Allianz Australia Insurance Limited v Ray
[2024] NSWPIC 489
•3 September 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Allianz Australia Insurance Limited v Ray [2024] NSWPIC 489 |
| CLAIMANT: | Sanjoy Ray |
| INSURER: | Allianz |
| MEMBER: | Michael Inglis |
| DATE OF DECISION: | 3 September 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; section 6.23(2)(b); settlement approval; 55-year-old male with soft tissue injuries to the cervical and lumbar spine and a subtle avulsion fracture to the right knee; past economic loss; allowance of buffer for future economic loss; Held – the proposed settlement is approved. |
| DETERMINATIONS MADE: | CERTIFICATE 1. The proposed settlement in the sum of $57,000 is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017. |
STATEMENT OF REASONS
INTRODUCTION
The claimant is a 55-year-old male who was working as a Solutions Architect at the time of the accident for BNP Paribas Securities Services.
The claimant was involved in an accident on 8 May 2022 in which the claimant was driving along Tullimbar Street, Croydon Park, when the insured failed to give way and collided with the claimant's vehicle.
The claimant was taken by ambulance to Royal Prince Alfred Hospital. He was discharged on 8 May 2022 after clear cervical spine imaging, though an avulsion fracture of the right knee was queried. He was treated with a Zimmer Splint. A CT scan of the right knee dated
11 May 2022 found a subtle avulsion fracture of the quadriceps attachment. The claimant underwent physiotherapy on the right leg, cervical spine and lumbar spine.The claimant underwent review by his general practitioner and was referred for physiotherapy as is noted above. The physiotherapist reported on 29 January 2024 and noted that the claimant had undergone 11 sessions of physiotherapy, had some restriction in the left knee at last review, had full range of motion in his lumbar spine and some restriction in his neck.
The claimant was examined by Dr Rimmer, orthopaedic surgeon, on 27 March 2024.
Dr Rimmer reported on 2 April 2024.On examination of the right knee, Dr Rimmer noted:
“With the claimant standing, the overall alignment of the right knee is neutral, which is symmetrical. Gait was normal. With the claimant supine, quadriceps musculature is symmetrical. There is no effusion. There is no joint line tenderness. Collateral and cruciate ligaments are intact. Range of motion is 0-130° and pain-free.”
Dr Zimmer noted further that the claimant was working full-time as a solutions architect and that no hobbies, sporting activities or home duties had been affected.
Dr Zimmer assessed the whole person impairment of the cervical spine at 0%, the lumbar spine at 3% and the right knee at 3% as a result of a healed undisplaced patella fracture.
The claimant ceased work with his pre-accident employer and commenced duties in a similar position with Transport NSW. He described that as a better position.
The claimant at the time of his examination by Dr Rimmer reported no ongoing pain or restriction in the cervical and lumbar spine, however, he noted some ongoing niggling pain in the right knee, particularly when using stairs. There was no ongoing swelling, locking or instability. The claimant was issued a Pre-Injury Duty Certificate of Capacity on
24 May 2022.
PRELIMINARY CONFERENCE
A preliminary conference was held on 11 July 2024. At that preliminary conference, the claimant informed me that he walked regularly and was jogging twice per week.
Nevertheless, he said that his right knee continued to be “a little bit of a problem”. He continued to have physiotherapy from time to time with his most recent treatment occurring about three weeks before the hearing.
The claimant told me that his only physical restriction was that when going upstairs, he noted a tingling kind of pain above the knee. His work activities were not interfered with and by choice he attended the office once or twice per week.
Appropriately, the insurer reminded the claimant that his continuing physiotherapy would continue to be supported by the insurer as long as the appropriate medical certification as to its necessity was provided.
DOCUMENT CONSIDERED
The application and attached supporting material.
Report of Dr Stephen Zimmer dated 2 April 2024.
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 he 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 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 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.
NON-ECONOMIC LOSS
The medical evidence before me indicated that the claimant's injuries did not present as whole person impairment exceeding 10%. There is no entitlement to this head of damage contained in the insurer’s offer. I am satisfied the medical evidence supports the conclusion of any permanent impairment from his injuries would not exceed the statutory threshold,
Dr Rimmer's report addressed this issue.
INJURIES AT CURRENT TIME
The pain and tingling sensation in the claimant's right knee are intermittent. His right knee symptoms have stabilised although he requires physiotherapy from time to time. The injuries to his neck and cervical spine seem to have largely resolved.
PAST ECONOMIC LOSS
I was provided with a schedule of past economic loss compiled from the claimant's pay slips. The insurer had made payment for wages entitlements in the sum of $3,689.48 for which it claims credit. Past economic loss totalled $6,673.20 which was rounded off to $7,000.
FUTURE ECONOMIC LOSS
The insurer submitted that the appropriate allowance for future economic loss was a buffer of $50,000 to allow for occasional time off. I note that this may be associated with the need to undergo physiotherapy from time to time. The insurer made the point that the claimant had maintained full-time work and had obtained a new job in a more satisfactory position for him.
THE SETTLEMENT
The amount of damages agreed in terms of settlement is the sum of $57,000. I am satisfied that the sum of $7,000 for past economic loss and $50,000 for future economic loss is just, fair and reasonable and within the likely range of damages were it to have been assessed by a Member of the Personal Injury Commission.
I am also satisfied that the claimant understands the nature and effect of the proposed settlement and that he thought that, that it finalises his claim for damages and that he is willing to accept the proposed settlement.
DETERMINATION
The proposed settlement is approved under s 6.23(2)(b) of the MAI Act.
The proposed settlement complies with cls 7.392 to 7.411 of the Guidelines.
The insurer is to have credit for the sum of $3,689.48.
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