Allianz Australia Insurance Limited v Fuchs
[2022] NSWPIC 416
•6 July 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Allianz Australia Insurance Limited v Fuchs [2022] NSWPIC 416 |
| CLAIMANT: | Robert Fuchs |
| INSURER: | Allianz Australia Insurance Limited |
| MEMBER: | Brett Williams |
| DATE OF DECISION: | 6 July 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Late claim; full and satisfactory explanation; section 6.13 of the Motor Accident Injuries Act2017; the claimant sustained injury in a rear end collision on 17 April 2021; the Application for personal injury benefits was received by the insurer on 2 February 2021; whether the claimant had provided a full and satisfactory explanation for the failure to make the claim within 3 months of the accident; Held – the claimant’s explanation was not full; the claimant had not provided a full account of her conduct including her actions; knowledge and belief from date of accident until date provided explanation on 11 February 2022; where explanation not full cannot be satisfactory. |
| DETERMINATIONS MADE: | Issued under section 6.23 of the Motor Accident Injuries Act 201 1. The proposed settlement is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017. |
Background
Robert Fuchs (the claimant) was injured in a motor accident at Arncliffe on 3 September 2019. He subsequently made claims for both statutory benefits and damages on the insurer of the other driver involved in the accident, Allianz Australia Insurance Limited (the insurer).
Liability for both claims was admitted by the insurer. Relevantly, the claimant has received weekly payments of statutory benefits.
In a letter dated 8 November 2021 the insurer informed the claimant that it had determined he was not entitled to damages for non-economic loss. This decision was based on the opinion of Dr Gothelf[1], to which I will return later in these reasons.
[1] Report of Dr Gothelf to the insurer dated 1 September 2021.
The claimant and the insurer have agreed to settle the damages claim for the sum of $12,000 (the proposed settlement). As the claimant is not legally represented the damages claim cannot be settled unless the proposed settlement is approved by the Personal Injury Commission (the Commission): s 6.23(2)(b) of the Motor Accident Injuries Act 2017 (MAI Act).
These proceedings, by which the parties seek approval of the proposed settlement, were commenced by the insurer on 16 May 2022.
Statutory framework
Restrictions on the settlement of a claim for damages are found in s 6.23 of the MAI Act, which is in the following terms:
“6.23 Restrictions on settlement of claim for damages
(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 of or made under this Act or the Motor Accident Guidelines.”
Clause 7.37 of the Motor Accident Guidelines states:
“7.37 Under section 6.23(3) of the Act, before the Personal Injury Commission may approve the settlement of a claim for damages, it must be satisfied that:
(a) the proposed settlement satisfies the timing requirements in section 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 the Commission, 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
(c) the claimant understands that they are entitled to be represented in respect of the claim by an Australian legal practitioner
(d) the claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.”
Procedural Direction MA3 concerns the requirement for the Commission to approve the settlement of a claim for damages in circumstances where the claimant is not represented by an Australian legal practitioner; and the process of obtaining the Commission’s approval of the settlement of the claim. In determining whether to approve the proposed settlement I have taken into account the timeliness, appropriateness and understanding requirements referred to in the Procedural Direction. I am satisfied that relevant material is available to enable all of the relevant facts in issue to be determined.
Evidence
In accordance with directions made on 20 May 2022, the insurer lodged with the Commission a bundle of all documents it relies on in relation to the damages settlement approval. At the teleconference held on 5 July 2022 the claimant confirmed that he did not wish me to consider any other material.
I have read and considered all the material in the insurer’s bundle. I will not refer, in these reasons, to all the material in the bundle. I will, however, canvas aspects of the material to provide necessary context for my decision.
Medical evidence
The NSW ambulance report dated 3 September 2019 records that the claimant denied any loss of consciousness or any neck pain. There was a small abrasion to the claimant’s left thumb, together with swelling and pain. The claimant was transported from the accident scene to St George Hospital.
The discharge referral from St George Hospital dated 3 September 2019 confirms that the claimant was seen in the emergency department following a motor accident and was discharged the same day. His primary complaints were of pain and swelling at the base of his left thumb. There was no evidence of a head injury. The claimant was referred to Sydney Hand Hospital for review. An X-ray of the left hand is reported to have demonstrated no acute fracture or malalignment.
An MRI scan of the claimant’s left thumb was performed. In a report dated 18 October 2019 it is recorded that the MRI identified a partial tear of the ulnar collateral ligament of the 1st MCP joint at the distal insertion.
Clinical notes from the claimant’s general practitioner (GP) have been provided. The notes include an entry on 5 September 2019, which appears to be the claimant’s first attendance on the GP after the accident. In addition to complaints of a left thumb injury, the entry also records:
“?whipplash [sic] disorder(RT shoulder and lumbar back)”
The material before me includes a certificate of capacity dated 5 September 2019. The certificate records that the claimant had no capacity for work between 3 September 2019 – 15 September 2019. Certificates dated 27 September 2019 and 9 October 2019 state that he had capacity to undertake some type of work three hours a day five days a week from 13 October 2019 – 27 October 2019. A certificate dated 4 November 2019 records that the claimant was fit for pre-injury work from 28 October 2019.
In October 2019 the claimant was referred by his GP to Dr Nabarro and Dr Heath. Dr Heath, hand surgeon, wrote to the claimant’s GP on 30 October 2019. The doctor noted that on examination there was mild swelling around the MP joint of the left thumb. There was an excellent range of motion of the thumb, slightly better than on the right uninjured side. Dr Heath diagnosed a left thumb ulnar collateral ligament injury which had been treated appropriately. There was no wrist injury and no further treatment was necessary. The report states that if discomfort persisted a cortisone injection could be given. No arrangements were made for the doctor to see the claimant again.
Notes from the physiotherapist relate to treatment directed to the claimant’s neck. There is a physiotherapy discharge report dated 4 June 2020. The report records that, from a functional perspective, the claimant was unrestricted with respect to sitting, standing, walking, driving, stairs, squatting, lifting, carrying, pushing and pulling.
Dr Gothelf’s report
Dr Todd Gothelf, orthopaedic surgeon, assessed the claimant at the insurer’s request and provided a report dated 1 September 2021. Dr Gothelf took a history that the claimant was born and raised in Germany. He completed high school to year 9. He then completed training as a chef, and has worked as a chef in a number of countries before he migrated to Australia in 1985. He is right hand dominant.
At the time of the accident the claimant was working full time as a head chef. His daily tasks involved prepping and cooking. His duties include frequent chopping and the use of his arms and standing all day. The doctor took a history that the claimant was off work for two months after the accident. He returned to light duties on 13 October 2019 and to full duties on 28 October 2019. The claimant reported that he had continued working full duties and was “tolerating the full duty work well”.
Dr Gothelf recorded a history that while the claimant may have lost consciousness for a brief moment after the accident, he denied any head injury. Immediately after the accident the claimant noticed left thumb pain and swelling. He was taken to hospital by ambulance. The claimant’s thumb was placed in plaster and he was referred to the Sydney Hand Hospital. He saw Dr Heath. His left thumb was placed in a custom splint for about eight weeks. He had two sessions of physiotherapy. The doctor took a history that the claimant first noticed neck pain about two days after the accident. He had 26 sessions of physiotherapy for his neck.
Dr Gothelf recorded that the claimant rated his left thumb pain as zero on a scale of 0 (no pain) to 10 (the worst pain imaginable) and that the claimant’s left thumb sometimes hurts with use at work. He was no longer having any treatment for his left thumb. The claimant told the doctor that his neck is sometimes stiff. The stiffness comes and goes. He was receiving no treatment for his neck. The neck symptoms are not getting better or worse.
Dr Gothelf diagnosed a partial strain of the ulnar collateral ligament in the claimant’s left thumb. The MRI of 18 October 2019 confirmed a partial tear of the ulnar ligament of the 1st MCP joint at the distal insertion. The claimant also suffered a cervical spine strain with persistent neck pain and stiffness that comes and goes and radiates to his posterior right shoulder. There was no evidence of pre-existing conditions. In the doctor’s opinion, the claimant has a full capacity for work. He was not likely to experience a restriction or reduction in earning capacity in the future. The time he had had off work after the accident was reasonable. The report records that, with respect to the claimant’s neck, there was no evidence of guarding, no dysmetria and no radicular complaints. The doctor assessed a 0% whole person impairment of the claimant’s neck and left thumb injuries.
Other evidence
In his application for personal injury benefits dated 9 September 2019, the claimant recorded that he suffered “whiplash, sore back, sore shoulder” as a result of the accident. There is also reference to treatment and investigations in relation to his left thumb.
The claimant’s pay records confirm that he is employed full time on an annual salary of $80,000. His net fortnightly pay is $2,338.92.
The PAYG summary for the year ending 30 June 2019 confirms gross payments of $83,076. The total tax withheld was $19,926.
Teleconference
On 5 July 2022 I conducted a teleconference with the claimant and the insurer’s representative, Ms Alechna.
The claimant confirmed that he was aware he could be represented by a lawyer. I asked him whether he wished to be legally represented and he told me he did not. The claimant confirmed that he understood that if the settlement was approved he would not be entitled to receive any further payments of weekly statutory benefits. He also confirmed that he understood that the proposed settlement amount for his damages claim, if approved, would be paid by the insurer as a lump sum on a once and for all basis, and that no further claim for damages could be made by him under the MAI Act in relation to the accident.
The claimant told me that, as a result of the accident, he suffered injury to his left thumb, neck, back and right shoulder. He told me that the left thumb injury had resolved completely. He explained that he experienced occasional symptoms in his back, neck and shoulders. He has not seen a specialist in relation to his injuries since October 2019. He also confirmed that he had not been to see his GP in relation to his injuries since October 2019.
The claimant told me that he had approximately two months off work after the accident. He then returned to work on light duties for a couple of weeks. From late October 2019 he returned to his full pre-accident duties. The claimant told me that he had not experienced any problems performing his work since that time. He has had no further time off work. The claimant confirmed the nature of the duties he performed as a head chef. He told me that he has been able to perform his duties in an unrestricted manner.
The claimant confirmed that the amount allowed for past economic loss, when combined with the weekly payments of statutory benefits he had received, reflected his lost wages since the accident.
Ms Alechna confirmed that the allowance for past economic loss included an amount for tax paid on weekly benefits. She confirmed that there were to be no deductions to the proposed settlement. Accordingly, if the proposed settlement is approved, the claimant would receive the full amount of $12,000.
Determination
The proposed settlement is in the sum of $12,000, of which $6,700 represents past economic loss and $5,300 is for future economic loss.[2]
[2] Letter from the insurer to the claimant dated 10 December 2021.
The insurer has paid the claimant weekly payments amounting to $9,600.01, including income tax of $2,964. The proposed settlement does not include the weekly payments that have been paid to the claimant and those payments are not to be deducted from the proposed settlement. The proposed settlement includes an amount to reflect the income tax paid on weekly payments of statutory benefits.
The claimant has confirmed that the allowance for past economic loss, when combined with the weekly payments he has received and the allowance for tax paid on those benefits, reflects his loss of earnings since the accident.
The claimant is 63-years-old. He intends to work until he is 67, a further four years. He has not had any time off work since late October 2019, when he returned to his pre-accident duties without restriction. His left thumb injury has resolved. He experiences occasional symptoms in his neck, back and shoulders.
The allowance of $5,300 for future economic loss represents a buffer and is said to reflect one day off work every two months for the remainder of the claimant’s working life.
The settlement satisfies the timing requirements in s 6.23(1) of the MAI Act. I am satisfied that 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 the Commission, taking into account the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by the claimant. I note that there are no proposed reductions or deductions to the proposed settlement.
I am satisfied that the claimant understands he is entitled to be represented in respect of the claim by an Australian legal practitioner and that he does not want to be. I am also satisfied that the claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.
In these circumstances, the proposed settlement is approved.
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