Allianz Australia Insurance Limited v Vickers

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Allianz Australia Insurance Limited v Vickers [2022] NSWPIC 518
Claimant:	Gordon Vickers
insurer:	Allianz Australia Insurance Limited
Member:	Shana Radnan
DATE OF DECISION:	20 September 2022
CATCHWORDS:	MOTOR ACCIDENTS - Settlement approval; 57-year-old male; injuries left wrist requiring internal fixation; sternal and rib fractures resolved; 8% whole person impairment no entitlement to non-economic loss; past and future economic loss claimed; specific amount for past based on actual losses; buffer for impairment to future loss of earning capacity; section 6.23 of the Motor Accident Injuries Act 2017; Held – proposed settlement is just, fair and reasonable; settlement approved.
determinations made:	1. The proposed settlement is approved under s 6.23(2)(b) of the *Motor Accident Injuries Act 2017* (the Act). 2. The proposed settlement complies with cl 7.392 to cl 7.411 of the Motor Accident Injuries Guidelines.

Legislative background

The Personal Injury Commission (the Commission) was established on 1 March 2021 and the Dispute Resolution Service (DRS) was abolished by cl 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act 2020. I am a Member of the Motor Accidents Division of the Commission and cl 14B (1) of the Personal Injury Commission Regulations 2020 designates the insurer’s application “pending proceedings” and cl 14B (3) empowers me to determine these proceedings.
Because of the date of accident, cl 14B(4)(c) provides that the Act and the Motor Accident Injuries Guidelines continue to apply.

Background

Allianz (the insurer) referred the proposed settlement to the DRS which was part of the State Insurance Regulatory Authority on 29 July 2022 for approval. The application was allocated to me for consideration and I have held a teleconference in the matter as follows:-
(a)    On 1 September 2022 with Gordon Vickers (the claimant) and insurer a lengthy teleconference of one hour obtaining particulars and obtaining an update as to the claimant’s current medical status, discussing the nature and extent of ongoing injuries as well as determining from questioning the claimant his understanding of the settlement, its finality and assurance that he was satisfied with the settlement.
(b)    The claimant confirmed during the teleconference that whilst he had suffered injury to his left wrist, left elbow, left chest wall his injuries in majority had completely resolved with the exception of his left wrist which continued to feel tight and was now slightly misaligned.
(c)    On the basis that he was having no current treatment and taking no daily medications the medical reports contained in the application were deemed sufficient for me to assess the settlement approval.
(d)    Discussion was held relating to the opinion of Dr Powell that there may be a likelihood of future surgery to the left wrist including a fusion down the track should arthritis set in, the claimant confirmed he would not have any operation, did not want any further opinion on future treatment as he had returned to work in early January 2019 on full duties.
(e)    It was confirmed by the insurer that they obligation to cover all reasonable and necessary treatment for the period of five years post-accident and that contact should be made in the event ongoing treatment was required. The claimant understood this and re-iterated he did not think he would require further treatment.
(f)    I questioned the claimant as to whether he was aware he could seek legal representation and obtain advice as to his rights and the appropriateness of the settlement sum. The claimant responded to me “I am sceptical of lawyers and I don’t want to seek an opinion from them. I am happy with the sum and I just want the approval and the thing over.”
(g)    I double checked the accuracy of the economic loss claim and the claimant informed me he had been with the same employer for 25 years, the company was good to him and he held no fear he would lose his job even with the injuries sustained. He intends to work to age 67 years, a further 10 years from now. He may if his healthy remains good, continue in some way with part-time employment with his current employer as he has a very good relationship with the company.
(h)    The claimant confirmed his time off work was 7 June 2018 to 28 September 2018 and upon his return, his role changed to receiving and dispatch. He received statutory weekly payments until 8 October 2018.
(i)    From January 2019 he returned to the role of store person with the same company earning $1,113 nett weekly.
The circumstances of the accident the claimant was involved in was a collision with the insured’s vehicle at the intersection of Silverdale Road and Avoca Road at when the insured crossed his path to turn into Avoca Road at Silverdale without giving way to oncoming traffic.
The insurer has admitted liability.
He was taken to Liverpool Hospital and was discharged on 10 May 2018. He was under the care of Dr Giles and Dr Laird whilst in hospital and then his general practitioner Dr Lieng thereafter.
The claimant was employed as a sheet metal operator and leading hand with Australian Metal processors.
The insurer admitted liability on 31 July 2020.
A claim for Statutory Benefits claim was made on 24 May 2018. A common law claim on 14 June 2020.
The insurer issued a notice pursuant to s 4.11 of the Act and advised the claimant of no entitlement to non-economic loss on 13 July 2021.
The claimant was reviewed by Dr Powell for the insurer, to provide an assessment of whole person impairment. His assessment was 8% whole person impairment. The claimant was advised that he had the opportunity should he wish, to seek his own assessment of whole person impairment and if such assessment exceeded 10% he could be entitled to non-economic loss. It was further explained, that if there was a dispute as to whole person impairment this would be subject to an application with the Commission for assessment of a medical dispute and this currently could take a further one to two years to be resolved.
The claimant was adamant he wanted the settlement to be finalised and would not seek further assessment of his injuries.
The claimant is not represented by an Australian legal practitioner. He was given the opportunity to obtain legal advice and has chosen not to.
The insurer made an offer of settlement by letter dated 11 April 2022 in the sum of $80,000. A deed of release was also drafted in the sum of $80,000. The insurer subsequently advised of an error that the amount should be $84,706.46 with the Deed of Release to be amended to reflect the sum of $84,706.46. This represented a payment of $34,706.46 for past economic losses and $50,000 for future economic loss. Past economic loss was based on $1,113 nett weekly earnings for the period 7 May 2018 to 8 October 2018.
I reviewed the offer and confirmed with the insurer that the amount of statutory benefits paid to date for past economic loss amounted to the sum of $28,236.31 and this sum would be deducted from the proceeds to be paid to the claimant.
The sum of $34,706.46 was based on the following :
a.     $1,113 nett for three weeks for the period 8 May 2018 to 28 May 2018 amounting to the sum of $3,339;
b.     $1,113 nett for 17 weeks loss between 29 May 2018 to 24 September 2018 where his employer did not have suitable employment available amounting to the sum of $18,921;
c.     $1,113 for the period 25 September 2018 to 8 October 2018 where the claimant returned to work on part-time hours and has been allowed full loss amounting to $2,226, and
d.     loss of superannuation in the sum of $2,693.46.
The claimant was advised after the statutory payments already paid were to be deducted, he would receive $6,470.25 for past economic loss and $50,000 for future economic loss in his hand.
The insurer advised that the settlement offer dated 11 April 2022 was $4,706,46 short in its calculation of past economic loss and amended the sum accordingly.
The future economic claim buffer agreed to was based upon the opinion of Dr Powell that the claimant will likely need to retire earlier than the age of 67 years and may require reduced hours.
The sum agreed to for the anticipated loss of future earning capacity was based upon the reduced hours and possible early retirement was $50,000.
It was highlighted by the claimant he did not take time off due to his injuries apart from the period where work was not available and since then, his employer has been very sympathetic providing alternate takes at the same pay.
The claimant, on 26 April 2022 has advised that he proposes to accept the settlement if he received the sum of $84,706.46.
The claimant requests that the Commission approve the proposed settlement as amended.

Information considered

I have considered the documents provided in the matter by the insurer and the additional information provided by the claimant and the further information provided by the insurer which included medical records. There was no other information provided post teleconference.
I received an oral impact statement of the claimant at the first teleconference.
I have considered all the medical information provided and am satisfied that on the evidence of the claimant as to predominance of recovery from his injuries with the exception of ongoing issues with his left wrist and that the insurer’s medical assessment of Dr Powell dated 11 May 2021, that the claimant’s permanent impairment is below the statutory threshold to receive damages for non-economic loss.
The clinical records produced confirm the recovery of injuries to the claimant’s chest wall, left elbow.
Dr Laird the claimant’s orthopaedic surgeon certified him fit to return to pre-injury duties on 13 February 2019.

Injuries sustained

The claimant suffered the following injuries as noted by Dr Clay in the hospital discharge record:
a.     left distal radius and ulna fracture - open reduction and fixation required;
b.     multiple left-sided rib fractures;
c.     sternal fracture;
d.     small retrosternal haematoma, and
e.     non displace left 4^th toe fracture.
The claimant received care from his general practitioner Dr Sultana at First Care Medical Centre, thereafter. Review of the clinical records accord with the history provided to Dr Powell and the resolution of injuries as stated (noting the exception of the left wrist).
I am to determine whether the proposed settlement complies with any applicable requirements of the Act or cl 7.392 to cl 7.411 of the Motor Accident Guidelines.

The claim

The insurer accepted liability for the claim ongoing post 26 weeks. The insurer, has accepted that the claimant’s injuries are non-minor in nature and that the claimant is entitled to treatment and care relating to the accident caused injuries for the rest of the claimant’s life pursuant to Division 3.4 of the Act.
“Treatment” is widely defined and includes medical treatment (including reviews by the claimant’s general practitioner, specialist), and allied health treatment (including physiotherapy and exercise physiology). Medication (over the counter as well as prescribed) and extends to therapies helping recovery and management of injuries.
The economic loss claimed by the claimant is confined to past economic loss and future economic loss as his injuries assessed did not exceed the threshold to receive non economi loss.

Further investigation

The claimant was offered time to seek investigation into likely future problems associated with his left wrist and has declined this course of action.

Condition of the claimant at the time of settlement

The claimants injuries as it relates to his sternum and ribs and left foot have resolved.
As reported by Dr Powell on 11 May 2021 at page 2:
“His ongoing problems relate to his left wrist, he reported intermittent activity related aching pain over the radial and dorsalnaspect of the wrist. Whilst there is clicking at times there is no significant swelling. There is some mild restriction in range of motion but no sensory changes.”
Dr Powell commented in his supplementary report dated 21 December 2021 that the problems with the left wrist will slowly worsen over time. He reported ongoing pain, stiffness and restriction in range of motion. The doctor recommended a move over time to a less physically demanding role at work to place less stress on the left wrist.
Whilst the doctor did not have access to image studies, his clinical presentation indicated there is a risk of post-traumatic osteoarthritis developing.
The claimant confirmed there had been stabilisation of his injuries and no further deterioration during the teleconference held. No treatment or ongoing medication was taken at the present time.

Approval of settlement

Section 6.23 of the Act provides the following restrictions on settling claims for damages:
(a)    Unless a claimant has a whole person impairment of greater than 10%, the claim cannot be settled within two years.
The timefrarme of the Act has been complied with. The claim is made more than two years from the date of the accident.
(b)    The settlement must be approved by DRS and I am not to approve the settlement unless I am satisfied there is compliance with any of the requirements of the Act or the MA Guidelines.
I am satisfied that there has been compliance with the Act and guidelines.
(c)    Clause 7.389 of the Guidelines requires the insurer to include in its application details of the following:-
(i)Sub-cl 1 requires the amount of the proposed settlement and a breakdown of the amount allowed for each head of damage.
The amount has been broken down as $34,706.46 for past economic loss and $50,000 for future economic loss.
(ii)Sub-cl 2 requires the amount of any deductions in the proposed settlement.
The offer made excluded any Medicare reimbursement. A sum of $28,236.31 will be deducted for past statutory payments made as they relate to economic loss.
(iii)Sub-cl 3 requires the amount of any advanced payments made.
There have been no advanced payments in this matter apart from medical expenses and these do not form part of the settlement.
(iv)Sub-cl 4 requires the evidence, documents and materials relevant to an assessment of the proposed settlement figure.
I have received as much information as the insurer and the ilaimant have been able to provide to establish the nature and extent of the claimant’s injuries and current ongoing diasabilities. Whilst the claimant was given an opportunity to provide further orthopaedic opinion as to likely deterioration and impact of any surgery, the claimant advised he would not undertake any surgery and the opportunity was declined.
(d)    Clause 7.399 of the MA Guidelines, requires me to consider the following:-
(i)Sub-cl 1 Timeliness – the proposed settlement satisfies the timing requirements in the Act.
This has been satisfied. The date of accident was 7 May 2018 and the application for settlement approval was made on 29 July 2022.
(ii)Sub-cl 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 of the medical evidence produced in this matter, having spoken to the claimant, I am satified that the nature of the claimant’s injuries and the ongoing disabilities are known and have stabilised, the extent of past and future economic loss has been arrived at having regard to employment and taxation records. I determine that the agreed sum of $84,706.46 is just, fair and reasonable and within the range of likely potential damages assessments had the matter been assessed by a claims assessor taking into account the considerable recovery of most of his symptoms, the claimant’s age and limited ongoing symptoms as it relates to his left wrist.
The claimant was advised by me, at the first teleconference that should he wish to, he was at liberty to seek independent legal advice and that in the event that further medical evidence was provided to establish any deterioration, since the insurer’s medical investigation were undertaken, that such information could impact on the non-economic losses. The claimant confirmed he did not wish to undertake this path of retaining legal representation and had declared he was happy to take the settlement offered by the insurer and wanted it approved by the Commission.
(iii) Sub-cl 3 understanding – the claimant understands the nature and effect of the proposed settlement is the finality of her claim for damages and is willing to accept the proposed settlement.
The claimant was made aware in the teleconferences 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, if required and approved by the insurer and the ongoing care if required and upon the expiry of the fifth year anniversary any further treatment would required an application to ICare.
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 HIC separately to the sum stipulated in the terms of settlement.
I am satisfied that the claimant is aware of his rights and had freely agreed to the terms of settlement with an understanding of the settlement and its finality to his claim for damages.

Determination

The proposed settlement is approved under s 6.23(2)(b) of the Act.
The proposed settlement complies with cl 7.392 to cl 7.411 of the Motor Accident Injuries Guidelines.

[2022] NSWPIC 518

20 September 2022