CIC Allianz Insurance Limited v Ristevski
[2023] NSWPIC 400
•1 August 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | CIC Allianz Insurance Limited v Ristevski [2023] NSWPIC 400 |
| Claimant: | Jordanka Ristevski |
| insurer: | CIC Allianz Insurance Limited |
| Member: | Shana Radnan |
| DATE OF DECISION: | 1 August 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval $225,000; 81-year-old female; non-economic loss only; right shoulder aggravation of rotator cuff tear; psychological injuries, PTSD and major depressive disorder; section 6.23; Held – proposed settlement is just, fair and reasonable; settlement approved. |
| determinations made: | CERTIFICATE Issued under s 6.23 of the Motor Accident Injuries Act 2017 1. 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. |
STATEMENT OF REASONS
INTRODUCTION
On 5 December 2018, Jordanka Ristevski (the claimant) was a passenger on a bus route 445 at Norton Street (stop identification 204025) who fell as a consequence of the driver making a sudden move before she had reached her seat. She is aged 81 years at the time the application is determined.
The claimant attended upon her general practitioner the following day. An X-ray was performed and a previous rotator cuff tear was aggravated by the sudden fall.
She attended upon Dr Strokon, orthopaedic surgeon and was prescribed physiotherapy. He recommended shoulder arthroplasty, however the claimant did not wish to undertake the surgery.
In a subsequent unrelated fall the claimant sustained a fracture to her forearm.
The claimant also complained of psychological injury and has been diagnosed with post- traumatic stress disorder and adjustment disorder.
Dr Vickery assessed the claimant for psychological injury on 30 November 2021 and considered the claimant was not yet stable.
A further report of Dr Strokon was received by the insurer in September 2022 which noted further shoulder restriction and the insurer subsequently conceded an entitlement to non-economic loss.
The agreed injuries are-
(a) aggravation to right shoulder rotator cuff
(b) psychological injury – post- traumatic stress disorder and adjustment disorder
The claimant has made a claim against CIC/Allianz (the insurer) of the at fault vehicle, for lump sum damages in an application for common law damages dated 2 May 2021 (document A24). By Liability Notice (document A26) dated 11 August 2021, the insurer wholly admitted liability for the common law damages claim.
The insurer has accepted that the claimant had sustained non-minor injuries and pursuant to Division 3.4 of the Motor Accident Injuries Act 2017 (the MAI Act) upon the physical aggravation to her right shoulder and ongoing psychological injuries sustained and confirmed she is receiving ongoing treatment where required.
The insurer relied upon the assessment of Dr Gothelf dated 13 January 2022 for physical impairment who opined 10% whole person impairment for shoulder injury. There were no notable findings in the claimant’s cervical spine. (document A25). A report of Dr Strokon dated 20 June 2023 confirmed further deterioration of the right shoulder (document AD3) was relied upon to concede the threshold issues and an entitlement to non-economic loss.
The claimant was aged 76 at the date of the motor vehicle accident and was a pensioner. There is no claim for economic loss past or future.
The claimant commenced attending Ms Newton for psychological treatment on 24 June 2020. The treatment is ongoing as the claimant noted anxiety around buses, fear of further injury, loss of enjoyment in participating in daily activities, low mood and motivation.
Dr Strokon has provided further treatment to the claimant’s right shoulder by way of steroid injection on 11 August 2022. The investigations undertaken revealed significant degenerative changes and restriction of movement. He again recommended shoulder arthroplasty and again the claimant decline such treatment. He opined that the condition had reached maximum medical improvement and was unlikely to change.
The claimant and the insurer have agreed to settle the claim for lump sum damages in the increased sum of $225,000. The initial application sum agreed was $170,000 for non-economic loss.
I requested further information in the form of up-to-date clinical records, a report from Dr Strokon and a report from psychologist Libby Newton to ascertain the current status of the claimant’s ongoing injuries and disabilities to form a view on non-economic loss.
The insurer amended their offer in letter dated 12 July 2023 and an amended deed was executed by the claimant on 16 July 2023. It is this amended offer that the parties seek approval.
As the claimant is not represented by a lawyer, the settlement must be approved in accordance with the MAI Act.
JURISDICTION OF THE PERSONAL INJURY COMMISSION
The Personal Injury Commission (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.
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 (the Guidelines) continue to apply.
THE RELEVANT LAW
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 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 conference on 8 June 2023
The parties had initially agreed on the settlement sum of $170,000 for non-economic loss. There was no claim for economic loss. At this preliminary conference with the parties, I discussed the nature of the application and confirmed that I would like to receive a statement from the claimant and her daughter Karolina who is aware of the claimant’s day-to-day functioning and impact of the injuries sustained.
I requested updated treater’s reports to ascertain the present functioning of the claimant as it would relate to my assessment of the appropriateness of the amount agreed upon for non-economic losses.
Preliminary conference on 12 July 2023
In accordance with my earlier direction the following documentation was uploaded to the Commission’s portal:
(a) statement of the claimant dated 28 June 2023;
(b) statement of the claimant’s daughter Karolina Ristevski dated 28 June 2023;
(c) report from Dr Strokon dated 20 June 2023, and
(d) report from Libby Newton psychologist dated 10 May 2023.
The general practitioner was unable to provide updated notes.
A further discussion took place with the parties as to the contents of the updated reports and the impact of the injuries and ongoing pain and suffering experienced by the claimant. Karolina confirmed the contents of the statements.
The insurer upon review of this information and following on from the discussions held, sought further instructions and increased their offer of settlement to $225,000.
I then asked the claimant at this preliminary conference whether she wished to consider the amended offer and a break was offered to enable her to reflect on her position and consider the offer privately with her daughter. She availed herself of this and returned wherein she and her daughter expressed her willingness to accept the amended offer.
I then discussed the nature of the application and confirmed that the claimant was aware that she could still undertake ongoing treatment as requested in February 2023. I confirmed her understanding of the terms of settlement and that treatment costs and care needs were separate to this agreement. She confirmed she was aware that ongoing treatment needs were still to be addressed by the insurer and thereafter iCare.
I questioned the claimant as to her understanding of what the settlement meant, its finality and offered her the ability to obtain legal advice prior to finalising the matter.
I was informed by the claimant, she did not want to retain a solicitor and was happy with the amended amount of $225,000 for her claimed damages and stated “I am very happy with the settlement thank you.”
I also questioned the claimant’s daughter as to whether she would like further time to consider the matter and I was advised “no we are very happy with the outcome and we would like it approved”.
Amended terms of settlement dated 19 July 2023
The insurer confirmed the amended offer had been agreed to by the claimant and submitted an updated submissions to the application on 19 July 2023.
I was requested to approve the amended terms of settlement.
DOCUMENTS CONSIDERED
I had regard to the following relevant documents contained in evidence bundle of 565 pages:
· Liability:
application for statutory benefits dated 25 January 2019;
application for common law damages dated 2 May 2021;
liability notice dated 11 August 2021, and
transit system incident report dated 22 January 2019.
· Treating medical records:
updated report Dr Strokon dated 20 June 2023 (document AD3);
various other reports of Dr Strokon (documents A8, A11, A13, A14, A16, A17, A21, A22, A27 and A30);
updated report Libby Newton dated 10 May 2023 (document AD4);
various other reports of Ms Newton (documents A12 ,A18, A20, A29 and A31);
report Dr Vickery dated 17 December 2021 (document A23);
patient history records Leichhardt medical (document A9 and A28);
rehabilitation records Pinnacle Rehab (documents A7, A10, and A15);
imaging right shoulder dated 6 December 2018 (document A3);
medical certificate dated 25 January 2019 (document), and
report of Dr McGill dated 14 February 2019 rheumatologist (document A5).
Statements:
Jordanka Ristevski dated 28 June 2023 (document AD2), and
Karolina Ristevski dated 28 June 2023 (document AD1).
· Settlement documents:
Initial settlement agreement dated 23 May 2023 and executed on 6 June 2023, and further amended documents dated 16 July 2023.
REVIEW OF THE EVIDENCE
Statement of the claimant
The claimant confirmed in her statement the impact of the injuries sustained in the bus incident.
Whilst she reported improvement to her neck and knee, the injuries to her right shoulder have not improved. She reported in her statement:
“…my shoulder never stopped hurting me and still hurts me every day. I cannot do the laundry or do my usual household activities. I need help getting in and out of the car. I struggle to get dressed and I cannot put my bra on, and I need my husband to help me every morning. I cannot reach for things with my right shoulder to get something. If I have a coffee on the table and its not close to me I cannot reach to get it. I cannot wash my hair or brush my teeth, every day is a struggle because I can’t move my shoulder without pain.”
The claimant reported significant nightmares, fear of travelling on a bus, lack of motivation and social withdrawal.
She stated “most days I feel flat and don’t enjoy things anymore/I don’t want to see my friends or go out anywhere. Sometimes I don’t want to even see family because I feel ashamed.”
Statement of the claimant’s daughter
Karolina gave details of the impact of the injuries sustained on her mother’s ability to function. She reported “Her significant tear of the rotator cuff and the rupture of the long head of the biceps has left her with persistent pain and weakness in the right shoulder. She has great difficulty performing activities of daily living or even getting dressed.”
As to psychological impact she reported “her mental wellbeing has suffered as a direct result. My mother is scared to travel on a bus and her quality of life is diminished because of pain and phobias”. The accident has “thrust my mother into feelings of despair, including but not limited to anxiety and depression, where she has been robbed of all the things she enjoys.”
INJURIES
Upon review of the medical information, I am satisfied that the material produced establishes the claimant sustained a significant aggravation of her right shoulder rotator cuff tear and that due to the constant pain, she has developed psychological injuries of post-traumatic stress disorder and depression. She has been actively attending cognitive behaviour therapy to assist in the management of travel phobias. Incidents of nightmares have reduced according to the clinical records of Ms Newton.
The information contained in the psychologist’s clinical records also reveal other stressors such as her husband’s health problems, these stressors are separate to the motor accident injuries.
The reports of Dr Strokon confirm that the claimant has marked restriction of movement in her right shoulder and the steroid injections had not produced any significant benefit. He opined her prognosis was “poor”.
As the claimant does not intend to undertake the reverse shoulder arthroplasty her condition is unlikely to change for the remainder of her life.
SHOULD I APPROVE THE SETTLEMENT
I am satisfied that the amount allocated in the settlement for non-economic loss in this matter is within the range of likely potential damages assessments for the claim were the matter to be assessed by a Member of the Commission, taking into account the nature and extent of the injuries initially sustained, the age of the claimant and the impact on the day to day life of the injuries upon the claimant as confirmed by the claimant, her medical team and her daughter.
The claimant is aware of the provision of treatment and care is separate to the damages herein and that she is able to approach the insurer for ongoing support for treatment and care.
CONCLUSION
I am satisfied the proposed settlement of $225,000 is just, fair and reasonable and within the range of likely potential damages assessments if the claim was to proceed to assessment by a Member of the Commission taking into account the nature and extent of the claim, the injuries, disabilities, impairments and losses sustained by the claimant.
I am satisfied the claimant was aware she could seek legal advice but chose not to avail herself of legal representation.
I am satisfied the claimant understands the binding nature of the settlement and that she will be precluded from making a further claim for damages arising out of the subject accident.
I am satisfied the claimant was willing to accept the proposed settlement and her decision to accept it was of her own volition.
I am satisfied the claimant is aware that there are no deductions to be taken from the proceeds of settlement.
Accordingly, pursuant to s 6.23(2(b) of the MAI Act I approve the settlement of the claimant’s claim for damages.
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, and
· Motor Accident Guidelines 2017/Personal Injury Commission Rules 2021.
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