BWH v Insurance Australia Limited t/as NRMA Insurance

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	BWH v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 337
CLAIMANT:	BWH
INSURER:	Insurance Australia Limited t/as NRMA Insurance
SENIOR MEMBER:	Brett Williams
DATE OF DECISION:	26 June 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval under section 6.23(2)(b); claimant in late 20s; suffered non-displaced fracture of the left ankle with associated soft tissue injury, soft tissue injury to the left knee and post-traumatic stress disorder (PTSD); residual symptoms and limitations in the left ankle; knee injury resolved; ongoing psychological symptoms; Medical Assessors certified permanent impairment not greater than 10%, PTSD 5%, left ankle 4%; no entitlement to damages for non-economic loss; approximately a week off work after the accident; returned to work; some limitations due to left ankle injury and PTSD; no current loss of income; allowance for past and future economic loss; total settlement amount $250,000 less $2,422.87 on account of weekly compensation; Held – proposed settlement approved.
DETERMINATIONS MADE:	CERTIFICATE 1. The proposed settlement of $250,000 all inclusive is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017.

STATEMENT OF REASONS

BACKGROUND

BWH was injured in a motor accident at Fairfield Heights on 18 September 2020 (accident). In addition to a claim for statutory benefits, with respect to which she has received weekly payments, BWH made a claim for damages under the Motor Accident Injuries Act 2017 (MAI Act) on Insurance Australia Limited t/as NRMA Insurance (insurer). The insurer accepted liability for the damages claim.
On 22 April 2024 the insurer made an offer to the claimant to settle her claim for $250,000 all inclusive (offer). The offer included the following allowances:
·        non-economic loss             Nil
·        past economic loss            $13,850
·        past superannuation          $1,523.50
·        Fox v Wood (s 4.5(1)(d))    $650
·        future economic loss          $230,000 (inclusive of superannuation)
The total of these sums is $246,023.50. The insurer rounded that amount up to $250,000. From that sum, $2,422.87 is to be deducted on account of weekly payments of statutory benefits paid by the insurer to BWH. On 23 April 2024 BWH accepted the offer.
The offer having been accepted, the proposed settlement is $250,000 inclusive of weekly payments of $2,422.87 (proposed settlement). As BWH is not legally represented, approval of the proposed settlement by the Commission is required: s 6.23(2)(b) of the MAI Act. The application for approval of the proposed settlement, lodged by the insurer, is now before me for consideration.

STATUTORY PROVISIONS

Restrictions on the settlement of a claim for damages are found in s 6.23 of the MAI Act, which is, relevantly, in the following terms:
“6.23 Restrictions on settlement of claim for damages
(1)      (Repealed)
(2)      A claim for damages cannot be settled unless—
(a) …
(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 states as follows:
“7.37 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 satisfies 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.”
Procedural Direction MA3 concerns the requirement for the Commission to approve the settlement of a claim for damages in circumstances where the claimant is not represented by an Australian legal practitioner, and the process for obtaining the Commission’s approval of the settlement of the claim.

PRELIMINARY CONFERENCE

I conducted a preliminary conference with BWH and the insurer’s solicitor on
25 June 2024. BWH confirmed that she understood that from the amount of $250,000, the sum of $2,422.87 will be deducted on account of weekly payments of statutory benefits she received from the insurer. She also understood that the proposed settlement was to be paid as a lump sum on a once and for all basis, and that if approved, the settlement would bring to an end her rights to damages under the MAI Act in relation to the accident. BWH confirmed that, while she was aware that she could be legally represented in relation to her claim, she did not wish to be represented.
BWH told me that her left knee injury had resolved. She still experiences pain and discomfort in her left ankle. Exercise physiotherapy was helping. She experiences pain after standing for long periods. Supportive footwear assisted with this. BWH explained that she continued to experience hypervigilance, and some difficulties with concentration. She told me that she had adapted to these symptoms.
BWH confirmed that she had approximately a week off work after the accident, and then had a few days off “here and there” in the proceeding months. She received weekly payments from the insurer for the time she had off work. She was working part-time before the accident, and initially returned to part-time work after having a week off. She then worked full-time before taking maternity leave, and has been working part-time since she returned from maternity leave. BWH explained that she was working part-time to balance her work and family responsibilities. She confirmed that she was not working part-time as a result of her injuries.
BWH told me that her work was flexible, and this allowed her to manage the ongoing effects of her injuries. She was concerned about what might happen should she leave her present employer.
BWH confirmed that she understood the proposed settlement included an allowance for past economic loss, and that the bulk of the settlement reflected an allowance for future economic loss. She also understood that there was no allowance for non-economic loss. BWH confirmed that she wanted to accept the proposed settlement and that she wanted me to approve it.

EVIDENCE

The documentary evidence is contained in the application lodged by the insurer. BWH confirmed at the preliminary conference that she had seen this material and did not wish to add anything to it for the purposes of the approval.
The documents include claim forms, certificates of capacity, medical reports, records from treatment providers, reports from rehabilitation providers, employment records, and the certificates and reasons issued by Medical Assessors. I have considered all this material.
Some of the material provided by the insurer relates to previous injuries and illnesses, including a back injury at work in early 2017 following which radiology identified a protrusion at L4/5 and bulging at L5/S1. There were referrals for treatment and time off work associated with this injury.
A discharge referral from Fairfield Hospital dated 18 September 2020 records that BWH presented after being hit by a car. Her left ankle was tender and swelling was noted. Radiological investigations confirmed a mildly displaced tibial fracture. She was discharged with a Cam boot and crutches and advised to present the following morning.
A report related to an MRI of the left ankle dated 9 October 2020 confirmed a healing non-displaced fracture of the posterior process of the tibia. Alignment was satisfactory. Additional findings included low-grade strain of the deltoid ligament, complete tear of the anterior inferior tibiofibular ligament, partial injury of the anterior talofibular ligament, and small effusion.
An application for personal injury benefits dated 24 September 2020 includes a description of the accident and records that BWH suffered a broken left ankle, a bruised knee, and an abrasion of her left knee as a result of the accident.
A certificate of capacity dated 24 September 2020 records that BWH had no capacity for work from 18 September 2020 to 25 September 2020, and that she had capacity for some work from 28 September 2020 to 12 October 2020 for 6-7 hours a day, 5 days a week. A certificate dated 18 December 2020 certified her as having capacity for some work from 28 December 2020 to 15 January 2021 for 6-7 hours a day, 5 days a week. There was a brief period between 18 January 2021 and 22 January 2021 during which she was certified as having no capacity for work. Between 17 January 2021 and 14 February 2021 BWH was again certified as having capacity for some work for 6-7 hours a day, 5 days a week.
The records from ForHealth Fairfield cover the period April 2004 to May 2012. I have considered those records. The records of Fairfield Chase Medical & Dental Centre relate to attendances between March 2013 and August 2022. The clinical notes confirm that BWH attended the practice on 22 September 2020 with a history of having been “run over” outside her driveway the previous Friday. It is noted that she was treated at Liverpool Hospital following the accident, that her ankle was bruised and swollen, and that she was using a moon boot.
BWH was referred to Dr Lieu, orthopaedic surgeon, in relation to her left ankle injury. In a report dated 30 December 2020 the doctor recorded that BWH’s medial malleolus numbness was decreasing, as was irritation in her medial and lateral ankle. It is recorded that she had no irritation around her syndesmosis and had a stable ankle with a good range of motion of dorsiflexion and plantarflexion. There was some mild impingement pain in plantarflexion but not dorsi flexion. The report records that the doctor expected BWH to improve over the proceeding three months, and that she should be able to return to all regular activities. There was a small chance of progressive ankle arthrosis in the future. The doctor discharged her from his care.
Dr Mitchell, occupational physician, reported to the insurer’s solicitor on 14 November 2022. The doctor recorded that BWH continued to experience pain in her left ankle and proximal foot, which would be aggravated with any long periods of standing without movement as well as after walking over any significant distances. She reported that she was fully independent with respect to her personal activities of daily living, and that she carried out lighter physical activities within the home. Her symptoms had been stable for more than 12 months.
Dr Mitchell diagnosed a fracture of the left distal tibial bone as a result of the accident. The prognosis was “reasonably good”. BWH had, in his opinion, a capacity for suitable work that avoided any aggravation of the reported symptoms. In his opinion, providing the following precautions were taken, she should be able to manage such work on a full-time basis: prolonged walking, particularly over uneven or sloping ground surfaces should be avoided, as should frequent step climbing, kneeling, and crouching actions. In a separate report the doctor assessed a 4% permanent impairment attributable to the left ankle injury.
Employment records, that include contracts of employment, contract variations, pay records and medical certificates, have been considered, as have exercise therapy reports.
Medical Assessor Home gave a certificate and reasons dated 12 February 2024. The Medical Assessor found that as a result of the accident BWH suffered a fractured left ankle. The fracture had healed with residual post-traumatic stiffness of the ankle and hind foot. She also suffered a soft tissue injury to her left knee (a skin abrasion), from which she had made a full recovery. The Medical Assessor’s reasons record that BWH reported symptoms of activity related left ankle pain. She reported a sensation of instability or wobbling at the ankle joint, but she does not fall over. She experiences constant swelling of the ankle that increases with activity. Abrasions to her leg have resolved. There was no local knee pain or swelling.
The reasons record that BWH reported a walking tolerance of 15 minutes, that she is able to perform deep crouching, ascend stairs with normal cadence, and that she descends stairs asymmetrically. Her sleep pattern was mildly disrupted. She estimated a capacity to lift moderate weight, and had resumed undertaking her share of domestic chores. The reasons record that the claimant’s work was predominantly sedentary office-based duties attached to a school. She was working three days a week.
Medical Assessor Home determined that there was no impairment of the left knee, the injury having resolved. There was a 4% impairment of the left ankle. He certified that the left ankle and knee injuries did not give rise to a permanent impairment that was greater than 10%.
On 26 February 2024 Medical Assessor Barrett certified that Post-traumatic Stress Disorder caused by the accident did not give rise to a permanent impairment that was greater than 10%.
In her reasons, Medical Assessor Barrett recorded that BWH returned to work, part-time, in August 2023 having previously taken one year of maternity leave. She was working 21 hours a week. She had predominantly worked part-time, except for a period when she increased her hours to full-time work in 2021, prior to going on maternity leave.
The Medical Assessor recorded that BWH continues to experience some intermittent pain in her left ankle, and swelling if she walks a lot. She can perform pre-accident activities but has to limit the duration of the activities. For example, she can only walk for periods of less than 10 or 15 minutes. About two or three times a week, her sleep is impacted by pain or numbness.
Medical Assessor Barrett recorded a range of psychiatric symptoms following the accident, and that BWH was referred to a counsellor, and underwent treatment. There was no significant improvement in her symptoms. She was referred to a psychologist for treatment in mid-2023 and has seen the psychologist once every two weeks. Details of BWH’s current functioning are recorded, including the following:
“She reports reduction in her capacity to concentrate from premorbid capacity of one to two hours, to now, half an hour, due to distractibility. Poor concentration is a recognised symptom of PTSD.
Objectively at assessment she was somewhat over-inclusive, secondary to anxiety, and I accept this would impact her efficiency.
Noting she can concentrate for about 30 minutes, and she has been able to continue working in her usual role, the impairment would be regarded as fulfilling the PIRS definition of a mild impairment.”
The Medical Assessor determined that the Post-traumatic Stress Disorder caused by the accident gave rise to a permanent impairment of 5%.

SUBMISSIONS IN SUPPORT OF THE APPROVAL

The insurer relies on submissions dated 6 May 2024 in support of the application for approval of the settlement. The submissions canvas the medical evidence, including the certificates and reasons given by Medical Assessors Barrett and Home.
The submissions confirm that there is no allowance in the settlement for non-economic loss, Medical Assessors Barrett and Home having certified that BWH’s accident caused injuries did not result in a permanent impairment that was greater than 10%.
The insurer submits the medical evidence establishes BWH was unfit for work, as a result of the accident, for 12 days in total, and that any absences from employment since 23 April 2021 are unrelated to the accident. The submissions record that since the accident, BWH gradually increased her work hours as follows:
(a) from 25 October 2021 work hours increased to 35 hours per week, three hours more than pre-accident capacity, and
(b) from 1 December 2021 to 30 June 2022 work hours increased to 38 hours a week, six hours more than her pre-accident.
The insurer submits BWH has been able to return to work in a full-time capacity that exceeds her pre-accident working hours, and that the current part-time working arrangements, following her return to work in August 2023 after maternity leave, are unrelated to the accident.
The submissions record that the insurer has allowed $13,850 for past economic loss, which is reflective of approximately 20 weeks off work at the rate of $692.50 net a week.
In terms of BWH’s future employment capacity, the insurer highlights Dr Mitchell’s opinion that she is able to work full-time with restrictions related to prolonged walking, frequent step climbing, kneeling and crouching. The insurer notes that BWH’s work involves predominantly sedentary, office-based duties, and submits that her role is well within the restrictions identified by Dr Mitchell.
The insurer submits the accident caused injuries have not impacted BWH’s performance in her pre-accident role, and that a buffer allowance is appropriate in the circumstances. On this basis, the offer includes an amount of $230,000 inclusive of superannuation for future economic loss.

DETERMINATION

As a result of the accident, BWH suffered a non-displaced fracture of the posterior process of the left tibia with associated soft tissue injury, together with a soft tissue injury to her left knee. There are residual symptoms and limitations associated with the left ankle injury. The knee injury has resolved. BWH also developed Post-traumatic Stress Disorder as a result of the accident. She continues to experience symptoms associated with that condition, including a reduction in her capacity to concentrate. BWH has made adjustments to reduce the impact that her injuries have on her ability to perform her work duties.
The proposed settlement does not include an allowance for non-economic loss. BWH was assessed by Medical Assessor Home in relation to her physical injuries. As recorded earlier, the Medical Assessor certified that those injuries do not give rise to a permanent impairment that is greater than 10%. Medical Assessor Barrett assessed BWH in relation to her psychological injury and certified that Post-traumatic Stress Disorder caused by the accident did not give rise to an impairment that was greater than 10%. I am satisfied on the material before me that BWH is not entitled to damages for non-economic loss, and that she understands this.
BWH is in her late 20’s, and has many years ahead of her before she reaches retirement age. The residual effects of her left ankle injury and Post-traumatic Stress Disorder may, at some time in the future, give rise to a loss of capacity to earn that will be productive of financial loss.
Dr Lieu expressed the opinion that there was a small chance of progressive ankle arthrosis in the future. Medical Assessor Home certified that the ankle injury gave rise to a permanent impairment. I have taken into account his findings when he examined BWH earlier this year, including:
“There is impaired balance with single leg stance. There is a normal capacity for tandem walking. [She] is able to crouch fully.
There is a small area of reduced sensibility over the medial aspect of the medial malleolus but not elsewhere. There is no other neurovascular abnormality in the foot.
There is a full range of active motion in the toes.
There are no clinical features of CRPS.”
Further, there are the ongoing symptoms related to Post-traumatic Stress Disorder that are documented in the reasons of Medical Assessor Barrett, and that BWH discussed at the preliminary conference.

I am satisfied that the allowance for past economic loss in the proposed settlement compensates BWH for the losses she has incurred to date. I am also satisfied that the allowance for future economic loss is within the range of likely potential assessments for that head of damages if the claim were to be assessed.
I have considered the proposed draft settlement agreement prepared by the insurer. As discussed and confirmed at the preliminary conference, clauses 2 (a) (b) (c) and (e) in the draft agreement are to be removed from the final version of the agreement that is to be signed by BWH. Any amount payable to Medicare is to be re-imbursed to BWH by the insurer.
I am satisfied that 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 BWH. Other than the sum of $2,422.87 there are no other reductions or deductions to the proposed settlement.
I am satisfied that BWH understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.
Having considered the material provided by the insurer, and what BWH told me at the preliminary conference, the proposed settlement is approved.

[2024] NSWPIC 337

26 June 2024