Allianz Australia Insurance Limited v Khoshaba
[2024] NSWPIC 544
•2 October 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Allianz Australia Insurance Limited v Khoshaba [2024] NSWPIC 544 |
| CLAIMANT: | Fraidoon Khoshaba |
| INSURER: | Allianz Australia Insurance Limited |
| MEMBER: | Shana Radnan |
| DATE OF DECISION: | 2 October 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accidents Injuries Act 2017; settlement approval in the sum of $22,000; 67-year-old male; no entitlement to non-economic loss, small closed period past economic loss, and small buffer future economic loss; injuries include resolved sternal fracture, undisplaced fracture right 2nd and 3rd rib, small hiatus hernia and minor gravitational atelectsasis; Held – proposed settlement is just, fair and reasonable; settlement approved under section 6.23. |
| DETERMINATIONS MADE: | CERTIFICATE 1. The proposed settlement in the sum of $22,000 is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017. 2. The proposed settlement complies with cl 7.392 to cl 7.411 of the Motor Accident Injuries Guidelines. |
STATEMENT OF REASONS
INTRODUCTION
Fraidoon Khoshaba
(the claimant) was injured in a motor accident which occurred on
20 February 2023 when the insured swerved into his lane causing impact. He was taken by ambulance to Liverpool Hospital where he remained until
The claimant sustained the following injuries:
(a) undisplaced fracture right 2nd and 3rd rib;
(b) non-displaced fracture of sternal body;
(c) small hiatus hernia; and
(d) minor gravitational atelectasis.
The claimant brought a common law claim for damages was lodged on 27 February 2024. The insurer accepted liability for the damages claim on 22 April 2024.
The parties have reached an agreement to settle the claim in the sum of $22,000 representing $15,421.72 for past economic loss:
(a) Past losses were based upon the claimant’s earning capacity of $2,713 weekly and was certified unfit for work until 10 March 2023. A loss of $2,713 for four weeks amounting to $10,852, tax on weekly payments of $3,376 and superannuation at 11%.
(b) Future economic loss was allowed in the sum of $6,165.25 for the occasions where his injury is aggravated and this was estimated to be one day per month a loss of $542.60. A weekly loss of $125 was calculated according to the multiplier for 12 months less 15% for vicissitudes.
(c) The total for past and future economic loss amounted to $21,586.97 and was rounded up to $22,000.
The application before me is the approval of the settlement.
THE RELEVANT LAW
Sections 6.23(2) and (3) of the Motor Accident Injuries Act 2017 (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 Personal Injury Commission Guidelines.
Clause 7.38 of the Guidelines states I must be satisfied as to the following:
(a) 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.
Preliminary conference on 12 September 2024
The conference was conducted via video-link. On this occasion the nature of the settlement was discussed. The claimant confirmed the resolution of his injuries and his understanding of the terms of settlement.
The claimant confirmed he was in good health with no ongoing symptoms and no ongoing restrictions.
Entitlement to non-economic loss was discussed and the claimant’s understanding of the terms of settlement were investigated. Statutory payments made to date were confirmed in the sum of $10,199.08 and the net sum to be received by the claimant amounted to $11,800.92.
The claimant advised he did not wish to seek legal advice, was aware he could if he chose to and his willingness to accept the terms of settlement. The claim was confined to past and future economic losses. The basis of calculations for past and future, tax and superannuation disclosed.
The parties confirmed their desire for the settlement to be approved and advised there was no other information to be relied upon.
DOCUMENTS CONSIDERED
I have regard to the following relevant documents contained in evidence bundle of 110 pages:
· Liability:
(a)police report dated 2 April 2023;
(b)application for statutory benefits dated 8 March 2023;
(c)application for common law damages dated 27 February 2024;
(d)liability notice dated 22 April 2024;
(e)Deed of release – dated 12 July 2024, and
(f)submissions of the insurer dated 24 July 2024.
· Medical records:
(a)Medical certificates
(b)Liverpool Hospital Discharge Summary
(c)Greenlight Return to Work and Recovery Assessment dated
21 February 2024;(d)New Age Physiotherapy Functional Report dated 30 May 2024
· Financial records:
(a)Claimant’s payslips 14 November 2022 and various others.
· Settlement documents:
(a)Deed of Release dated 12 July 2024.
Injuries
The claimant’s application for common law damages noted he sustained the following injuries:
(a) undisplaced fracture right 2nd and 3rd rib;
(b) non-displaced fracture of sternal body;
(c) small hiatus hernia; and
(d) minor gravitational atelectasis.
The discharge summary of Liverpool Hospital reported “Central chest pain following motor vehicle accident. ICU admission for respiratory monitoring and pain management.”
He was discharged into the care of treating general practitioner on 23 February 2023 having spent three days in hospital for observation.
Non-economic loss
The claimant did not sustain injuries which have resulted in a determination of whole person impairment exceeding 10%. He was now reported a complete recovery and has no entitlement to damages for non-economic loss.
Past economic loss
At the time of the accident the claimant was employed at Cleanaway as a refinery team leader. His net weekly earning capacity $2,713 weekly. His role was office based with some physical activities in the production section where repairs might be necessary.
He was certified unfit for work for a period of one week between 3 March and 10 March 2023 suffering from pain from his sternal fracture and thoracolumbar back pain as certified by Dr Michael Sorani his local doctor.
He regularly attended physiotherapy and by 6 July 2023 reported ongoing recovery. He reported an ability to carry out all his work related duties on 8 May 2023. By 3 July 2023 he reported resolution of his midsternal pain and continued participating in home exercise.
By 8 July 2023 Dr Paul O’Grady certified he was confident all symptoms would have resolved within the coming month.
During the preliminary conference I questioned the claimant as to days of work he had taken due to the injuries sustained in the accident. He confirmed he only took of approximately four weeks and had returned to work with no further complications.
I am satisfied that the amount allowed for past economic loss accords with the facts. The claimant confirmed he had continued to work without complication and little time off. The basis of the calculation of past economic loss was as follows:
(a) Four weeks at $2,713 = $10,852
(b) Tax paid = $3,376
(c) Superannuation = $1,193.72
I am satisfied that the past losses agreed to between the parties accords with the financial records produced by the claimant which included pay slip and the medical records and certificates of fitness issued.
Future economic loss
The claimant confirmed upon return to work he has been able to undertake his pre-accident work related tasks without restriction. He is now aged 67 and has reached retirement age. He is happy to continue with work and expressed a view he would probably work for a further 12 months at best.
He understood the provisions of future loss was based upon an ongoing loss of one day per month for the remaining period he intended to work.
During the preliminary conference he informed me he has not needed any time off in the last 12 months. His symptoms had completely resolved and was happy continuing in the office based role.
The claimant understood the concession made by the insurer allowed for an intermittent period of loss in the event his back pain flared up.
The parties have reached agreement that the claimant receives the sum of $6,165.25 for a loss of $125 weekly for a period of 12 months amounting to $5,408.12 and superannuation at the rate of 14% amounting to $757.13.
Insurer’s submission
It is the insurer’s submission that the proposed settlement figure is an appropriate one and complies with the requirements of cl 7.37 of the Guidelines, in that it 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”.
Accordingly, the insurer recommended the proposed settlement figure of $22,000 be approved.
The claimant also confirmed his desire that the settlement be approved by me.
Impact of injuries upon the claimant
I am satisfied the claimant initially suffered sternal and back pain which impacted on his ability to return to work by 10 March 2023. During the period immediately post accident, the claimant had difficulty performing activities of daily living due to back pain and chest pain. He required medication during this period and rest.
I am satisfied the claimant has recovered from the injuries at the time of assessment. The claimant and medical records concur with my conclusion.
REVIEW OF THE EVIDENCE
The claimant attended upon Liverpool Hospital for initial treatment. He attended upon his general practitioner thereafter.
By July 2023 the claimant’s symptoms had mostly resolved with the exception of occasional muscle spasm which necessitated a short period of physiotherapy and home exercise. Records of Green Light work and recovery dated 12 April 2023 confirmed his return to office based duties without compromise. (Page A105)
His treatment was conservative in nature and he has reached complete recovery according to the claimant’s responses during the preliminary conference and the reported comments of Dr O’Grady recorded in the return to work records produced.
Treatment needs have been exhausted and the claimant confirmed his employment tasks do not exacerbate any symptoms. He confirmed to me he has not had any further treatment and does not require any pain medication currently.
SHOULD I APPROVE THE SETTLEMENT
Section 6.23 of the MAI Act provides the following restrictions on settling claims for damages:
(a) The settlement must be approved by a Member of the Commission and I am not to approve the settlement unless I am satisfied there is complaince with any of the requirements of the MAI Act or the Motor Accident Guidelines.
I am satisfied that there has been compliance with the Act and the Guidelines.
(b) Clause 7.389 of the Guidelines requires the insurer to include in its application details of the following:
(i)sub-clause 7.389.1 requires the amount of the proposed settlement and a breakdown of the amount allowed for each head of damage.
The amount for past economic loss is $15,421.72; the amount for future economic loss is $6,165.25. Rounded up an allowance of $22,000.
(ii)sub-clause 7.389.2 requires the amount of any deductions in the proposed settlement.
The insurer has paid to the claimant statutory payments in the sum of $10,199.08 which it seeks credit. The claimant will receive net proceeds of $11,800.92.
(iii)sub-clause 7.389.3 requires the amount of any advanced payments made be specified. There had not been any advanced payments made apart from known statutory benefits.
Medical expenses have been met by the insurer and these do not form part of the settlement.
(iv)sub-clause 7.389.4 requires the evidence, documents and materials relevant to an assessment of the proposed settlement figure.
I have reviewed the clinical and medical records effectively convering the period of injury and the relevant period to date. I note the medical records accord with the claimant’s reported symptoms and period of incapacity. The payslips provided accord with the claimant’s history of earning capacity and time off work taken due to his injuries. The information produced by the insurer has given me a good indication of the injuries, treatment and prognosis.
(c) Clause 7.399 of the Guidelines, requires me to consider the following:
(i)sub-clause 7.399.2: 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 the medical evidence produced in this matter, I am satisfied that the claimant has made good recovery and has returned to work without restriction. The amounts allowed for past and future economic loss accords with the facts. I find the sum agreed upon is just, fair and reasonable and within the likely range of damages were it to have been assessed by a Member of the Commission, and
(ii)sub-clause 7.399.3: understanding – the claimant understands the nature and effect of the proposed settlement is the finality of his claim for damages and is willing to accept the proposed settlement.
The claimant was made aware in the teleconference that in the event he took the settlement, he could not seek any further damages for non-economic losses and economic losses. He was advised that the insurer would still provide ongoing medical treatment and care needs, if required and approved by the insurer based upon medical need.
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 Health Insurance Commission separately, if appropriate.
I am satisfied that the claimant was aware of his rights and had freely agreed to the terms of settlement with an understanding of the settlement and its implications.
CONCLUSION
I am satisfied the proposed settlement of $22,000 is just, fair and reasonable and within the range of likely potential damages assessments if the claim was to proceed to assessment by a Member of the Commission 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 and but chose not to retain legal representation.
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 subject accident.
I am satisfied the claimant was willing to accept the proposed settlement and his decision to accept it was of his own volition.
I am satisfied the claimant is aware that $10,199.08 will be deducted from the proceeds of settlement and that he will receive $11,800.92 net.
Accordingly, pursuant to s 6.23(2(b) of the MAI Act, I approve the settlement of the claimant’s claim for damages in the sum of $22,000.
The proposed settlement complies with cl 7.392 to cl7.411 of the Motor Accident Injuries Guidelines.
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.
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