Allianz Australia Insurance Limited v Vella
[2024] NSWPIC 401
•26 July 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Allianz Australia Insurance Limited v Vella [2024] NSWPIC 401 |
| CLAIMANT: | Joanne Vella |
| INSURER: | Allianz Insurance Australia Limited |
| MEMBER: | Susan McTegg |
| DATE OF DECISION: | 26 July 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval; injury to both ankles, left knee and fractured ribs; claim for economic loss only; assessment of 0% whole person impairment; claimant unfit at date of accident and since by reason of pre-existing workplace back injury; offer of settlement calculated as a buffer of $10,000 for past economic loss and buffer of $25,000 for future economic loss; Held – where offer is for economic loss only and where claimant is and has been unfit for work by reason of back injury settlement, offer is within range of damages if matter was to proceed to assessment; settlement approved. |
| DETERMINATIONS MADE: | Settlement Approval Issued under s 6.23 of the Motor Accident Injuries Act 2017 |
INTRODUCTION
On 26 September 2020 Ms Joanne Vella (the claimant) was driving her vehicle on the Hume Highway at Casula when another vehicle failed to give way and turned across the path of her vehicle causing a collision (the accident).
Ms Vella asserts she sustained the following injuries in the accident:
· anterior talofibular ligament (ATFL) tear of the right ankle;
· injury to the left ankle;
· injury to the left knee, and
· fractured 3rd, 4th and 5th ribs.
Ms Vella has made a claim against Allianz Insurance Australia Limited (the insurer).
In a liability notice dated 29 August 2023 the insurer accepted liability for the claim for common law damages.
The insurer has accepted that Ms Vella had non-threshold injuries and pursuant to Division 3.4 of the Motor Accident Injuries Act 2017 (the MAI Act) she is entitled to payment of reasonable treatment and care for the rest of her life for her accident caused injuries.
The insurer has not conceded Ms Vella has sustained a whole person impairment (WPI) greater than 10%. Therefore, there is no entitlement to damages for non-economic loss. The offer of settlement is calculated as follows:
Past economic loss – buffer including superannuation $10,000
Future economic loss- buffer including superannuation $25,000
Total $35,000
The claimant was not working at the time of the accident due to a back injury the subject of a workers compensation claim. The claimant underwent a fusion at L3, L4 and L5 in
January 2020 and a further fusion in January 2022 between L3 and S1 arising out of the workplace injury. She was certified unfit for work by reason of her workplace injury. The claimant also had a pre-existing tumour on her left knee for which she has undergone surgery.Because Ms Vella is not represented by a lawyer, her settlement must be approved in accordance with the MAI Act.
The insurer lodged the application for approval of the settlement, and it was referred to me for consideration.
THE RELEVANT LAW
Section 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 it complies with the requirements of the MAI Act or the Guidelines.
Clause 7.37 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 Ms Vella, and taking into account any proposed reductions or deductions in the proposed settlement, and
(b) Ms Vella understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.
DOCUMENTS CONSIDERED
I have considered the documents uploaded by the insurer in one indexed and paginated bundle.
REVIEW OF THE EVIDENCE
Liability evidence
Ms Vella was 53 years of age at the time of the accident. She is now 57 years of age.
Application for personal injury benefits
Ms Vella completed an Application for personal injury benefits dated 19 October 2020.
She reported she was cut out of her car and taken to Liverpool Hospital by ambulance. She reported she sustained injuries to both left and right ankles, left knee and chest. She indicated she was awaiting tests to see if her back was compromised.
In relation to pre-existing conditions Ms Vella reported the removal of a Bakers Cyst from her left knee on 25 September 2019. She also reported she had her back fused at level L3, L4 and L5 on 13 January 2020 and was currently on workers compensation with GIO.
Medical evidence
The Ambulance Report reported on arrival at the scene Ms Vella was sitting in the car with neck pain and back pain. She reported a history of back pain but noted the pain was worse post impact. She complained of bilateral ankle pain, bilateral knee pain and cervical spine tenderness.
Following the accident on 26 September 2020 Ms Vella was taken by ambulance to Liverpool Hospital. Ms Vella was discharged the same day. An X-ray of the right ankle/foot revealed no acute fracture.
An ultrasound of the right ankle on 30 September 2020 revealed an anterior talofibular ligament tear and a small ankle joint effusion.
An ultrasound of the left ankle on 7 October 2020 raised the possibility of mild tenosynovitis but no acute fracture.
The claimant underwent a bone scan which revealed increased uptake of the left 3rd, 4th and 5th ribs suggestive of rib fractures.
On 10 November 2020 Ms Vella underwent an MRI of the right ankle which reported a high grade injury involving the ATFL and a low grade injury and scarring involving the CF ligament. There was a partial tear of the deep fibres of the deltoid ligament complex.
An MRI of the left ankle on the same date disclosed a previous injury and scarring involving the ATFL and CF ligaments, bone marrow oedema, and an osteochondral injury with associated degenerative changes.
The claimant underwent physiotherapy. In an Allied health recovery request dated 1 December 2020 Frank Vrataric diagnosed:
“MVA 26.11.2020 – rib fractures, Right ankle – high grade ATFL sprain & partial tear deltoid ligament. Left ankle – ATFL sprain and aggravation of degenerative changes.”
On 2 May 2021 Mr Vrataric, physiotherapist discharged Ms Vella from physiotherapy. It was noted she was walking pain free without a limp, and she had improved range of movement. She had some pain and swelling after prolonged walking on uneven ground.
On 20 February 2021 the claimant’s general practitioner (GP) Dr Ong confirmed Ms Vella suffered from chronic low back pain pre-dating the accident which meant she had no work capacity.
Dr Dave, orthopaedic surgeon
Ms Vella was referred to Dr Dave, orthopaedic surgeon. On 30 October 2020 Dr Dave reported varying degrees of stiffness in dorsiflexion and plantar flexion of the foot and ankle. He noted the claimant’s concern about her knee which she hit on the dashboard. He reported there was little to see on the knee. He referred Ms Vella back for ongoing pain management, physiotherapy, home exercises and possibly referral to a pain clinic.
On 23 November 2020 Dr Dave reported Ms Vella had returned with MRI sprains of both ankles and her knee. He reported it showed chronic sprain injuries as well as some new injuries where there were avulsion flake fractures around the fibular. He noted extensive bone bruising of the various joints. He reported she was managing reasonably well and getting around with any support. He recommended extensive physiotherapy to strengthen her ankle.
Medico-legal evidence
Dr Andrew Keller, occupational physician
Dr Keller assessed Ms Vella on 16 January 2024 and provided a report dated
17 January 2024.He reported Ms Vella was not working at the time of the accident due to the workplace injury requiring lumbar spine fusions. He reported following the accident she underwent physiotherapy on her ankles for three months. He reported ongoing intermittent swelling of the ankles, more on the right, aggravated by walking. He also reported intermittent right ankle pain occurring daily, aggravated by walking.
On examination he noted both ankles revealed pitting oedema to mid-shin level. The right ankle movements included dorsiflexion 10 degrees, plantar flexion 45 degrees, eversion and inversion 15 degrees.
Dr Keller diagnosed three left rib fractures healed and a right ankle anterior talofibular ligament sprain, healed with a normal range of motion and no detectable instability.
Dr Keller opined the rib fractures and right ankle sprain had recovered requiring no ongoing restrictions or treatment. Ms Vella was unfit due to her workplace injury.
Dr Keller assessed a total WPI of 0%.
Preliminary conference on 25 July 2024
The application for approval was listed for preliminary conference on 25 July 2024. Ms Vella was unrepresented and Ms Amie Walsh appeared for the insurer.
Ms Vella informed me she had spoken to Mr Anthony Macri, a family friend about her claim although she had not specifically discussed the settlement offer with him. She did not wish to retain a lawyer.
Ms Vella stated she now has a torn Achilles tendon which is going to require extensive treatment. I asked her whether her doctor considered it was related to the motor vehicle accident. She said it could be but she agreed she was not able to say categorically it was related, simply that having sustained injury her ankle was now vulnerable.
I also explained to Ms Vella that the settlement offer did not include any component for pain and suffering and she would only be entitled to recover damages for pain and suffering if she could show she has sustained a whole person impairment greater than 10%. I informed
Ms Vella that the only evidence before me was the report of Dr Keller who assessed 0% WPI. I reiterated this does not mean she did not sustain injury but simply that her injury did not meet the criteria for an assessable permanent impairment.Ms Vella agreed at the time of the accident she was unfit for work by reason of her back injury. She said she has been certified as unfit for work and has been paid out her superannuation.
I asked Ms Vella if she would like an adjournment to obtain advice about the offer, or to explore further the question of permanent impairment or whether the Achilles tendon tear is causally related to the motor vehicle accident. After some discussion Ms Vella stated she wished the matter to be finalised and the settlement approved. Ms Vella understood this settlement will finalise her right to recover compensation for pain and suffering and economic loss in relation to injury sustained in this accident.
I indicated where the settlement offer is only in relation to economic loss and where Ms Vella is and has been unfit for work by reason of her back injury I consider the settlement to be within the range of damages she would receive if the matter was to proceed to assessment. I informed Ms Vella I was prepared to approve the settlement.
SHOULD I APPROVE THE SETTLEMENT
I am satisfied that Ms Vella is aware of her right to have her reasonable treatment expenses paid for the remainder of her life. Whilst the insurer is only liable to pay statutory benefits including treatment expenses for five years, thereafter the claim may be transferred to the Lifetime Care and Support Authority through CTP Care who will be liable for ongoing reasonable treatment expenses.
I am satisfied Ms Vella understood that the settlement was only in respect of her entitlement to damages for the impairment of her earning capacity. She conceded she had been unfit for work by reason of her pre-existing back injury.
The insurer will not deduct and pay monies to Medicare under the Health and Other Services (Compensation) Act, 1995 (Cwlth) from the settlement sum. In the event a Notice of Charge is raised by Medicare for reasonable and necessary treatment expenses the insurer will pay the charge in addition to the settlement sum as part of their obligation to pay statutory benefits.
CONCLUSION
I am satisfied the proposed settlement is just, fair and reasonable and within the range of likely potential damages assessments if the claim was to proceed to assessment taking into account the nature and extent of the claim, the injuries, disabilities, impairments and losses sustained by Ms Vella.
I am satisfied Ms Vella is aware she can seek legal advice but does not wish to do so.
I am satisfied Ms Vella understands the binding nature of the settlement and that she will be precluded from making a further claim for damages arising out of the accident. I am satisfied Ms Vella is willing to accept the proposed settlement.
Accordingly, pursuant to s 6.23(2)(b) of the MAI Act I approve the settlement of $35,000 in respect of Ms Vella’s claim for damages.
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