Allianz Australia Insurance Limited v Wellington
[2023] NSWPIC 55
•15 February 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Allianz Australia Insurance Limited v Wellington [2023] NSWPIC 55 |
| Claimant: | Suzanne Wellington |
| insurer: | Allianz Australia Insurance Limited |
| Member: | Shana Radnan |
| DATE OF DECISION: | 15 February 2023 |
CATCHWORDS: | MOTOR ACCIDENTS - Settlement approval; 79-year-old female; past and future economic loss only $73,500; closed period past economic loss and allowance for further 2.5 years acceptance claimant would complete 60 years as registered nurse; Held – the proposed settlement is approved. |
| determinations made: | Settlement Approval 1. The proposed settlement is approved. 2. The proposed settlement is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017. 3. The proposed settlement complies with cl 7.392 to cl 7.411 of the Motor Accident Injuries Guidelines. |
INTRODUCTION
The claimant is a registered nurse working part time who will turn 79 this month.
On 16 October 2018 (the claimant) was driving when the insured collided with her vehicle. She was proceeding though an intersection with a green light in her favour.
She was conveyed to St George Hospital. She was diagnosed with left rib fractures and L2 fracture as well as bruising and oedema to the chest. She was discharged on
29 October 2018 into the care of her general practitioner Dr John Rizutto at South Hurstville.The claimant has made a common law claim against Allianz (the insurer) of the at fault vehicle, for lump sum damages on 16 September 2021.
Liability was admitted on 19 July 2022 after investigations concluded.
The claim made relates to economic loss as her injuries did not exceed the threshold of 10% whole person impairment.
The claimant and the insurer have agreed to settle the claim for lump sum damages for the sum of $73,500 for past and future economic loss. There is no entitlement to non-economic loss.
Because the claimant is not represented by a lawyer, her settlement must be approved in accordance with the Motor Accident Injuries Act 2017 (the MAI Act).
JURISDICTION OF THE PERSONAL INJURY COMMISSION
The Personal Injury Commission (the Commission) was established on 1 March 2021 and the Dispute Resolution Service was abolished by cl 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act 2020 (the 2020 Act).
I am a Member of the Motor Accidents Division of the Commission. Clause 14A (1) of the Personal Injury Commission Regulation 2020 designates the application “pre-establishment proceedings” and cl 14D empowers me to determine those proceedings.
Because of the date of the accident cl 14D(3)(b) provides that the MAI Act and the Motor Accident Guidelines 2017 (the Guidelines) continue to apply.
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 it 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.
Preliminary Teleconference on 18 January 2023
The insurer lodged the application for approval of the settlement, and it was referred to me for consideration. I held a teleconference on 18 January 2023. The claimant participated in person and the insurer was represented by Amie Walsh.
I discussed the details of the terms of settlement with the parties and it became apparent that the claimant has missed advising the insurer of a period in 2021 where she was off work for six weeks due to an exacerbation of her injuries. She also advised that she had intended not to retired until she had completed 60 years as a registered nurse.
I requested that the insurer be given an opportunity to review this additional material and the offer in the light of this new information.
Further Teleconference on 14 February 2023
The insurer advised of an amended offer and agreement to settle for the new figure. The offer now was $73,500. Provisions had been made for an additional closed period of six weeks and an allowance for a future loss by way of buffer for occasional days off for the next 2.5 years.
The claimant accepted the offer and advised she understood the nature and effect of the settlement and had done so of her own free will. She advised me “ I don’t want or need a lawyer in this matter, I am happy with the terms”.
She requested I approve the settlement.
The teleconference concluded with me advising I would make my decision and reduce it to writing. The parties were thanked for their assistance.
DOCUMENTS CONSIDERED
I had regard to the following relevant documents:
(a) Liability and quantum:
(i)A6 police report dated 9 January 2019;
(ii)A17 ambulance report dated 16 October 2018;
(iii)A2 application for Statutory Benefits dated 29 October 2018;
(iv)A3 payslips bundle various dated 7 November 2018;
(v)application for common law damages dated 16 September 2021;
(vi)A16 insurer’s admitting liability notice dated 19 July 2022;
(vii)A18 offer of settlement from Allianz to the claimant dated
20 September 2022;(viii)A19 Letter of clarification dated 2 November 2022, and
(ix)AD4 Deed of Release dated 8 February 2023
(b) The insurer relied upon the following medical records in bundle of documents noted on the portal as A1:
A1
St George Hospital Notes
various dates
A8
Certificate of Capacity/Fitness
11 March 2019
A10
Shire Doctors and Dentist clinical records
2 December 2021
A17
Ambulance Report
16 October 2018
(c) A5 claimant’s statement date 12 December 2018 and A11 claimant’s response to particulars dated 10 March 2022.
(d) Settlement documents:
(a)signed agreement for release.
REVIEW OF THE EVIDENCE
The medical records provided from St George Hospital and treating doctors confirmed the claimant’s initial injuries as:
(a) left anterolateral rib fractures 5-7, conservatively managed as per CHIP protocol and analgesics;
(b) left superior facet 2 fracture, managed conservatively (non operatively);
(c) grade 1 L4/5 anterolisthesis -incidental finding (unrelated to accident);
(d) breast contusion neuropraxic pain managed by medication- stable;
(e) CCF peripheral oedema with pleural effusion managed with medication and stable;
(f) flashbacks of motor vehicle accident- post-traumatic stress disorder type symptoms referred to outpatients, and
(g) incidental thyroid lesion – unrelated.
I was able to ascertain the extent of injuries relevant to the claim as contained in the various hospital records pertaining to the treatment of the claimant after the motor vehicle accident and clinical records of Dr John Rizzuto at South Hurstville as a more concise history and relevant to this assessment.
The claimant confirmed she did not have any physiotherapy, she initially rested at home and took medication for pain relief which included reporting of ongoing issues were contained in the clinical records. At an assessment on 11 March 2019 Dr Rizzuto confirmed her fitness to resume normal due on 18 March 2019.
The clinical records reflect other medical conditions diagnosed before and after the subject motor accident and have not bearing on this assessment, so I do not intend to refer to them in consideration of the claimant’s privacy.
Statement of the claimant
At the time of the accident she was working as a registered nurse at Royal Prince Alfred Hospital at Camperdown aged 74 years. She had no capacity to work after the accident until 18 March 2019.
At the time of the accident her average weekly earnings were approximately $1,705.42 gross.
The impact of her injuries prevented her from working for this period to 18 March 2019. She suffered significant back pain and headaches in the initial period from the date of accident to her return to work. This is against a background of migraine headache since
29 November 2017.She suffered a further exacerbation of her injuries and took a further six weeks off work in 2021. She has remained working outside of this specified period.
She has since suffered a drooping eyelid that weeps and she is unsure it is related to the accident. This is a discomfort but does not impact on her ability to work.
When her symptoms flare up she may require time off from work.
She had the intention to work to complete a period of 60 years of registration as a nurse. This is likely to be a further two years from now.
NON-ECONOMIC LOSS
The injuries sustained did not present as a whole person impairment exceeding 10% whole person impairment. There is no entitlement to this head of damage. I am satisfied the medical evidence supports the conclusion any permanent impairment would not exceed the statutory threshold.
INJURIES AT CURRENT TIME
The fracture to her ribs have healed.
The fracture to L2 have healed.
The review of patient history documentation supports the proposition that the claimant may suffer a flare up of lumbar pain from time to time as that which occurred in 2021. The claimant to date has not complained of any further ongoing symptoms to her general practitioner. The attended have related to numerous other medical conditions unrelated to this subject accident.
There is no ongoing treatment for physical or psychological injuries.
PAST ECONOMIC LOSS
The claimant was unfit to return to work for the period 16 October 2018 to 18 March 2019. The insurer paid the sum of $33,341.01 as statutory payment and a further sum of $3918.99.
Tax paid for this period amounted to $10,725.
For the period of a further six weeks in 2021 a sum of $12,407.58 including superannuation was agreed as loss for time off for this additional period.
The loss was rounded up to $61,000.
FUTURE ECONOMIC LOSS
A further buffer to cover a day off here and there was agreed to between the parties as reflective of likely losses should her back pain be aggravated from time to time. An allowance of $5,000 for a period of 2.5 years was made in the sum of $12,500 for future economic loss.
THE SETTLEMENT
The amount of damages agreed in the sum of $73,500 for past and future economic loss is just, fair and reasonable and within the likely range of damages had the matter proceeded to an assessment.
SHOULD I APPROVE THE SETTLEMENT
Section 6.23 of the MAI 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.
Time frames have been complied with.
(b) 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 MA Guideline.
I am satisfied that there has been compliance with the Act and the Guidelines.
(c) 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 is $73,500 for economic loss represents the amount of $33,341.01 in statutory payments, $16,326.57 for additional past losses and superannuation, tax of $10,725 and a rounding up of $607.42 ;
(ii)sub clause 7.389.2 requires the amount of any deductions in the proposed settlement.
The offer made excluded any Medicare reimbursement or other payments made on behalf of the claimant by the insurer. There are only deductions to the settlement sum are the statutory payments already paid to the claimant in the sum of $33,341.01 leaving a balance of $40,158.99 to be paid to the claimant. This was confirmed in the teleconference;
(iii)sub clause 7.389.3 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, and
(iv)sub clause 7.389.4 requires the evidence, documents and materials relevant to an assessment of the proposed settlement figure.
I have received clinical and medical records effectively convering the period of injury and the relevant wage information to confirm the actual losses. The assessment of loss is verified by this information.
(d) Clause 7.399 of the Guidelines, requires me to consider the following:
(i)sub clause 7.399.1 : Timeliness – the proposed settlement satisfies the timing requirements in the Act. This has been satisfied;
(ii)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 satified that the nature of the claimant’s injuries do not entitle damages for non economic loss.
The sum of $61,000 for past economic loss and $12,500 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 Commission.
(iii)sub clause 7.399.3: 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 teleconference that in the event she took the settlement, she could not seek any further damages for non-economic losses and economic losses. She was advised that the insurer would still provide ongoing medical treatment, if required and approved by the insurer. She declined obtaining any further evidence relating to the condition where her right lower eye-lid droops, she did not want to persue this avenue of investigation.
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.
I am satisfied that the claimant was aware of her rights and had freely agreed to the terms of settlement with an understanding of the settlement and its implications.
Determination
This settlement is approved.
The proposed settlement is approved under s 6.23(2)(b) of the MAI Act.
The proposed settlement complies with cl 7.392 to cl 7.411 of the 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;
· the Guidelines, and
· Personal Injury Commission Rules 2021.
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