she did not wish to undertake this path of retaining legal representation and had decided she was happy to take the settlement offered by the Insurer.
(iii)Sub Clause 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 made aware in the teleconferences 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 and the ongoing care as it related to domestic assistance was being addressed in 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.
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 finality to her claim for damages.
Determination
The proposed settlement is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017.
The proposed settlement complies with cl 7.392 to cl 7.411 of the Motor Accident Injuries Guidelines.
Shana Radnan
Member (Motor Accidents Division)
Personal Injury Commission
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