Allianz Australia Insurance Limited v Veleski
[2024] NSWPIC 687
•11 December 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Allianz Australia Insurance Limited v Veleski [2024] NSWPIC 687 |
| CLAIMANT: | Vicky Veleski |
| INSURER: | Allianz Australia Insurance Limited |
| MEMBER: | Elizabeth Medland |
| DATE OF DECISION: | 11 December 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; approval of settlement of damages claim under section 6.23; claimant 63 years of age at time of accident when she was a driver of a vehicle that was T-boned by a motorcycle at an intersection; injuries include aggravation of pre-existing spondylosis of the cervical spine in addition to chronic post-traumatic stress disorder; medical assessments of the Commission certify a 0% whole person impairment (WPI) for the neck injury and a 9% WPI for the psychiatric injury caused by the motor accident; claimant now 68 years; claimant had been working as a pathology courier for around 10 years prior to the accident, however, had been on workers compensation weekly payments for approximately 12 months at the time of the accident as a result of an earlier motor accident; Held – proposed settlement of $76,333.56 comprising of past and future economic loss approved. |
| DETERMINATIONS MADE: | CERTIFICATE Issued under s 6.23(2)(b) of the Motor Accident Injuries Act 2017 1. The claimant and the insurer have agreed to settle the damages claim in the amount of $76,333.56. 2. The proposed settlement is approved for the purposes of s 6.23 of the Motor Accident Injuries Act 2017. |
Reasons for Decision
BACKGROUND
Ms Vicky Veleski (the claimant) is a 68-year-old female (born in 1956) who suffered injuries as a result of a motor vehicle accident which occurred on 25 November 2019.
She was the driver of a vehicle that was turning right at a green light of an intersection when an insured motorcycle failed to give way and “T-boned” the claimant’s vehicle.
A claim for statutory benefits was lodged by the claimant on or about 2 January 2020, with Allianz Australia Insurance Limited (the insurer), the compulsory third party insurer of the motorcycle considered at fault.
The claim was accepted, and the claimant has been receiving statutory benefits for treatment and care expenses. In addition, some payments of weekly statutory benefits have been made totalling $6,333.56.
The claimant subsequently lodged a claim for damages on or about 25 October 2021 with liability accepted by the insurer.
The claimant is self-represented.
The claimant and the insurer have agreed to settle the claim for damages for an amount of $76,333.56.
A “deed of release” has been signed by the parties which formalised the proposed settlement.
The insurer subsequently lodged an application with the Personal Injury Commission (Commission) seeking approval of the settlement.
The matter has been allocated to me as a Member of the Commission.
I held a preliminary conference with the claimant and the insurer on 10 December 2024.
After some discussion, I indicated that I approve the proposed settlement. The content of that discussion is relevantly referred to below.
LEGISLATIVE FRAMEWORK
Section 6.23 of the Motor Accident Injuries Act 2017 (MAI Act) provides:
“(1) (repealed)
(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 (the Guidelines) provides:
“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 satisfied 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.”
DOCUMENTS CONSIDERED
I have considered the documents provided in the application. No reply has been received. I have formed the opinion that the application includes sufficient information for me to proceed with the settlement approval.
SUMMARY OF EVIDENCE
The claimant completed Year 10 at Kogarah High School and thereafter worked at a jewellery manufacturing factory and then a plastic toy manufacturing factory. The claimant has also worked in the hospital kitchen and clothing and jewellery section in a retail store. Most recently, the claimant was working as a pathology courier driver.
Medical evidence
A NSW Ambulance crew attended the scene and transported the claimant to Sutherland Hospital. At hospital, she was noted to have headache, neck pain, dizziness and blurred vision. Pre-existing right sided weakness is documented. No acute injuries were noted on imaging and a full range of motion of the cervical spine was noted.
The claimant visited her general practitioner (GP) on 17 December 2019 and she was certified as unfit for work suffering with anxiety, insomnia and post-traumatic stress disorder.
The claimant was referred for psychology treatment in March 2020.
The claimant has suffered prior injuries relevant to the claim. The claimant had an active workers compensation claim at the time of the subject accident and a report of Dr Bodel dated 28 February 2019 noted complaints of neck pain with examination revealing guarding and dysmetria. A soft tissue injury to the neck was diagnosed with aggravation of underlying degenerative change. A 5% whole person impairment assessment was made at the time.
The claimant’s application for person injury benefits reveals the claimant suffering symptoms in both her shoulders at the time of the accident. These complaints are confirmed in the material as being present from at least 29 May 2019.
Personal Injury Commission’s medical assessments
The claimant has been examined by a number of Medical Assessors in connection to a threshold injury dispute and later a whole person impairment dispute.
Medical Assessor Sidorov in a medical assessment dated 11 March 2021 certified the claimant as suffering a non-threshold injury – post-traumatic stress disorder, caused by the motor accident.
He noted the claimant developing nightmares and flashbacks related to the accident, and persistent avoidance of any external reminders of the accident. She experienced negative alterations in cognition and mood. The claimant also described problems with concentration and difficulties staying asleep.
A certificate of Medical Assessor Shahzed dated 23 October 2023, provides an assessment of 0% whole person impairment in respect of a cervical spine injury. However, a finding of a 5% pre-existing impairment was found. The Medical Assessor found that an alleged shoulder injury was not caused by the motor accident.
On examination pain was noted in the neck and left shoulder, with the left side of the neck tender to touch, with pressure and swelling on the left side of the neck.
The Medical Assessor found the claimant had suffered an aggravation of cervical spondylosis with the pain radiating down to the left neck. The Medical Assessor noted the claimant had a long pre-existing history of symptoms of both shoulders.
In respect of the psychological injury the claimant was assessed by Medical Assessor Shen who issued a certificate dated 2 February 2024. He certified the claimant suffering a 9% whole person impairment due to a persistent depressive disorder and post-traumatic stress disorder caused by the motor accident.
He found that the claimant is not able to return to work due to her anxiety with driving.
Medico-legal opinion
The insurer obtained a report from Dr Machart dated 9 June 2022. The claimant complained of symptoms in her neck and left shoulder. He opined that the claimant suffered an aggravation of her cervical spondylosis causing non-verifiable radicular symptoms. No additional structural injury of the left shoulder was found.
The doctor felt that it was not appropriate for the claimant to return to her pre-injury work as a courier. He recommended her being rehabilitated into an administrative type role.
The insurer also obtained a report from Dr George, psychiatrist dated 10 June 2022. He diagnosed post-traumatic stress disorder, with a possible depressed element. He provided an assessment of 6% whole person impairment.
DAMAGES
Non-economic loss
On account of the medical assessments conducted on behalf of the Commission the claimant is not entitled to damages for non-economic loss.
Economic loss
The claimant had been employed in her pre-injury role as a pathology courier for approximately 10 years prior to the accident. She had not worked for approximately 12 months prior to the subject accident on account of a prior motor accident for which she was in receipt of workers compensation benefits.
At the preliminary conference the claimant advised me that she had, at the time of the subject accident, been certified as fit for work with certain restrictions. She told me that she was going to return to work, however, initially performing office duties only.
I noted that the taxation material provided to me indicated that prior to the motor accident, and prior to her workers compensation claim, she was earning on average around $550 per week gross. The claimant thought that she was perhaps receiving more than this. I note, however, that the PAYG payment summaries confirm this to be the case.
The insurer has allowed a buffer of $40,000 for past economic loss to account for any loss of opportunity to work caused by the motor accident.
Noting the claimant’s pre-injury earnings, I consider the amount to be fair and reasonable, particularly in light of the pre-existing injuries resulting in the receipt of weekly payments of workers compensation.
In respect of future economic loss the proposed settlement includes a “buffer” of $36,333.56. I questioned the insurer’s representative as to the precise nature of the amount and how that does not immediately resemble a “buffer” allowance. It was explained to me that this amount took into account the amount of $6,333.56 in payments of weekly statutory benefits which will be deducted from the figure the claimant is to receive in her hand. I accepted this as making appropriate logical sense.
I note the medical evidence appears to be relatively unison in the opinion that the claimant is suffering from an aggravation of her cervical spine spondylosis together with post-traumatic stress disorder. The medical evidence largely supports the notion that the claimant is unfit to return to her pre-injury work.
Noting that the claimant is aged 68 years and has now passed retirement age, I consider the allowance for future economic loss to be fair and reasonable and within the likely range of damages that would be assessed by the Commission.
OTHER CONSIDERATIONS
At the preliminary conference, I raised with the claimant that she was not represented by a legal practitioner. The claimant was aware of her entitlement to engage legal representation, however, was clear that she did not wish to do so.
I find that the amended and signed settlement agreement in respect of the proposed settlement appropriately protects the rights of the claimant.
At the preliminary conference, I explained to the claimant that the settlement only extinguishes her right to damages. I noted that she would have an ongoing right to receive treatment and care at the expenses of the insurer, on the basis that such treatment was related to the injuries caused by the accident and that the treatment and care was reasonable and necessary. The claimant was not fully aware of this ongoing right and was pleased to confirm that this was the case.
The claimant has been in receipt of payments from Centrelink by way of a disability support pension. It has been explained by the insurer to the claimant that it may be the case that Centrelink may issue a notice that requires an amount to be forwarded to them as a payback from the settlement amount. I also explained to the claimant that Centrelink may determine that she may be precluded from receiving payments for a certain period as a result of the settlement.
I explained that neither myself or the insurer can predict what Centrelink’s determination would be. However, I was advised that the claimant has been in discussions with Centrelink and she was aware that Centrelink will need to issue a clearance before the settlement funds are released.
CONCLUSION
I find the settlement amount to be fair and reasonable and within the range of likely potential damages assessments for the claim were the matter to be assessed by the Commission.
On the basis of the above, I approve the proposed settlement in the amount of $76,333.56 pursuant to s 6.23(3) of the MAI Act.
0
0
0