Brown v AAI Limited t/as GIO

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Brown v AAI Limited t/as GIO [2021] NSWPIC 106
APPLICANT:	Gary Marshall Brown
RESPONDENT:	AAI Limited Trading as GIO
MEMBER:	Ms Susan McTegg
DATE OF DECISION:	7 May 2021
CATCHWORDS:	MOTOR ACCIDENTS- Claims assessment; settlement approval; casual truck driver; temporarily trapped; hit right knee; non-minor injuries; now 63 years of age; truck driver; not working at time of the accident; damaged left arm; depression; assaulted; pre-existing osteoarthritis in his right knee; already on a waiting list before the accident; right total knee replacement surgery; left shoulder rotator cuff repair and sub-acromial decompression; high levels of anxiety, depressive symptoms and anger/irritability; Major Depressive Disorder; Held- not entitled to damages for non-economic loss; entitlement to damages for economic loss; satisfied the proposed settlement is just, fair and reasonable.
DETERMINATIONS MADE:	1. This proposed settlement is approved. 2. The amount of the claim for damages is approved in the total amount of $ 171,680.

STATEMENT OF REASONS

INTRODUCTION

On 21 December 2017 Mr Gary Brown was driving an Isuzu truck north on Coldstream Road, Tucabia when an unsecured auger slid off the rear of a tabletop truck to the road. The auger hit Mr Brown’s truck causing it to leave the road, collide with a truck before landing onto the driver’s side. Mr Brown was temporarily trapped by his seat belt but eventually was able to exit the vehicle through the passenger side window, although he hit his right knee against the steering wheel when doing so.

Mr Brown has made a claim against AAI Limited the CTP insurer of the at fault truck, for lump sum damages.

Mr Brown and the Insurer have agreed to settle the claim for lump sum damages for the sum of $171,680 inclusive of costs and disbursements. Mr Brown has received assistance from Mr John Panuccio of Compensation Claims Australia Pty Ltd. However, because Mr Brown is not represented by a lawyer, his settlement must be approved in accordance with the Motor Accident Injuries Act, 2017 (the Act).
The Insurer lodged the application for approval of the settlement, and it was referred to me for consideration. I held a teleconference on 6 May 2021 with Mr Brown and Mr Charles Williams of Moray & Agnew.
The Personal Injury Commission (the PIC) 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. I am a Member of the Motor Accidents Division of the PIC. 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 Clause 14D(3)(b) provides that the Act and the Motor Accident Guidelines (the Guidelines) continue to apply.

THE RELEVANT LAW

Section 6.23(1) of the 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%.
Section 6.23(2) and (3) of the 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 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 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

(c)     the Claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.

THE SETTLEMENT

The Insurer accepted liability for Mr Brown’s claim for statutory benefits and has paid treatment benefits to, or on behalf of Mr Brown.
The Insurer has accepted that Mr Brown had non-minor injuries and pursuant to Division 3.4 of the Act he is entitled to payment of reasonable treatment and care for the rest of his life for his accident caused injuries.
The Insurer paid Mr Brown $1,680 by way of statutory benefits and seeks credit for that sum.
The settlement offer which has been made by GIO in the sum of $171,680 has been calculated as follows:

·        $51,680 by way of buffer for past economic loss;
·        $115,000 by way of buffer for future economic loss, and
·        $5,000 in respect of disbursements incurred by Mr Brown.

REVIEW OF THE EVIDENCE

Mr Brown was born on 20 April 2958 and is now 63 years of age.
Mr Brown completed school at year 10. After leaving school he worked with the Department of Immigration. He subsequently completed an Associate Diploma in Agriculture. His work history includes management work on properties, management of the Aboriginal Lands Council at Baruyulgil, management of an employment development programme at Quirindi and work as a machine operator with Grafton City Council.
Mr Brown worked with the NSW Police Force as an Aboriginal Community Liaison Officer from 2009 until he resigned on 26 March 2015. He had a lengthy history of workplace conflict with various absences from work because of either an adjustment disorder, anxiety and/or depression in 2012, 2013, 2014 and 2015. At the time of his resignation Mr Brown was unfit for work by reason of anxiety and depression following bullying and harassment.
Mr Brown was unfit for work until 2016 or 2017 (he was unable to recall) when he commenced work as a truck driver. He worked on the upgrade of the Pacific Highway in Northern New South Wales. He was driving tip trucks and water trucks for water management.
He was not working at the time of the accident.
Mr Brown had a pre-existing history of injury to the right knee, left elbow, left arm, gout, left ankle and fibula and a history of depression and alcohol dependence.
On 17 October 2017 Dr Andrew Black reported ongoing right knee pain with limited exercise capacity. He recorded a left ankle fibula fracture, diabetes mellitus and depression. Mr Brown was referred to Dr Michel Genon, Orthopaedic Specialist.
On 9 November 2017 Dr Barrell reported Mr Brown was incapacitated for work pending right knee replacement surgery. He issued a medical certificate to Centrelink verifying osteoarthritis to the right knee and ankle with symptoms of pain, swelling, decreased range of movement, inability to lift knees bent and restricted activities of daily living. Centrelink assessed a temporary work capacity of 0-7 hours per week and suggested future work capacity is expected to reach 15-22 hours per week.
In the Application for Personal Injury Benefits Mr Brown reported he sustained the following injury in the accident:

·        Left shoulder tear 13 cm;
·        Neck pain;
·        Left arm pain;
·        Numbness in fingers, and
·        Psychological trauma.
In his statement dated 12 April 2018 Mr Brown stated:

I can’t sleep at nights because of my damaged left arm which sustained a 13 cm rip of the main tendons that are responsible for lifting the arm. .……….
Because I have had three near misses and this recent accident I feel very unsafe on this road and I have started back on my depression medication, where prior to the accident I was off my antidepressants for three month (sic) and doing very well.
I stay up at night thinking about my near mises as well as my accident and I genuinely fear for my safety if ever I have to travel this stretch of road. I try to avoid driving on this stretch of road at all costs.

I do not feel confident in driving trucks anymore and I feel fear when I pass trucks with work equipment on board. I feel unsafe because of the unsafe work practices of the sub-contractors who are continually on our roads and within our village of Tucabia.
After the accident Mr Brown first consulted Dr Barrell on 16 January 2018 and again on 1 February 2018 when he reported:

Patient still complaining of pain in the right groin that comes up from the knee. Feels injury interfering with his ability to mow lawns, carry an extendable step ladder and use it for cleaning gutters. Currently not on leave from any company, awaiting specialist review by Dr Genon on 19 February 2018. Ultrasound did not reveal any significant groin injury or tears. Right knee was hit against steering wheel on rollover, pain on extricating self out of passenger seat as driver’s window against ground.
Mr Brown consulted Psychologist Annaliese Grace on 20 February 2018. She reported since the accident Mr Brown had needed to be re-medicated for his anxiety and has ongoing psychological trauma. Mr Brown stated he could no longer travel on the road where the accident occurred, he felt frustrated that safety standards were not followed and felt unsafe when travelling. Ms Grace also reported Mr Brown had an overall increase in his anger symptoms and became easily frustrated.
On 4 April 2018 Mr Brown was assessed by Dr Michel Genon in relation to his shoulder injury. In a report dated 10 August 2019 he reported Mr Brown had ongoing shoulder pain since the accident and recommended rotator cuff tendon repair.
On 22 April 2018 Mr Brown was assaulted. He was punched in the head, knocked to the ground, and then stomped on. He sought treatment in respect of injury to the left ankle, left calf, left hand and flashing in the right eye. On 21 June 2018 Dr Genon reported a CT scan of the left ankle showed degenerative changes within the ankle together with the presence of several loose bodies.
In a report dated 10 August 2019 Dr Michel Genon stated Mr Brown had pre-existing osteoarthritis in his right knee which was significantly worsened by the accident.
On 12 October 2018 Mr Brown underwent right total knee replacement surgery under the care of Dr Matthew Broadhead. Following surgery Mr Brown underwent physiotherapy but continued to complain of significant stiffness. In a report dated 19 December 2018 the physiotherapist stated Mr Brown had progressed very slowly, he was apprehensive, and reluctant to move his knee into any pain. In a report dated 5 February 2019 Dr Broadhead reported Mr Brown’s main issue was stiffness and stated he had been slow to progress despite encouragement from his physiotherapist.
Dr Genon performed a manipulation under anaesthesia of Mr Brown’s right knee on 7 February 2019.
On 31 May 2019 Mr Brown underwent a left shoulder rotator cuff repair and sub-acromial decompression under the care of Dr Genon. Apparently 12 weeks post-surgery Mr Brown had returned to driving trucks.
On review by physiotherapist Dominic Bullock on 26 September 2019 he reported Mr Brown was going well and doing everything he needs to on a day to day basis with this arm, working in the truck basically full time.
Mr Brown underwent a left ankle arthroscopy under the care of Dr Genon on 8 November 2019. This is a non-accident related injury.

THE MEDICO LEGAL EVIDENCE

Dr Peter Conrad assessed Mr Brown on 19 November 2019. He recorded Mr Brown was unemployed at the time of the accident but looking for work. Subsequent to his employment with the NSW Police Force he had worked as a truck driver delivering building materials and had last worked two months before the accident. He also recorded that three months earlier Mr Brown had started work as a truck driver doing about 15 hours per week but ceased a week earlier as a result of left shoulder pain. Mr Brown clarified that 15 hours per week was the minimum hours worked per week. His hours were variable, and some weeks were full time.
Dr Conrad reported pain and stiffness in the left shoulder and difficulty lifting the left arm above shoulder level. He also reported ongoing pain and stiffness in the right knee causing difficulty with standing, walking and going up and down stairs. Notably he was wearing a CAM boot at the time of the consultation following the left ankle arthroscopy. No doubt this contributed to his incapacity for work at that time.
Dr Conrad expressed the view Mr Brown would not be able to do prolonged work as a truck driver but could do light driving 12 to 15 hours per week providing, he does not have to do loading, unloading or long-distance driving. He also suggested Mr Brown could work as a liaison officer working similar hours if there was no excessive standing, walking or lifting.
Mr Brown was assessed by Dr Nicholas Burke at the request of the Insurer on 13 February 2020. The main problem was said to be the left shoulder. Mr Brown described constant low-level pain exacerbated by overhead or reaching-type activity or lying on the left shoulder. Dr Burke also reported pain extending from the knee through to the groin, stiffness of the knee and an inability to straighten the knee. Whilst not accident related Mr Brown also described ongoing pain in the left ankle, particularly when using stairs, steps and walking on uneven ground.
Dr Burke reported Mr Brown can use a ride-on mower and do activities around the house such as cooking, cleaning, washing, shopping although he generally favours his right hand.
Dr Burke concluded Mr Brown suffered a soft tissue injury of the left shoulder with the development of a rotator cuff rear and also developed an exacerbation of the quite significant degenerative arthritis affecting the left knee. He noted Mr Brown had been referred to an orthopaedic surgeon in relation to the left knee prior to the accident suggesting there were indications for definite surgery pre accident.
In relation to capacity for work Dr Burke concluded Mr Brown could work as a truck driver but preferably with automatic vehicles. He did not address Mr Brown’s capacity for loading and unloading vehicles.
MAS Assessor Hyde Page issued a certificate dated 21 December 2020. He reported Mr Brown was already on the waiting list at Grafton Hospital to have a right total knee replacement for severe osteoarthritis before the accident. He reported ongoing pain in the left shoulder and difficulty with overhead activity. Mr Brown was disappointed with the right total knee replacement, continuing to suffer from soreness, a constant ache and stiffness in the knee. He noted Mr Brown was not working, having worked for a few months earlier in 2020 as a truck driver before the work tapered off.
MAS Assessor Hyde Page concluded Mr Brown sustained a strain to his left shoulder and that the ongoing treatment and ongoing pain and discomfort was purely a consequent of the injury suffered in the accident. However, he concluded there was no clear evidence of injury in the accident sufficient to significantly aggravate the pre-existing right knee condition.
Dr Robert Wotton, Psychiatrist assessed Mr Brown on 19 November 2019. He reported Mr Brown was experiencing high levels of anxiety, depressive symptoms, and anger/irritability. He also recorded Mr Brown was excessively tired and had lost enthusiasm for activities he formerly enjoyed. He noted Mr Brown had a diagnosis of Adjustment Disorder with Depressed and Anxious Mood in 2012 and that medical records indicate a history of alcohol dependence and gambling problems.
Dr Wotton diagnosed Post-traumatic Stress Disorder because of the accident. He recommended further ongoing psychological assistance and review and supervision of medication. He was of the opinion Mr Brown was fit from a psychological point of view for full time employment as a truck driver.
Dr Angelo Virgona, Psychiatrist assessed Mr Brown at the request of the Insurer on 25 November 2020. At that time Mr Brown had not worked for three or four months stating, “jobs had dried up”. Since the accident he had been working as a casual truck driver, working “on and off”.
Dr Virgona noted Mr Brown had a long psychiatric history pre-dating the accident and concluded he had a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood, with a fluctuating Substance Use Disorder and Gambling Disorder before the accident. He thought those disorders were in partial remission but aggravated by the accident. He stated Mr Brown developed acute stress symptoms following the accident but did not go on to develop PTSD. He concluded Mr Brown’s ongoing symptoms were consistent with a Chronic Adjustment Disorder.
Dr Virgona concluded despite his issue with trucks (fearful of driving near trucks, driving cautiously and on alert) Mr Brown had returned to his pre-accident role and worked in his usual manner (casually, on and off). He felt there was no impediment to retraining. In assessing permanent impairment Dr Virgona concluded Mr Brown’s psychiatric symptoms would lead to a mild negative impact on his global capacity for work.
MAS Assessor Paul Friend issued a certificate dated 8 January 2021. He obtained a detailed history and diagnosed a Major Depressive Disorder with Melancholic Features. He stated:

“Mr Brown since the motor accident has been increasingly depressed has had suicidal thoughts from time to time, a poor appetite and has lost a significant amount of weight, has a poor level of energy, repeated wakening after 2-3 hours from sleep and having difficulty getting back to sleep and has lost motivation and interest. He feels incompetent. He has lost confident in his abilities. He cannot see a future. He neglects his personal appearance whereas previously he had neatly groomed, close cropped hair and showered and dressed every day.
Mr Brown also reaches criterion for the condition of Alcohol Use Disorder. He consumed 90g of alcohol prior to the motor accident. Two days each week, but now consumes 90g of alcohol each day. The alcohol consumption prior to the motor accident was just above the recommendations of National Health and Medical Research Council, but it did not interfere with his day-to-day activities or ability to work, but 90g each day is excessive and risky alcohol consumption and would interfere with his ability to do day-to-day activities and to resume working.”
Somewhat surprisingly MAS Assessor Friend concluded Mr Brown did not have any psychiatric/psychological symptoms at the time of the accident. I prefer the opinion of Dr Virgona having regard to the detailed history he recorded of Mr Brown’s pre-existing psychological symptoms as recorded in the clinical notes of the general practitioner including in March, May, October, and November 2017.

SHOULD I APPROVE THE SETTLEMENT

Because Mr Brown has not been assessed as having a whole person impairment in excess of 10%, he is not entitled to damages for non-economic loss or pain and suffering.
I am satisfied that Mr Brown is aware of his right to have the Insurer pay reasonable ongoing treatment expenses for the remainder of his life.
Mr Brown understood that the settlement was only in respect of his entitlement to damages for economic loss, that is wage loss arising from the accident.
I am satisfied Mr Brown understood the Insurer will be required to secure a Notice of Charge from Centrelink prior to release of the settlement monies. I am also satisfied Mr Brown understood there may be a repayment payable out of the settlement sum in respect of payments received from Centrelink since the accident. I informed Mr Brown, in that event, the settlement sum of $170,000 would be reduced by the amount of the Centrelink charge. I offered Mr Brown an adjournment to make enquiries with Centrelink about the amount of the repayment, but he declined.
I also informed Mr Brown there may be a preclusion period which may prevent him from receiving payments from Centrelink for a future period, although Mr Williams pointed out the preclusion period has probably already expired. Again, Mr Brown did not wish to delay approval of the settlement.

Mr Brown had heard about the possibility of a 10% payment. I explained to Mr Brown that related to an obligation to repay monies to Medicare for treatment related to the injury. Mr Williams advised the Insurer was not deducting and paying monies to Medicare under the Health and Other Services (Compensation) Act, 1995 (Cwlth) in respect of settlements under the Act.
I advised Mr Brown if a charge is raised by Medicare in respect of treatment expenses paid by Medicare relating to this injury, he should ask the Insurer to pay that charge as part of their obligation to pay reasonable treatment costs.

Past loss of earnings

Taxation Returns for the financial years ended 30 June 2015 to 30 June 2020 have been provided. They disclose the following gross income:

·        30 June 2015 - $60,225 (NSW Police Force).

·        30 June 2016 - $30,578 (NSW Police – retired – presumably workers compensation payments).

·        30 June 2017 - $35,423 (M & V Sheather Pty Ltd).

·        30 June 2018 - $20,263 (Green Acres Hydromulching Pty Ltd $10,326 and Newstart $9,937).

·        30 June 2019 - $15,530 (Newstart).

·        30 June 2020 - $26,480 (Craig Pemberton Pty Ltd $4,491, ALB Haulage Pty Ltd $3,738, AAI Limited – this claim $1,279 and Newstart $16,971).
It is now over three years since the accident and as demonstrated by Mr Brown’s taxation returns his earnings since leaving his employment with the NSW Police Force have been significantly less.
When assessing the loss of earnings in the three years since the accident I am mindful of the following:

·        Mr Brown was certified unfit for work by reason of his pre-existing right knee condition as at the date of accident.

·        Mr Brown was as at the date of accident contemplating right total knee replacement surgery and it was likely he would not have returned to employment prior to that surgery taking place.

·        The right total knee replacement surgery took place on 12 October 2018 so any incapacity for work up until that date would have been largely because of the pre-existing right knee condition.

·        Mr Brown sustained injury in the assault on 22 April 2018 which would have contributed to his incapacity. Any incapacity for work because of the left ankle arthroscopy on 8 November 2019 was not accident related.

·        Between ceasing work with the NSW Police Force on 26 March 2015 and the accident on 21 December 2017 Mr Brown was either unfit or did not work until he secured employment with M & V Sheather Pty Ltd.

·        Mr Brown had a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood, with a fluctuating Substance Use Disorder and Gambling Disorder before the accident. Whilst Dr Virgona was of the view that condition was in remission it is significant that Mr Brown was seeking treatment for his psychological condition up until the accident although there is no doubt it was aggravated by the accident.
I am satisfied that the sum of $51,680 inclusive of the sum of $1,680 paid in statutory benefits reasonably reflects Mr Brown’s loss of earnings because of the accident and is within the range of damages likely to be awarded.

Future loss of earnings

I accept that the most likely future circumstances for Mr Brown, but for the accident was continued employment, on a casual and sporadic basis as a truck driver.
Mr Brown is now 63 years of age and unlikely to work past retiring age of 67 years.
Mr Brown has not earnt more than $35,000 odd per annum since commencing work as a truck driver in or about 2016. He indicated that he is currently not working because work has been sporadic and tapered off.
Mr Brown had several pre-existing health conditions which may have resulted in periods of incapacity for work. In addition, Mr Brown has a degree of ongoing disability from the left ankle injury resulting from the April 2018 assault.
In Penrith City Council v Parks [2004] NSWCA 201, Justice Giles stated

I consider that it is still open to assess damages by way of a so called ‘buffer’. The occasion for a buffer is when the impact of the injury upon the economic benefit from exercising earning capacity after injury, is difficult to determine. There is still a comparison between the economic benefits, although the difference cannot be determined otherwise than by the broad approach by buffer.
I am satisfied that it is appropriate in this matter to assess future wage loss by way of buffer and I consider the buffer of $115,000 to be acceptable and within the range likely to be awarded.

Costs and disbursements

The Insurer has allowed the sum of $5,000 to cover disbursements. Mr Brown obtained reports from Dr Conrad and Dr Wotton and obtained clinical records from Dr Barrell.
I agree Mr Brown is not entitled to recover the cost of legal representation because Mr Panuccio is not a legal practitioner.
Having regard to the scale fee payable for medical report fees I consider the sum of $5,000 for disbursements to be reasonable.

CONCLUSION

I find the timing requirements of s 6.23(1) of the Act is satisfied where the accident occurred over two years ago.
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 Mr Brown.
I am satisfied Mr Brown is aware the Insurer proposes to deduct from the settlement sum $1,680 in respect of statutory payments already received by Mr Brown. I am also satisfied Mr Brown is aware of the obligation to repay any charge raised by Centrelink.
I am satisfied Mr Brown is aware he can seek legal advice but does not wish to do so.
I am satisfied Mr Brown understands the binding nature of the settlement and that he will be precluded from making a further claim for damages arising out of the accident. I am satisfied Mr Brown is willing to accept the proposed settlement.
Accordingly, pursuant to s 6.23(2(b) of the Act I approve the settlement of Mr Brown’s claim for damages.

Susan McTegg

Member (Motor Accidents Division)

Personal Injury Commission

[2021] NSWPIC 106

7 May 2021